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OFFICIAL OPINIONS
THE ATTORNEYS-GENERAL
Sl|? dommnniuf altl| of iKaHBarI]uarttfi.
PUBLISHED BY THE
ATTORNEY-GENERAL.
Volume III.
From 1906 to 1912 inclusive.
BOSTON :
WRIGHT & POTTER PRINTING CO., STATE PRINTERS,
32 DERNE STREET.
1913.
THIS VOLUME CONTAINS THE OPINIONS OF ATTORNEYS-GENERAL
DAl^A MALOKE, 1906-1910. JAMES M. SWIFT, 1911-1912.
ALSO TABLES OF STATUTES AND CASES CITED, AND AN INDEX DIGEST.
PREFACE.
By chapter 11 of the Resolves of 1913 the Attorney-General was authorized "to collect and publish in a volume properly indexed and digested such of the official opinions heretofore published as an appendix to the annual reports of the attorney-general during the years nineteen hundred and six to nineteen hundred and twelve, inclusive, as he may deem to be of public interest or useful for reference." In pursuance thereof this collection of opinions is published as Volume III. of the Opinions of the Attorneys-General.
It has been my purpose to make this volume in substantial uniformity with the preceding volumes, and it is hoped that future opinions will be published so that there will be a corresponding con- tinuity in the publications from time to time. The work of prepara- tion has been in charge of Frederic B. Greenhalge, Esq., Assistant
Attorney-General.
JAMES M. SWIFT,
Attorney-General.
Boston, November, 1913.
Table of Statutes cited or referred to in this
Volume.
Art. 1, § 2, Art. 1, § 8, Art. 1, § 9,
United States Constitution.
. 268
267, 268, 496
. 267
Art. 4, § 1, . Art. 4, § 2, . Amendment 14,
PAGE
. 438 . 433
. 277
Acts of Congress.
1890, July 2, 26 Stat. 209, c. 647, . 234 1894, August 27, 28 Stat. 509, c. 349, 269
1906, June 29, 34 Stat. 596, c. 3592, 107 June 30, 34 Stat. 674, c 3913, 212
§ 5219,
United States Revised Statutes.
PAGE I
. 410 I § 5278,
PAGE
. 434
Constitution of the Commonwealth.
Dec. of Rights, art. 9, . . 499, 510
art. 30, . 191, 222, 510
Const., c. 1, § 1, art. 2, 414, 415, 554
§ 1, art. 4, 154, 285, 287,
300, 385, 410, .500, 549
c. 2, § 1, art. 7, . . 547
§ 1, art. 10, . . 548
Const., c. 2, § 1, art. 11, . 154, 227
§ 3, art. 1, 5, . . 227
§ 4, art. 2, . . 415
Const., c. 5, § 2, . . . . 385
Amend' ts Const., art, 3, 20, 31, . 499
art. 18, 75, 156
1793, c. 34, 1799, c. 87, 1804, c. 10, 1809, c. 108,
1821, c. 32, § 1,
1822, c. 92, § 16, 1826, c. 143, 1835, c. 144, §§ 2, 3, 1854, c. 286,
Statutes of the
PAGE
69 155
14 550 551 550
38 551 333
Common\\t:alth .
|
PAGE |
|
|
1854, c. 448, § 47, |
. 555 |
|
1857, c. 56, |
. 13 |
|
1860, c. 211, |
. 541 |
|
1863, c. 220, |
. 308 |
|
c. 220, §§ 1-8, |
. 309 |
|
1864, c.c. 48, 143, 211, . |
. 562 |
|
c. 223, |
. 310 |
|
1865, c. 283, § 8, . |
. 188 |
|
1866, c. 67, |
. 413 |
Vlll
STATUTES CITED.
Statutes of the Commonwealth — Con.
|
PAGE |
PAGE |
||
|
18(iG, c. 263, |
. 310 |
1888, c. 426, |
. 321,322 |
|
1S67, c. 75, |
. 275 |
1889, c. 45, |
. 311 |
|
ISOS, c. 153, § 1, |
. 446 |
1890, c. 307, |
. 324 |
|
ISno, c. 249, |
. 535 |
c. 320, |
. 594 |
|
1870. r. .370, § 10. |
446 |
c. 375, |
. 63 |
|
1S71, c. 167, |
. 86 |
c. 421, |
. 82 |
|
c. 378, |
. 310 |
1891, c. 308, |
. 203, 204 |
|
1872, c. 62, § 2, |
. 303 |
c. 350, |
. 63 |
|
c. 265, |
. 365 |
1893, c. 263, |
. 202 |
|
c. 364, |
. 161 |
c. 406, |
. 63 |
|
1873, c. 166, |
. 446 |
c. 407, §§ 4, |
6, . 15, 96, 97, |
|
c 262, |
. 445 |
99, 100, 102, 103, 167 |
|
|
c. 277, |
. 365 |
■ c. 413, § 1, |
. 149, 150 |
|
1874, c. 233, § 2, . |
. 445 |
1894, c. 53, |
. 240 |
|
c. 375, |
32,33 |
c. 143, |
. 310 |
|
c. 389, |
. 446 |
c. 288, §§ 1, |
3, . . . 167 |
|
1875, c. 49, § 2, . |
. 32 |
§3, |
96, 98, 99, |
|
c. 185, |
. 407 |
100, 101, 103 |
|
|
§§3, G, 17, |
. 407 |
c. 317, § 21, |
. 257 |
|
1876, c. 19, |
. 423 |
c. 341, |
. 324 |
|
1877, c. 195, § 1, . |
. 446 |
c. 481, § 24, |
. 322 |
|
c. 214, |
. 320 |
§ 44, |
. 324 |
|
c. 218, |
. 218 |
c. 497, |
. 306 |
|
§ 1, . |
. 218 |
§5, |
. 306 |
|
1878, c. 237, |
. 162 |
c. 498, § 20, |
. 445 |
|
1879, c. 236, |
. 413 |
c. 508, §§ 7, |
8, . . 63,64 |
|
c. 291, § 2, . |
. 446 |
c. 548, |
. 400 |
|
1882, c. 106, |
. 188 |
§ 8, , |
. 377 |
|
c. 139, |
. 446 |
§ 16, |
. 400 |
|
c. 266, § 2. . |
. 320 |
1895, c. 57, |
. 310 |
|
1883, c. 251, |
321,322 |
c. 148, § 34, |
. 190 |
|
c. 2.52, |
. 447 |
c. 449, §§ 14 |
20, . . 325 |
|
1884, c. 201, § 2, . |
. 448 |
1896, c. 178, |
. 183 |
|
c. 320, §§ 2, 14, . |
. 159 |
c. 397, § 9, |
. 571 |
|
§ 15, |
. 160 |
c. 465, § 2, |
. 96, 97, 99 |
|
1885, c. 21, |
. 13 |
1897, c. 121, § 3, |
15, 101 |
|
1SS6, c. 117, |
. 594 |
c. 266, |
. 447 |
|
c. 150, |
. 447 |
c. 395, |
. 325 |
|
1887, c. 96, |
. 463 |
§5, |
. 325 |
|
§§ 2, 6, . |
. 463 |
c. 500, § 10, |
. 397, 400, 401 |
|
§6, . |
. 465 |
§ 22, |
. 400 |
|
c. 177, |
. 327 |
1898, cc. 194, 399, |
.240 |
|
c. 270, |
. 45 |
c. 278, § 4, |
. 545 |
|
c. 392, |
. 572 |
c. 282, |
. 327 |
|
'^^^"250, |
. 204 |
c. 425, § 1, |
. 115 |
STATUTES CITED.
IX
Statutes of the Commonwealth — Con.
1898, 1899,
1900,
1902,
1903,
c. 425, § 2, .
c. 496, §§ 33, 36,
c. 229,
c. 344,
c. 388,
c. 192,
c. 197,
c. 340,
c 357,
c. 424,
cc. 426, 468,
c. 475, §§ 1, 2,
c. 116,
§3,
c. 213, § 1, c. 355, c. 163, § 3, c. 220, c. 237, c. 253, c. 281, § 6,
§14,
c. 355, c. 437,
187, 189, 281, 417, § 7, §40, §56, §58,
§§ 58-60, §72, §84,
§§ 5, 6,
1904,
c. 462,
c. 465,
§ 4.
c. 473, § 8^ c. 314, c. 348, c. 370, c. 409, § 4, c. 451,
c. 452, c. 453, c. 454,
3, 4, 361, 362,
PAGE
68,69 . 445 . 83 63, 64 . 150 . 90 . 75 . 15 . 63 . 240 . 239 . 113 . 210
212, 214 . 138 . 131 . 377 . 210 . 59 . 279 . 565 . 566 . 139
418, 420
195, 417 . 252 . 163 . 255
188, 189
249, 336 . 507 . 91 . 92 . 429 . 429 27, 79 . 168 . 187 . 52 . 129 . 364
360, 362 . 361
363, 364 . 361
1904, c. 455, §§ 1,
c. 458,
1905, c. 150,
c. 165,
c. 179,
c. 243, § 2,
- c. 267, § 1,
c. 280,
c. 330,
c. 339,
c. 347, § 25,
c. 366,
c. 381, § 1,
§3,
§6,
c. 435, § 1;
c. 464,
1906, c. 48.
c. 117,
c. 187,
c. 241,
c. 268, § 1,
cc. 276, 290,
c. 281,
§2,
c. 284, § 2,
c. 286,
c. 291, § 8,
§ 10,
c. 325,
c. 372,
c. 386,
§1,
c. 412,
§9,
0. 433, § 8,
c. 463 part
part
26, 27
PAGE
. 362 . 162 . 169 . 363 . 362 . 168 177, 178, 179 . 52 . 582 3, 4, 5, 363 . 320 , 28, 79, 80 . 537 . 536 . 34 . 151 . 124 . 218 59, 61 . 187 . 189 . 536 . 362 . 50 . 51 178, 179 195, 417 . 164 . 327 . 363 473, 475 . 180 . 216 . 79 27, 80 . 122 § 67, . . 240 § 47, 200, 204, 206 §§ 48-56, . 331
part III,
§51, §57, §65, §66, §103,
. 333
476, 478 . 184 184, 185 329, 330, 333, 334, 335
STATUTES CITED.
Statutes of the Commonwealth — Con.
190i>,
1907,
|
PAGE 1 |
PAGE |
|||||
|
(-.463, part 111, §§107-112, . 331 |
1907, c. 576, § 32, |
. 220 . 147 |
||||
|
§ 125, . |
. 144 |
§ 37, |
||||
|
§ 133, . |
. 143 |
§§ 60, 75, 9 |
3, . |
. 220 |
||
|
§144, . |
. 144 |
§ 91, |
220, 224 |
|||
|
§ 157, . |
. 513 |
c. 579, § 1, . |
. 338 |
|||
|
c. 479, |
. 75 |
c. 580, §§ 1, 2, |
116, 117 |
|||
|
c. 505, |
261, 315 |
c. 585, |
240, 287 |
|||
|
§5, . |
316, 317 |
§ 1, • |
. 282 |
|||
|
c. 517, |
. 61 |
c. 586, |
. 244 |
|||
|
§ 1, ■ |
. 62 |
1908, c. 194, |
. 244 |
|||
|
§§ 2, 3, . |
. 74 |
c. 199, |
. 218 |
|||
|
c. 521, § 1, . |
. 492 |
§ 3, . |
. 219 |
|||
|
c. 145, § 2, . |
. 362 |
c. 210, |
. 164 |
|||
|
c. 170, |
. 560 |
c. 248, |
. 220 |
|||
|
c. 222, § 1, . |
. 90 |
c. 323, |
. 363 |
|||
|
c. 253, |
. 362 |
c. 329, |
210, 214 |
|||
|
c. 259, § 1, . |
180, 216 |
§1, |
21 |
4, 215, 216 |
||
|
§§ 3, 4, 5, . |
. 180 |
§2, |
. 214 |
|||
|
§6, . |
181,217 |
§§ 5, |
7, . |
. 215 |
||
|
c. 261, |
. 447 |
c. 389, |
. 193 |
|||
|
c. 267, |
. 126 |
c. 404, |
. 243 |
|||
|
c. 269, |
. 93 |
§2, |
. 243 |
|||
|
c. 377, § 4, |
. 118 |
c. 454, |
42 |
7, 428, 528 |
||
|
c. 386, |
. 138 |
c. 484, § 3, |
. 206 |
|||
|
§1, . |
. 139 |
c. 520, § 1, |
454, 574 |
|||
|
§2, . |
. 141 |
§2, |
45 |
4, 455, 574 |
||
|
c. 402, § 1, . |
. 512 |
§§3, |
5, |
. 574 |
||
|
c. 458, § 1, . 1 |
19, 12 |
8, 142, 494 |
§8, |
. 259 |
||
|
c. 465, § 10, |
. 586 |
c. 572, |
. 315 |
|||
|
§17, |
. 585 |
§4, |
. 315 |
|||
|
c. 467, |
3C |
3, 304, 367 |
c. 590, |
. 185 |
||
|
§ 1, • 3 |
66,44 |
9, 450, 451 |
§ 16, |
. 250, 374 |
||
|
§ 112, |
. 367 |
§ 19, |
. 264 |
|||
|
c. 503, § 1, . |
. 320, 322 |
§44, |
454, 455 |
|||
|
c. .537, |
. 193 |
§ 46, |
. 410 |
|||
|
§3, . |
. 198 |
§ 68, |
. 339, 341 |
|||
|
§5, . |
192, 194 |
cl. 1, |
. 256 |
|||
|
c. 560, § 186, |
. 508 |
cl. sr, |
. 463, 465 |
|||
|
§ 306, |
. 458 |
cl. 3a, |
. 186 |
|||
|
§ 316, |
. 497, 502 |
c. 591, § 1, . |
. 536 |
|||
|
§ 317, |
. 498 |
c. 597, § 4, . |
. 348 |
|||
|
§371, |
. 337 |
§ 6, . |
. 349 |
|||
|
c. 576, |
. 172 |
c. 604, § 12, |
. 546,547 |
|||
|
§§1.3, |
. 223 |
§ 133, |
. 358 |
|||
|
§26, |
. 173 |
1 § 14( |
), |
. 344, 345 |
STATUTES CITED.
XI
Statutes of the Commonwealth — Con.
1908, c. 60i,
§ 142,
§§ 142-150,
c.
1909, c
c
c
c
c
615, 232, 263, 323, 342, 382, 419, 457, 486,
§1,
§3,
296, 297, 298,
§1,
§§1-14, .
§ 9, . 297, 298, 352,
§ 10, 297, 351, 355, 356,
§15,
c. 490, part I, § 4, . 300,
§ 5, cl. 3, .
§§ 15-18, 20,
45,
part III,
§85, .
§§ 21-23, §§ 40-43, § 41, cl. 3, §43, §70,
502, 504,
c. 514,
§7, §8,
§2,
§§ 14-23,
§18,
§24,
§44,
§§ 99, 100,
§17,
§42,
§47,
§48,
§56,
519, 524,
§1,
101,
339,
289, 102, .
567, 269,
281,
490 517 244 362 537 358 409 299 411 315 326 297 354 357 325 431 385
336 266 281 409 504 249 335 505 410 463 338 340 254 265 313 359 290 252 456 568 456 456 412 419 429 429
1909, c. 534,
§§ 2, 29, §22,
c. 539,
c. 540,
1910, c. 220,
c. 311,
— - c. 385,
c. 476,
c. 501,
c. 536,
c. 537,
c. 601,
c. 616,
1911, c. 82,
c. 119,
c. 297,
c. 311,
■ c. 449,
c. 484,
c. 494,
c. 534,
c. 562,
c. 566,
c. 597,
c. 614,
c. 679,
c. 736,
c. 751,
1912, c. 268,
c. 343,
c. 458,
c. 531,
c. 608,
c. 702,
346, 349, 350, §§ 1, 2, . §§ 3, 4, 5, 6, 7
§21, §1,
§1, §1,
§1, 403,
§1, §1,
329,
404, 405,
§11,
§§ 1, 2, 6, §§ 1, 2, §3,
§§ 1, 2,
§7, §6,
§§ 1, 2,
PAGE
. 318 . 318, 319
. 570 . 274, 275
. 317
405, 406, 442
. 347 .348
. 292, 293 . 293 . 417 . 394 391, 393, 395 . 363 331, 333, 335 . 362 . 472 . 579
. 342, 523
406, 442, 443
. 415 . 575, 577 . 460 . 551 . 456 . 568 420, 421, 567 575, 576, 577 . 524 . 452 . 459 . 514 . 498 . 467 . 468 . 569 . 551 578, 580, 581 . 579 . 581 . 585 . 576 . 561 . 561
Xll
STATUTES CITED.
|
Resolves. |
|||
|
PAOE |
PAGE |
||
|
1SS4, c, 50, |
. 310 |
1907, cc. 12, 105, . |
. 218 |
|
1902, cc. 11, 57, . |
. 506 |
cc. 19, 36, . |
. 506 |
|
1903, cc. 36, 77, 83, |
. 506 |
c. 104, |
. 152 |
|
1904, cc. 49, 78, . |
. 506 |
1908, cc. 49, 52, 55, |
. 506 |
|
1905, cc. 50, 77, . |
. 218 |
c. 86, |
. 596 |
|
c. 55, |
. 506 |
1909, c. 137, |
. 506 |
|
1906, cc. 48, 53, . |
. 218 |
1910, c. 102, |
. 506 |
|
c. 61, . |
. 506 |
169S, c. 20,
Province Laws.
PAGE
489, 516
Revised Statutes.
c. 7, §4, c. 12, § 73,
c. 11, §4, c. 13, § 62, 0.32, .
|
. 300 |
c. 12, §§ 67-73, |
|
. 549 |
c. 119, § 12, |
|
General |
Statutes. |
|
PAGE |
|
|
. 300 |
C.58, §§32,65, |
|
. 551 |
c. 68, §41, |
|
13,32 |
c. 71, §49, |
FAGB
551 275
PAGB . 41
311
58
Public Statutes.
c. 11, §4, . c. 12, §§ 14, 10, c. 13, §§ 39, 40, §43, .
•i, § 21, 5§23, §30,
6, § 15, § 19, §28, §51, §58, §74,
30,
|
PAGE |
||
|
25,300 |
c. 20, |
§5, . |
|
. 25 |
c. 83, |
§1, . |
|
. 25 |
c. 100, |
§9, . |
|
. 188 |
c. 104, |
§20, |
|
Revised Laws. |
||
|
PAGE |
||
|
. 118 |
0. 7, |
§§, 1. 9, |
|
. 469 |
§6, . |
|
|
. 470 |
§7, . |
|
|
. 228 |
c. 8, |
§1, . |
|
. 229 |
§4, . |
|
|
. 227 |
§5, . |
|
|
. 444 |
§ 5, cl. 9, |
|
|
28, 142 |
c. 9, |
§1, . |
|
. 104 |
§7, . |
PAGE
. 310 . 115
7,8 . 320
. 30
. 588 201, 472 . 250 . 95 34,35 . 468 . 553 . 310
STATUTES CITED.
Xlll
Revised Laws — Con.
c. 12,
c. 14,
c. 19,
?3, . J4, . \5, . \ 5, cl. 3, \ 5, cl. 7, !§ 58, 68, j24, 128, i50, 151, 165, \5, .
— §9,
c. 20,
c. 21,
c. 22,
c. 23,
c. 25,
c. 26,
c. 27,
325 516, 120, !23,
j§ 25, 26, 28, 32, U9, }27, !§ 8, 12, J12, !l7, \22, \ 7, . \8, . il4, }62,
!§ 87, 88-93, !§ 2, 8, J28, 136,
!§ 5, 8, 10, J6, .
PAGE
. 34
25, 300, 432
66
247
156
36
19
20
255
188, 189
. 244
354, 355
271,326,355
. 326
130, 159, 160, 191,
326, 327, 355, 369, 577
106, 461
c. 31,
c. 32,
c. 35,
c. 42,
jll, J18, 5 21, J2, . j73, \5, . \17, j§ 27, 28,
. 169 159, 169 . 159 . 447 10, 11 . 559 . 560 . 559 . 290 . 182 . 447 488, 489, 516 . 447 . 326 . 326 . 382 . 594
422, 423 328, 342 565, 566
71 72
423, 566 101 279
122, 136, 355, 356, 357 136 37
c. 42, §§ 34, 35, 37, c. 47,
§§7,8, .
§11,
§ 13,
§21,
c. 51, § 18, c. 56, § 1, .
§§70,73, .
§§70-76, .
c. 62, § 8, . c. 73, § 207, c. 75, § 8, .
§ 19,
§§42, 43, 44, 45,
§65,
- §§75-85, .
§99,
§ 100-108,
§ 101,
§§ 103, 104,
§109,
- §§ 112, 113,
§113,304,365,366,
c. 76, § 17,
- §23,
§24,
c. 80, § 1, .
§6, .
c. 81, § 17,
§21,
c. 85, § 16,
§20,
c. 86, § 1, . c. 87, §§ 9, 37,
§78,
§79,
§120,
c. 89, § 10, c. 90,
§4, .
§6, .
§7, . . 210,
§§12, 13, 14, 16,
§§ 12-34, .
60
PAGE
38
59 113 242 175
60 175 427 209 211
51 343 81,82 217 197 196 540 209 211 209 210
303
449, 450, 451
72
92
447
. 68, 114
68, 85, 207
. 58
138, 139, 141
. 146
57, 58
. , .453
. 134
. 58, 133
. 133
. 57
. 310
. 210
. 208, 211
. 208
211, 212, 213
. 211
. 211
XIV
STATUTES CITED.
|
Revised Laws — Con. |
||
|
PAGE 1 |
||
|
c. 90, §2.8, |
. 212 |
c. 118, § 25, |
|
r. 91, § IK), |
• ^^ |
§29, |
|
§118, |
. 19 |
§68, |
|
c. 92, § 11, |
. 189 |
§§87,89, |
|
c. 96, §8, . |
. 17 |
§96, |
|
c. 100, § 13, |
391,393,395 1 |
c. 122, § 2, . |
|
§§ 14, 15, . |
. 393 |
c. 125, § 2, . |
|
§17, |
9, 393 |
§8, . |
|
§ IS, |
7, 8, 392, 461 |
§12, |
|
c. 102, §§ 1, 2, |
. 278 |
c. 126, |
|
§§ 78, 79, 80, |
. 524 |
c. 134, § 11, |
|
§§78,79, . |
. 525 |
c. 138, §§ 17, 18, |
|
c. 104, § 41, |
. 192 |
c. 145, § 41, |
|
§ 22, |
. 231 |
c. 151, §§ 16, 23, |
|
§25, |
. 322 |
§25, |
|
§ 33, |
. 324 |
c. 153, § 2, . |
|
§§33,34, . |
. 323 |
c. 157, §§ 16, 17, |
|
§49, |
. 320 |
c. 158, § 8, . |
|
c. 106, § 19, 21, . |
. 64 |
c. 164, § 17, |
|
§20, |
64, 567, 568 |
c. 165, § 4, . |
|
§28, |
. 177, 178 |
§31, |
|
§ 32, |
. 178, 179 |
§37, |
|
§§41-45, . |
. 192 |
§52, |
|
c. 108, § 1, . |
. 447,493 |
c. 175, § 7, . |
|
§7, . |
. 520 |
c. 195, § 116, |
|
c. Ill, §77, |
. 55 |
c. 204, §§ 2, 21, |
|
c. 112, §72, |
75, 77 |
§§21,47, |
|
c. 113, § 26, |
43, 46, 183 |
c. 208, § 7, . |
|
§26, d. 1, |
. 258 |
c. 211, § 1, . ' |
|
§ 26, cl. 3, h. |
. 185 |
c. 212, §§ 36, 47, |
|
§ 55, |
. 135 |
c. 214, |
|
c. 114, §§ 1, 11, . |
. 373 |
c. 217, § 14, |
|
c. 116, §34, |
. 69 |
C.222, §1, . |
|
c. lis, § 11. |
83, 84 |
Ill,
)7-62,
PAGE
. 171
40, 42 47,49 . 47 . 123 . 59 12, 13 13, 14, 32 . 32
255, 256 . 535 . 134 . 254 . 467 . 468
120, 260 . 560 . 560 . 447 . 447 . 107 107, 108, 292 . 186 . 444
540, 541 . 444 . 293 . 535
489, 516 . 102
583, 584 . 440 . 447
1874, § 154,
Laws of Minnesota.
PAGE I
. 237 I 1881, § 109,
PAGE
. 237
1809, c. 359.
General Laws of Minnesota.
PAGE
. 237
STATUTES CITED.
XV
1889, c. 5, c. 146,
§10,
Laws of New Hampshire.
|
PAGE |
PAGE |
|
|
. 202 |
1893, c. 100, |
. 202 |
|
. 203 |
1895, c. 27, §§ 22, 23, . |
. 202 |
|
. 202 |
1903, c. 102, |
. 202 |
1901, c. 118, § 1,
Laws of New York.
PAGE I
. 20 I 1905, c. 94,
PAGE
. 20
XVI
CASES CITED.
Table of Cases cited in this Volume.
Abbott V. Frost, 185 Mass. 398, 26, 336 Adams Express Cases, 165 U. S.
194; 165 U. S. 255; 166 U. S.
171; 166 U. S. 185, . . 245
V. Goodrich, 55 Ga. 233, 234, 421
t'. Ipswich, 116 Mass. 570, . 58
Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211, . 234
.^tna Life Ins. Co. v. Hardison,
199 Mass. 181, . . . .220 Agawam National Bank v. South
Hadley, 12S Mass. 503, . . 328 AUgeyer v. Louisiana, 165 U. S.
578, 590, 225
American Circular Loom Co. v.
Wilson, 198 Mass. 182, 206, . 313 American Glue Co. v. Common- wealth, 195 Mass. 528, . 246 Amherst Academy v. Cowls, 6 Pick
427,433, 311
Anderson v. Assurance Co., 59
Minn. 182, .221
V. United States, 171 U. S. 604, 234
Andrews v. Berkshire Power Co.,
145 Fed. 47, 147 Fed. 76, 203,
U. S. 596, . .598
Appleyard v. Massachusetts, 203
U. S. 222, .... 437
Arnold V. Yanders, 56 Ohio 417, . 496 Athol Music Hall Co. v. Carey, 116
Mass. 471, .... 121
Atlantic Coast Line R.R. Co. v.
North Carolina Corporation
Commission, 206 U. S. 1, 24, 25, 389 Attorney-General v. Douglass, 195
Mass. 35, 38, . .327
■ v. Drohan, 169 Mass. 534, 159, 445
r. Jamaica Pond Aqueduct Co.,
133 Mass. 361, . . 274, 275
Attorney-General v. X. Y., N. H.
& H. R.R. Co., 198 Mass. 413,
185, 205, 476, 478
201 Mass. 370, . 474, 483
V. Old Colony R.R., 160 Mass.
62,90, 545
V. Pitcher, 183 Mass. 513, 516, 373
V. Revere Copper Co., 152
Mass. 444, . . .275
V. TiUinghast, 203 Mass. 539, . 327
V. Trehy, 178 Mass. 186, . 192
1;. Ware River R.R. Co., 115
Mass. 400, . .11
V. Williams, 174 Mass. 476, . 381
Atwood V. Dumas, 149 Mass. 167,
169, 373
Avery v. Tyringham, 3 Mass. 160, . 551 Baker v. Boston Elevated Ry. Co.,
183 Mass. 178, . . . .377 Baltimore City v. Starr Church,
106 Md. 281, . . . .387 Barbier v. ConnoUy, 113 U. S. 27, . 277 Batchelder v. Salehi, 4 Cush. 599, . 38 Behnont v. New England Brick Co.,
190 Mass. 442, . . .197
Bemis v. Leonard, 118 Mass. 502, . 468 Bennett v. WeUesley, 189 Mass. 308, 114 Bent V. Emery, 173 Mass. 495, . 545 Bigelow V. Caliamet & Hecla Mining
Co., 167 Fed. 721, . . . 234 Billings V. Worcester, 102 ^Nlass. 329, 177 Binney v. Globe National Bank,
150 Mass. 574, . . . .261
Blanchard v. Stearns, 5 Met. 298,
301, 500
Blood V. Nashua & Lowell R.R.,
2 Gray 137, . .16
Bloom V. Richards, 2 Oh. St. 387,
401, . • . . . .421
CASES CITED.
XVll
Boston Electric Light Co. v. Boston
Terminal Co., 184 Mass. 566, 570, 379 Boston V. Union Freight R.R. Co.,
181 Mass. 205, . . . .144 Bowditch V. New England Life Ins.
Co., 141 Mass. 292, . . .172 Bowen v. Matheson, 14 Allen 499, 528 Boyden v. Massachusetts Masonic
Life .Assn., 167 :Mass. 242, . . 220
Boylston v. Princeton, 13 Mass. 381, 69 Braily v. Southboro, 6 Cush. 141, . 176 Brewer Brick Co. v. Brewer, 62 Me.
62, 388
Brickett v. HaverhiU Aqueduct Co.,
142 Mass. 394, . . . .598
Brodbine v. Revere, 182 Mass. 598,
600, 602, 603, . 15, 89, 388, 425, 510 Brooks V. Fitchburg & Leominster
Ry. Co., 200 Mass. 8, 17, . . 298 V. West Springfield, 193 Mass.
190, 432
Brown v. LoweU, 8 Met. 172, . 298, 594
V. RusseU, 166 Mass. 14, 25, 26,
159, 307, 327 Cambridge v. Trelegan, 181 Mass.
565, . . . . .87
Capen v. Foster, 12 Pick. 485, 488,
500, 501, 510 Case of Super'S'isors of Elections,
114 Mass. 247, . . . .222
Caverly-Gould Co. v. Springfield,
83 Vt. 396, 403, . . .388
Chalfont v. State, 37 Ohio St. 60, . 312 Chamberlain v. Stearns, 111 Mass.
267, .... 13, 31
Charlestown v. Gardner et al, 98
Mass. 587, . . . .38
Cheney v. Barker, 198 Mass. 356,
362, .... 376,378
City Xational Bank v. Charles
Baker Co., 180 Mass. 40, . . 144
Cleveland, etc., Ry. Co. v. Illinois,
177 U. S. 514, . . .239
Codman v. Crocker, 203 Mass. 146,
152, 153, 408
Coe V. Columbus, etc., R.R. Co.,
10 Oiiio 372, . . . .332
Cohn V. Parker, 41 La. Annual 894, 127 Cole V. Tucker, 164 Mass. 486, 500, 510 Commonwealth v. Alger, 7 Cush.
53, 98, 102, 16, 277, 501, 502, 528 V. Bearse, 132 Mass. 542, 546,
549, . 277, 501, 502, 528 V. Berkshire Life Ins. Co., 98
Mass. 25, 286
V. Boston Advertising Co., 188
Mass. 348, 351, . . .382 V. Danziger, 176 Mass. 290,
291, 501
V. Da\'is, 162 Mass. 510, 511, . 408
V. Everson, 140 Mass. 292, . 9
V. Gorham, 99 Mass. 420, . 572
V. Hamilton Manufacturing
Co., 12 Allen 298, . . 249, 285
V. Hunt, 4 Met. Ill, 134, . 528
V. Interstate ConsoUdated St.
Ry. Co., 187 Mass. 436, . . 396
V. Kiley, 150 :Mass. 325, . 572
V. KimbaU, 105 Mass. 465, 467,
360, 565 V. Lancaster Savings Bank, 123
Mass. 493, . . . .144
V. Lockwood, 109 Mass. 323, . 572
V. Morrison, 197 Mass. 199,
203, 205, .... 378, 384 V. New England Slate & Tile
Co., 13 Allen 391, . . .249 V. People's Five Cent Savings
Bank, 5 .AJlen, 428, 437, . 287, 386
V. Rogers, 135 Mass. 536, . 8, 9
V. Rogers, 181 Mass. 184, 186,
500, 501
V. Sisson, 189 Mass. 247, . 510
V. Smith, 10 -\llen, 448, . 1S6, 333
V. Tobin, 108 Mass. 426, 429,
101, 103
V. Vincent, 108 Mass. 441, . 16
V. Waterborough, 5 Mass. 257, 155
V. Wilkins, 121 Mass. 356, . 39
Connecticut Insm-ance Co. v. Com- monwealth, 133 Mass. 161, 166, . 22,
285, 286 Conner v. Shepherd, 15 Mass. 164, 532
XVlll
CASES CITED.
PAGE
( ■ '.-ACS V. Burt, 22 Pick. 422, . 540 < .ij.'land r. Springfield, 166 Mass.
49J>, 298
Coster r. Tide Water Co., 3 C. E.
Green, 54, 518, . - 541
Coughlan r. Cambridge, 166 Mass.
268, .45, 465
Covington & Lexington Turnpike
Co. r. Sandford, 164 U. S. 578,
597, 598, .... Crocker r. Old Colony R.R. Co., 137
Mass. 417, ....
Crowell r. Cape Cod Ship Canal
Co., 168 Mass. 157, . Cunningham r. Mahan, 112 Mass.
58, 59, . Daly r. National Life Ins. Co., 64
Ind. 1,
Davics r. McKeeby, 5 Xev. 369, Davis' Case, 122 Mass. 324, . Day V. Hurlburt, 11 Met. 321,
r. LawTence, 167 Mass. 371,
Delaware, Lackawanna & Western
R.R. Co. V. Pennsylvania, 198
U.S. 341, Detroit r. Detroit Citizens St. Ry.
Co., 184 U. S. 368, 398, . 398, 402 Dobbins v. Commissioners of Erie
County, 16 Pet. 435, . 299
Donnell r. Starlight, 103 Mass. 227, 10 Donworth v. Sawyer, 94 Me. 242, 535 Dow r. Boidelman, 125 U. S. 680, . 396 Dowling r. Insurance Co., 92 Wis. 73, 221 Drake v. Curtis, 1 Cush. 395, . 16
r. Wells, 11 .\llen, 141, . . 535
Earle r. Commonwealth, 180 Mass.
5"9, 506
East Boston Co. v. Commonwealth,
203 Mass. 68, . .274
Ela r. Smith, 5 Gray, 121, . 489, 518 Emerson r. Trustees of Milton Acad- emy, 185 Mass. 414, 415, . . 248 Ev.inKflical Baptist Society i-. Bos- ton, 102 Mass. 412, . .387 Ez parte Quarg, 149 Cal. 79, 491, 492 Fargo r. Hart, 193 U. S. 490, 245, 246 Farwoll r. Boston, 192 Mass. 15, 19, 555
398
105
11
468
163 503 440 540 385
246
PAGE
Fay i: Harlan, 128 Mass. 244, . 572 Fenno v. Gay, 146 Mass. 118, . 342
Field V. Clark, 143 U. S. 649, . . 416
Firemans Fire Ins. Co. v. Common- wealth, 137 Mass. SO, . 25 Fletcher v. Livingston, 153 Mass.
388, 535
Flint V. Stone Tracy Co., 220 U. S.
107, 416
Frothingham r. Shaw, 175 Mass. 59, 301 Gage V. TirreU, 9 -\Ilen, 299, 307, . 41 Galveston, Harrisbxirg, etc., Railroad
V. Texas, 210 U. S. 217, 226, 245, 246 Gamble v. Queens County Water
Co., 123 X. Y. 91, . . . 332 Gardner v. The Collector, 6 Wall.
499, 511, 554
Georgia Railroad & Banking Co. v.
Smith, 128 U. S. 174, . . 396
Georgia r. Tennessee Copper Co., 206
U. S. 230, 237, . . . 599, 603 Gibbons v. United States, 8 Wall.
274, 151
Grace v. Board of Health of Xewton,
135 Mass. 490, . . .540
Graham v. Roberts, 200 ^lass. 152, 425 Grand Lodge v. Xew Orleans, 166
U. S. 143, 149, .... 387 Green v. Shumway, 39 X. Y. 418, . 503 Griffith r. Berkshire Power Co., 158
Fed. 219, .... 598
Haberhl f. Boston, 190 Mass. 358, . 384 Hamilton Mfg. Co. v. Lowell, 185
Mass. 114, .36
Hamhn r. Xew Bedford, 143 Mass.
192, 545
Hannum v. Tourtellott, 10 -\llen
494, 468
Hanscom v. Lowell, 165 Mass. 419,
77, 381 Hardy v. Waltham, 7 Pick. 108, . 387 Harpending v. Haight, .39 Cal. 189,
556, 558 Hartwell v. Littleton, 13 Pick. 229, 39 Harvard College v. Cambridge, 175
Mass. 145, .... 248 V. Kettell, 16 Mass. 204, . 387
CASES CITED.
XIX
Harwood v. North Brookfield, 130
Mass. 561, . . . .266
Haskell v. Ayers, 35 Mich. 89, . 535 Hatch V. Reardon, 204 U. S. 152,
IGO, 399
Haverhill r. Marlborough, 187
jMass. 150, . . . .139
Hayes v. Hall, 188 Mass. 510, 511, 313 Head v. Amoskeag Mfg. Co., 113
U. S. 9, 540
Henry v. Thomas, 119 ^Nlass. 583,
584, 540 :
Hewins v. London Assurance Cor- |
poration, 184 Mass. 177, . 220 j
Higginson t'. Xahant, 11 Allen 530, 381 ' Hoknan v. Townsend, 13 Met. 297, 176 I Holt V. City CouncU of SomervUle, i
127 Mass. 408, . . . .408
Home Insurance Co. v. New York,
134 U. S. 594, . . . .249
Hopkins v. United States, 171 U. S. {
578, 234 '
Horton v. Ipswich, 12 Cush. 488, . 176 Howe V. Morse, 174 Mass. 491, . 172 Howes V. Perry, 92 Ky. 260, . . 458
Hubbard v. Taunton, 140 ]Mass.
467, .... 381,382
Hudson Real Estate Co. v. Tower,
156 Mass. 82, . . . 121
Hughes V. Berkshire Power Co.,
158 Fed. 219, . . . .598 Hutch ins v. State Bank, 12 Met.
421, 104
Interstate Ry. Co. v. Massachusetts,
207 U. S. 79, 85, 86, 87, . 389, 390, 396, 398, 399, 402 Jaquith v. Wellesley, 171 Mass. 138,
143, 501
Jenkins v. Andover, 103 Mass. 94, 76,
156, 157 Kansas v. Colorado, 185 U. S. 125, 600 Kentuck}' v. Dennison, 24 How. 66,
433, 438 Ivilty t'. Railroad Commissioners,
184 Mass. 310, . .513
King V. Concordia Fire Ins. Co., 140
Mich. 258, 268, . . .221
Kingman et al. petitioners, 153
Mass. 566, . . 161, 305, 505
Kingman v. Brockton, 153 Mass.
2.55, . . . 156,381,486
Kinneen v. Wells, 144 Mass. 497,
499, 499,500,503,510
Knight V. Boston, 159 Mass. 551, . 24 Lake Shore & jSIichigan Southern
Ry. Co. V. Smith, 173 U. S. 684,
698, 699, .... 389, 390 Layden t'. Knights of Pythias, 128
N. C. 546, . . .164
Leather Manufacturers National
Bank t'. Treat, 128 Fed. Rep. 262, 70 Leavitt v. Cambridge, 120 Mass.
157, . . . . .35
V. Leavitt, 135 Mass. 191, 193, 327
Lentell f. Boston & Worcester St.
Ry. Co., 202 Mass. 115, 119, . 377 Little V. Rogers, 1 Met. 108, . . 343
Loan Association v. Topeka, 20
WaU. 655, 522
Loewe i-. Lawlor, 208 U. S. 274, . 234 Louisville & Nashville R.R. Co. v.
Kentucky, 161 U. S. 677, . 238, 239 V. Kentucky, 183 U. S. 503,
519, 239
LoweU V. Boston, 111 Mass. 454, . 154,
161, 162, 305, 486, 487, 505, 522, 540, 542
V. OMver, 8 AUen, 247, 253, 161,
305, 380, 486 Lumbard v. Stearns, 4 Cush. 60, . 109 Lyons v. Woods, 153 U. S. 649, 663, 554 Mahoney v. Boston, 171 IVIass. 427, 164
V. Fitzpatrick, 133 ]Mass. 151, 523
Maine v. Grand Trunk Ry. Co., 142
U. S. 217, . . .246
Major V. Hohnes, 124 Mass. 108, 120, 261 Malcohn v. Boston, 173 Mass. 312, 168 Manufacturers Ins. Co. v. Loud, 99
Mass. 146, . . .249
Manville Co. v. Worcester, 138
:Mass. 89, 600
MarteU v. VThite, 185 Mass. 255,
260, .... 528,529
Massachusetts Agricultural College
V. Marden, 156 Mass. 150, 156, . 311
XX
CASES CITED.
Massachusetts Society for Preven- tion of Cruelty, etc. i'. Boston,
142, Mass. 24, . .13
Massachusetts Western Union Tele-
praph Co., 141 U. S. 40, . . 245
McAuley v. Boston, 113 Mass. 503, 176 McDonald v. Union Freight Railroad
Co., 190 Mass. 123, . .144
McGowan v. Boston, 170 Mass, 384, 176 McNichols V. Pease, 207 U. S. 100, 435 Mead v. Acton, 139 Mass. 341, 344,
1.00, 161, 305, 486, 487 Meands v. Park, 95 Me. 527, . 421 Melcher v. Boston, 9 Met. 73, . 301 Merrick v. Amherst, 12 Allen, 500,
76, 77, 157, 382, 388 MetropoUtan Life Ins. Co. v.
Commonwealth, 198 Mass. 466, 285 Miller v. Fitchburg, 180 Mass. 32,
37, 543
Minneapolis v. Minneapolis St. Ry.
Co., 215 U. S. 417, 434, . 398, 402 Minneapolis & St. Louis R.R. Co. v.
Minnesota, 186 U. S. 257, . . 396
Minot V. \\inthrop, 162 Mass. 113,
124, .... 285,386
Missouri v. Illinois, 200 U. S. 496,
521, . 599,600,602
Missouri Pacific Railway v. Larrabee
Mills, 211 U. S. 612, 621, . . 239
Monies v. Lynn, 121 Mass. 442, . 175 Monongahela Navigation Co. v.
United States, 148 U. S. 312, .545 Montague & Co. v. Lowry, 193
U. S. 38, 234
Morris v. Callanan, 105 Mass. 129, 533 Moses V. LawTence County Bank,
149 U. S. 298, 302, . .343
Mt. Hermon Boys School v. Gill,
145 Mass. 139, . .13, 248
Mt. Hope Cemetery v. Boston, 158
Mas.s. .509, 511, .408
MuUiall V. Fallon, 176 Mass. 266,
267, 601
Munklcy v. Iloyt, 179 Mass. 108, 73, 571 NoLson V. State Board of Health, 186
•Mass. 330, .... 304
545
376
13,31 108
59S, 599 La.
. 127
Newburj'port Water Co. v. Xew- buryport, 85 Fed. Rep. 723, .
New England Telephone & Tele- graph Co. V. Boston Terminal Co., 182 Mass. 397, 399, .
New England Theosophical Society V. Boston, 172 Mass. 60, .
New Hampshire v. Louisiana, U. S. 76, .
New Orleans v. Arthurs, 36 Ann. 98, .
New York Life Ins. Co. v. Hardison, 199 Mass. 190, . . . 220, 221
Nimbus (The), 137 Mass. 360, . 11
Northampton v. County Commis- sioners, 145 Mass. 108, . 295,387
Northern Securities Co. v. United States, 193 U. S. 197, . . 234
Northside Railway Co. v. Worthing- ton, 88 Tex. 562,
Noyes v. Hale, 137 Mass. 266,
O'Hanlan v. Denvir, 81 Cal. 60,
O'Keefe v. Somerville, 190 Mass 110,
Old Dominion Copper Co. v. Bigelow, 188 Mass. 315, 321, 329, 313
203 Mass. 159, 177, 178, . 313
OUver V. Gale, 182 Mass. 39, . 197
V. Washington Mills, 11 Allen,
268, 275, .... 286, 295
O'Neil V. Insurance Co., 166 Pa. St. 77,
Opinion of the Justices, 13 Allen, 594, . .• .
5 Met. 591, 592, .
99 Mass. 636,
107 Mass. 604,
115 Mass. 602,
117 Mass. 603,
135 Mass. 594,
136 Mass. 578,
150 Mass. 586, 591, 592, 109, 446
155 Mass. 598, 601, 109, 486, 540
160 Mass. 586, 590, 88, 388, 425
165 Mass. 599, . . .446
166 Mass. 589, . . 159, 307
175 Mass. 602, . . .152
332 266 535
528
221
228 500 555 446 446 549 555 446
CASES CITED.
XXI
Opinion of the Justices, 182 Mass.
605,607, . . . 110,540,546
186 Mass. 603, 605, . 161, 162,
486, 505
190 Mass. 611, 613, 161, 486, 505
195 Mass. 607, 608-9, 614, 287,
294, 300, 302, 386, 41]
204 Mass. 607, 611, . .380
208 Mass. 610, . . . 442
209 Mass. 607, . . .569
45 N. H. 607, 610, . . 558
66 N. H. 629, . . .545
Owensboro National Bank v. Owens-
boro, 173 U. S. 664, 669, 410, 411 Paine v. Woods, 108 Mass. 160, . 274 Parker v. Barnard, 135 Mass. 116, 101
V. Kane, 4 AUen, 346, . .261
V. Nickerson, 112 Mass. 195,
196, 313
V. Nickerson, 137 Mass. 487,
497, 313
Pearsall v. Great Northern Ry. Co.,
161 U. S. 647, . . . .239 People V. Hawkins, 157 N. Y. Rep. 1, 496 V. Horn Silver Mining Co.,
105 N. Y. 76, . . . . 256
V. Steele, 231 111. 340, . .491
Perry v. Bangs, 161 Mass. 35, 36, . 322 Peterson v. Chicago, Rock Island &
Pacific Ry. Co., 205 U. S. 364,
391, 418
PhiUips Academy v. Andover, 175
Mass. 118, . . . . 387
PhiUips V. Boston, 150 Mass. 491, . 167 Phoenix Ins. Co. v. Perkins, 19 So.
Dak. 59, 221
Pierce v. Creecy, 210 U. S. 387, . 437 Pittsburg, etc., Ry. Co. v. Backus,
154 U. S. 421, 428, . . .247
Plant V. Woods, 176 Mass. 492, 501, 528 Pollock V. Farmers Loan & Trust
Co., 157 U. S. 429, . . 300, 301
158 U. S. 601, . 300, 301
Portland Bank v. Apthorp, 12 Mass.
252, .... 28.5,286
Proprietors "of Mills v. Common- wealth, 164 Mass. 227, . .17
Provident Savings, etc., Society v.
Cutting, 181 Mass. 261, . . 220
Pullman Car Co. v. Missouri Pacific
Co., 115 U. S. 587, . . .418 Purinton v. Jararock, 195 Mass. 187, 124 Quatsoe v. Eggleston, 42 Ore. 315, 585 Quinn v. Fire Association, 180 Mass.
560, 220
Raih-oad Co. v. Maryland, 21 Wall.
456, 239
Raymond v. Lowell, 6 Cush. 524, 176 Rice V. Bradford, 180 Mass. 545, . 387 Richards v. Barlow, 140 Mass. 218, 523 Richmond Iron Works v. Wadhams,
142 Mass. 569, . . . .532
Rison V. Farr, 24 Ark. 161, . . 503
Roberts v. Reilly, 116 U. S. 80, 97, 437 Robinson's Case, 131 Mass. 376, . 445 Rockport V. Webster, 174 Mass. 385, 450 Round V. Police Commissioner, 197
Mass. 218, . . . . 356
Rutland v. Brister, 53 Miss. 683, . 106 Savannah & C. R. Co. v. Callahan,
49 Ga. 506, 511, . . .421
Sawyer v. State Board of Health,
125 Mass. 182, 192, . . .87
Sears v. Crocker, 184 Mass. 586, 588,
376, 377 Shattuck V. Gragg, 23 Pick. 88, . 534 Shawnee Compress Co. v. Anderson,
209 U. S. 423, . . . 234, 237
Sherman v. Tobey, 3 AUen, 7, . 540 Shiffer v. Broadhead, 126 Penn. St.
260, 535
Silver v. Ladd, 7 WaU. 219, . . 95 Slater v. Jepherson, 6 Cush. 129, . 533 Smith V Dedham, 8 Cush 522, . 176
V. Dedham, 144 Mass. 177, . 328
Smyth V. Ames, 169 U. S. 466, . 396 V. Ames, 171 U. S. 361, 365, . 397
V. PhiUips Academy, 154
Mass. 551, . . .590
Soon Hing v. Crowley, 113 U. S. 703, 277 Southboro v. Marlboro, 24 Pick. 166, 115 Sprague v. Dorr, 185 Mass. 10, . 304
V. Minon, 195 Mass. 581,
304, 450
xxu
CASES CITED.
144 541
530 529 458
458
Springfield v. Springfield St. Ry.
1S2 Mass. 41, . State V. Bhikc, 7 Vroom 447, . V. Central Lumber Co., 24 So
Dak. 136,
y. Drayton, 82 Nebr. 254,
V. Speidel, 62 Ohio St. 156,
V. Walsh, 7 Mo. App. 142,
Stone i;. Charlestown, 114 Mass. 214, 388 V. Farmers Loan & Trust Co.,
116 U. S. 307, 325, 331, . 389, 397
t'. Heath, 179 Mass. 385, 88, 197
V. Hubbardston, 100 Mass. 49, 176
Stover V. Hamilton, 21 Gratt (Va.)
273, 342
Strout V. Harper, 72 Me. 270, . 534 Stults V. Silva, 119 Mass. 137, . 523 Sullivan v. Boston, 198 Mass. 119, 336 Swift & Co. V. United States, 196
U. S. 375, .234
Taft V. Adams, 3 Gray, 126, . . 549 Talbot V. Hudson, 16 Gray, 417,
540, 541, 543 Taunton r. Warcham, 153 Mass. 192, 115 Teasdale v. Newell, etc.. Construc- tion Co., 192 Mass. 440, . . 266 Third National Bank of Louisville
V. Stone, 174 U. S. 432, . 410
United Hebrew Association v.
Benshimol, 130 Mass. 325, . 28, 32 United States v. Allen, 36 Fed. 174, 554 V. American Tobacco Co., 164
Fed. 700, .... 234, 237
V. E. C. Knight Co., 156 U. S. 1, 234
V. Joint Traffic Association,
171 U. S. 505, . . . 234, 235
V. Martin, 94 U. S. 400, . 62
V. Realty Co., 163 U. S. 427,
440 506
V. Trans Missouri Freight
Assn., 166 U. S. 290, . .234
V'cgelahn v. Gunter, 167 Mass. 92, 528 Vose i;. Deane, 7 Mass. 280, . . 167
Wabash, St. Louis & Pacific R.R.
Co. V. Illinois, 118 U. S. 557, . 396
PAGE
Wales V. Belcher, 3 Pick. 508, . 549 Walker v. Cronin, 107 Mass. 555, 529 Wall V. Piatt, 169 Mass. 398, . 465
W' ashington National Bank v.
WilUams, 188 Mass. 103, . .171
Waterman v. Johnson, 13 Pick. 261, 274 Way V. Smith, 111 Mass. 523, . 523 Webb V. To^Tisend, 1 Pick. 21, . 532 Weld V. Gas & Electric Light Com- missioners, 197 Mass. 556, 558, . 419 Wesleyan Academy v. Wilbraham,
99 Mass. 599, 604, . . 13, 248
Western Union Telegraph Co. v.
Massachusetts, 125 U. S. 530, . 245 Weston V. City Council of Charles- town, 2 Peters, 449, . . .300 West Roxbvu-y v. Stoddard, 7 Allen,
274, 274
White V. Creamer, 175 Mass. 567, . 73
V. Cutler, 17 Pick. 248, . 532, 533
V. Foster, 102 Mass. 375, . 535
V. WUUs, 7 Pick. 143, . . 532
Wilcox V. County Commissioners,
103 Mass. 544, . . . .301 Williams v. Johnson, 208 Mass. 544, 505
V. Lawrence, 113 Mass. 506, . 176
V. Parker, 188 U. S. 491, . 381
V. Whiting, 11 Mass. 424, . 500
Wilson V. State, 17 Tex. App. 393, . 535 Wisconsin & Michigan R.R. Co. v.
Powers, 191 U. S. 379, Wisconsin, Minnesota & Pacific Railroad v. Jacobson, 179 U. S.
287, 297,
Wood V. Allen, 111 la. 97, . Worcester v. Boston, 179 Mass. 41,
V. Garno, 182 Mass. 243,
V. Marchant, 14 Pick. 510,
Wright V. Dresser, 140 Mass. 147,
149,
Wurts V. Hoagland, 114 U. S. 606, 540 Wyeth V. Cambridge Board of
Health, 200 Mass. 474, . . 425
Yick Wo V. Hopkins, 118 U. S. 356, 278
246
239 127 25 535 290
250
OPINIONS
OF
DANA MALONE, ATTOENEY-GENERAL.
Public Officer — Resignation — Acceptance — Governor — Executive Council.
The resignation of a public officer, appointed, with the advice and consent of the Council, by the Governor, becomes effective upon acceptance by the Gov- ernor without further action thereon by the Executive Council.
I have the honor to acknowledge the receipt of your letter of the 18th, in which you inform me that at a meeting of the Exec- utive Council, held January 17, —
It was voted that the opinion of the Attorney-General be asked as to whether action by the Executive Council is necessarj^ upon the matter of the acceptance of the resignation of an official appointed by His Excel- lency the Governor and confirmed by the Executive Council.
That such officer has the absolute right of resignation, sub- To the ject to the acceptance thereof by the proper authority, appears i906
,,.... . «/xi January 24.
to be the prevading doctrine in the United States, and the right
of resignation is recognized in the statutes and also in practice. In my opinion it is the law in this Commonwealth that an ap- pointive officer may resign his office, and that such resignation becomes effective upon its acceptance by the appointing power. That being the law, it remains to be determined whether or not the Executive himself is the appointing power, or whether the power of appointment created by statute in any particular case is shared by the Executive Council.
OPINIONS OF THE ATTORNEY-GENERAL.
The Constitution of the Commonwealth defines the scope and the (hity of the Council as follows (chapter II., section III., article I.): —
There shall be a council for advising the governor in the executive part of the government, ... and the governor, with the said councillors, or five of them at least, shall and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, according to the laws of the land.
The power of the Governor to appoint is mentioned in the Constitution only in connection with judicial officers, as enumer- ated in chapter II., section I., article IX., which says that such officers "shall be nominated and appointed by the governor, by and with the advice and consent of the council." The appoin- tive power, has however, been repeatedly vested in the Gov- ernor by the Legislature.
In the case of removals from office, it seems that an oflScer appointed by the Governor, with the advice and consent of the Council, cannot be removed by the Executive alone, and that the consent of the Council is equally necessary for such action upon the part of the Executive. The removal of a public offi- cer, however, is clearly to be distinguished from his voluntary resignation; and if he possesses an absolute right to resign, sub- ject to acceptance by the appointing power, the resignation becomes effective upon such acceptance, without action on the part of any official body whose approval may be required either for appointment or removal.
It is clear that the Governor is the appointing power, and a resignation tendered to and to be accepted by him becomes effective u])on .such acceptance, without any action upon the l)art of the Council; and that the Constitution does not con- template, and probably does not authorize, any action by the Council beyond its approval of an appointment or concurrence ill a removal made by the Executive.
I am therefore of opinion that no action by the Executive Council is necessary upon the matter of the acceptance of the resignation of an official appointed by His Excellency the Gov- ernor and confirmed by the Executive Council.
DANA M ALONE, ATTORNEY-GENERAL.
District, Police and Municipal Courts — Justices and Clerks — Salaries — Readjustment — County Treasurer — Franklin County.
St. 1904, c. 453, which established the salaries of the justices, clerks and assistant clerks of certain district, police and municipal courts upon a basis of popula- tion, expressly excepted from such classification the justices and clerks of the district courts of Franklin County, and such exception was not affected by St. 1905, c. 339, providing for a readjustment of such salaries bj' the county treasurers of the several counties, after the taking of the decennial census of the year 1905.
It follows, therefore, that the treasurer of the county of Frankhn is not authorized to readjust the salaries of the officers of the district courts of such county upon any basis of population.
I beg to acknowledge the receipt of vour favor of the 19th, xothe
r. 1 1- /-. • Controller
enclosing a letter from the treasurer of Franklin Coiintv, m of county
'^ ^ ■- Accounts.
which he states that he has readjusted the salaries of the officers j^.^^^ 30 of the district courts of that county, and submits the question whether his action as stated will meet with your approval. You ask my opinion as to his duties under St. 1905, c. .339, § 1, taken in connection with St. 1904, c. 453,
St. 1904, c. 453, was an act to establish the salaries of the justices, clerks and assistant clerks of certain police, district and municipal courts. By section 1 the' district, police and munic- ipal courts, other than the municipal court of the city of Bos- ton, were divided into ten classes, according to population, for the purpose of determining the salaries of the oflBcers thereof, and in each case the districts affected were included under the appropriate class, as, for instance, Class G, which is as follows : —
Courts whose judicial districts have a population of from twenty thousand to thirty thousand, to wit, the fii'st district court of southern Worcester, the district court of central Berkshire, the district court of northern Berkshire, the first district court of northern Worcester, the fourth district court of Bristol, the second district court of eastern Worcestei, the district court of western Worcester, the district couit of western Norfolk and the first district court of southern Middlesex; salaries: — Justice, fifteen hundred dollars; clerk, nine hundred dollars.
Section 2 of this act is as follows: —
OPINIONS OF THE ATTORNEY-GENERAL.
The justices and clerks of the district courts in the county of Franklin shall receive from said county annual salaries as follows: — The justice of the district court of Franklin, fifteen hundred dollars; the clerk, nine hundied dollars; the justice of the district couit of eastern Franklin, eight hundred dollars; che clerk, four hundred and eighty dollars.
The justice and clerk of the district court of eastern Hampshire shall receive from the county of Hampshire aimual salaries as follows: — Tlie juscice, one thousand dollars; the clerk, six hundred dollars.
It ai>pears, therefore, that the justices and clerks of the dis- trict courts in the county of Franklin, as well as the justice and clerk of the district court of eastern Hampshire, were excepted from the classification established by section 1, and were not aflPected by its provisions with regard to population.
St. 1905, c. 339, § 1, provides for a readjustment of salaries after the taking of the decennial census of the year 1905, "so as to correspond with the schedule of salaries provided for by chapter four hundred and fifty-three of the acts of the year nineteen hundred and four." This readjustment is to be made in each case by the county treasurer of the county concerned, in accordance with the provisions of the chapter above referred to.
Acting under this statute, the county treasurer of the county of Franklin has made a readjustment of the salaries of the offi- cers of the district courts of that county, and now desires to be informed by you whether or not such readjustment is to be approved by you.
I am of opinion that St. 1905, c. 339, cannot be construed to amend St. 1904, c. 453, except in so far as the classification of si)ccified districts in the classes established by section 1 may be changed by the new basis of computation. The obvious pur- l)ose of the act is to provide that instead of the previously existing tables of population the later tables established by the census of 1905 are to be used in determining what special dis- tricts are to be included under any of the ten classes. The Legislature has, however, seen fit to exclude the county of Franklin and one district in the county of Hampshire from the provisions of section 1, and to establish fixed salaries for the
DANA MALONE, ATTORNEY-GENERAL.
court officers included within the act, which are not affected by population. In my opinion this provision remains unchanged by the enactment of St. 1905, c. 339, and it must follow, there- fore, that the treasurer of the county of Franklin was not au- thorized to readjust the salaries of the officers of the district courts upon any basis of population.
Constitutional Law — Governor — Petition for Pardon — Executive Council.
The Governor maj-, in his discretion, refuse to refer to the Executive Council a petition for pardon or a petition for commutation of the death penalty.
I have the honor to acknowledge the receipt of your favor to the of the 24th, in which you ask whether the Governor, in his ' i9og discretion, has the constitutional right to refuse to refer a peti- — - tion for pardon to the honorable Council, in case he deems it should not be granted, and also whether he has a right to refuse to refer a petition for the commutation of the death penalty, in case he believes such commutation should not be granted; and I beg leave to say that the Constitution of Massachusetts, part the second, chapter II., section I., article VIII., provides: —
The power of pardoning offences . . . shall be in the governor, by and with the advice of council.
The power to commute is an incident of the power to pardon; it is pardoning upon condition of the convict's voluntary sub- mission to a lesser punishment. The two questions may, there- fore, be answered together, as they are both governed by the language in the Constitution above quoted. Power to pardon under that provision lies solely with the Governor, by and with the advice of the Council.
I am of opinion that the Governor may refuse to refer to the Council a petition for pardon or a petition for commutation of the death penalty. By the Constitution of Massachusetts, part the second, chapter II., section I., article IV.: —
To th« S«nat«.
OPINIONS OF THE ATTORNEY-GENERAL.
The governor shall have authority, from tune to time, at his discretion, to assemble and caU together the councillors of this commonwealth for the time being; and the governor with the said counciUors, or five of them at least, shaU. and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, agreeably to the constitution and the laws of the land.
If he desires their advice he may call them together and take it. If he does not desire their advice, he is not obliged to take it unless he proposes to act upon it after he has taken it.
A former Attorney-General has ruled that the Governor may refuse to pardon a convict although the pardon is recommended by the Council, and said: —
The Council has no pardoning power. The Governor, it is true, cannot exercise the power of pardon vested in him excepting by the advice oi the Council. But he cannot be directed by that body to" exercise the power; for, if he could be, the power would be in the Council and not in him, and he would be a ministerial officer only to execute the power so vested in that body. The power to pardon necessarily imports the right to refuse pardon. (1 Op. Atty.-Gen. 199.)
IxToxiCATixG Liquors — Inxholder — "Open" or "Public
Bar."
An "open" or "public bar" is a bar or counter kept and maintained principally if not exclusively for the sale of intoxicating liquor's under any one of the first three classes of licenses enumerated in R. L., c. 100, § IS, to be drunk at such bar or counter when furnished, such bar or counter being open to the public so that all persons not excepted by the pro-visions of R. L., c. 100, § 17, cl. 4, may have access thereto, and may obtain liquor for immediate consumption.
An innholder who maintains an inn or hotel may, under the laws of this Common- wealth, have upon his premises a bar which is not within the above definition an "open" or "public bar."
I have the honor to acknowledge the receipt of an order Febru*ry 8. adopted by the honorable Senate on the sixth day of February, 190G, requiring the opinion of the Attorney-General upon the following: —
Ordered, That the Senate request of the Attorney-General his opinion on the following question: Under the laws now in force, can a hotel in the Commonwealth legally have a bar which is not a public or open bar?
DANA MALONE, ATTORNEY-GENERAL.
R, L., c. 100, § 18, establishes five classes of licenses which are material to the present question. These are as follows: —
First class. To sell liquors of any kind, to be drunk on the premises.
Second class. To sell malt liquors, cider and light wines containing not more than fifteen per cent of alcohol, to be drunk on the premises.
Third class. To sell malt liquors and cider, to be drunk on the premises.
Fourth class. To sell liquors of any kind, not to be drunk on the premises.
Fifth class. To seU malt .liquors, cider and light \\ines containing riot more than fifteen per cent of alcohol, not to be drunk on the premises.
Section 17, cl. 7, of the same chapter, prescribes conditions which shall be attached to licenses issued by authority of chap- ter 100. These conditions establish that each license of the first three classes shall be issued only to persons holding licenses either as innholders or as common victuallers, but from the language of the second paragraph of clause 7, which deals with the first five classes, it may fairly be assumed that the statute contemplates that an innkeeper may also hold a license either of the fourth or fifth class from the following language; "but an innkeeper shall not upon such holiday sell, give away or deliver intoxicating liquor in his inn under a fourth or fifth class license.""
If an innkeeper holds a license under either the fourth or fifth classes, he would be authorized to sell liquors not to be drunk on the premises, but he would necessarily have a place where such liquors were kept, stored and sold.
A bar is defined by the Century Encyclopedia and Diction- ary as ''that portion of a tavern, inn, coffee-house or the like, where liquor, etc., are set out. A counter over which articles are served in such an establishment.'' Such a place for the keeping or selling of liquors not to be drunk on the premises would not, in my opinion, constitute a public bar, although it is clearly within the definition of a bar. That a distinction existed between the word "bar" and the term "public bar" is, I think, shown by the provision which formerly existed in Pub. Sts., c. 100, § 9, cl. 5, which provided that: —
OPINIONS OF THE ATTORNEY-GENERAL.
Each license of the first, second and tliird classes [identical with the first three classes enumerated in R. L., c. 100, § 18] shall be subject to the further condition that the licensee shall not keep a public bar and shall hold a lironso as an innholder or common victualler.
Under this statute, the court, in Commonwealth v. Rogers, 135 jMass. 536, at p. 539, defined the term "public bar" as fol- lows : —
It was doubtless the purpose of the Legislature, in requiring that a license to sell liquors, to be drunk on the premises, shall be subject to the "condition that the licensee shall not keep a public bar, and shall hold a license as an innholder or common victualler," to discourage to some extent the sale of hquor to be drunk on the premises, except in connection with meals or lunches. Pub. Sts., c. 100, § 9, cl. 5. This consideration is entitled to some weight in determining the meaning of the term "pubhc bar" as used in the statute.
It would certainly be difficult, and probably impossible, to define with absolute precision the meaning of the term "public bar," so as to include e\'er3i;hing that would, and exclude ever^-thing that would not, constitute such a bar, though under any given state of facts it might not be difficult to determine whether or not they constituted such a bar.
Such a bar must obviously be something at which liquors are sold, to be drunk on the premises; and it is equally obvious that everj^hing at which liquors are so sold is not necessarily such a bar; for the purpose of the license is to authorize such sales, unless made in a certain manner. In a somewhat general way, a public bar may be defined as a counter, table, shelf or other similar device, designed ancl used for the purpose of facilitating the sale and delivery of liquors there kept to any one who may apply for them, to be then and there drunk, not in connection with meals, lunches or food. A lunch counter, designed and used for furnishing lunches, would not be such a bar merely because sales of liquor only are .sometimes mrde there.
It would seem that in this opinion the court goes even further in distinguishing between a bar and a public bar, in stating that "a lunch counter, designed and used for furnishing lunches, would not be such a bar [public bar] merely because sales of liquor only are sometimes made there." It would follow, there- fore, that an innholder holding a license of the first class might, m connection with a restaurant, maintain a bar or counter at
DANA MALONE, ATTORNEY-GENERAL.
which food was furnished, and over which liquors were sold, generally in connection with food, but sometimes without food, and would not be maintaining a public bar, though he might well be held to be maintaining a bar. The distinction seems to be whether or not the principal business conducted at a bar or counter is the sale of liquors without food, or whether the sale of liquors is merely incidental to the business of furnishing food. Commonwealth v. Everson, 140 Mass. 292; Commonwealth v. Rogers, 135 Mass. 536.
The term "open bar" has never been defined by our courts, but I am of opinion that it is synonymous with the term "pub- lic bar," and that a public bar may, for the purposes of this in- quiry, be defined as a bar or counter kept or maintained princi- pally, if not exclusively, for the sale of liquors under any one of the first three classes of licenses enumerated in R. L., c. 100, § 18, to be drunk at such bar or counter when furnished, such bar or counter being open to the public so that all persons not coming within the exceptions enumerated in section 17, clause 4, might have access thereto, and might obtain, for the purposes of immediate consumption, such liquor as they desire. I am also of opinion that an innholder w'ho maintains a hotel or inn may, under the laws of this Commonwealth, have a bar upon his premises which is not, within the above definition, a public bar.
County Commissioners — Contracts — " Construction of Public Works" — Notice — Posting and Publication.
The words "construction of public works," as used in R. L., c. 20, § 27, providing in part that all contracts made by the county commissioners for the construc- tion of public works, if exceeding $800 in amount, shall be made in writing and after posting and publication of notice as therein prescribed, do not require that notice of proposals for the emplojTuent of architects to prepare plans shall be posted and published.
I beg to acknowledge the receipt of vour request of January To the
'^ '^ 1 - -^ - Controller
IS, asking my opinion as to whether the emplovment of archi- of county
' o ^ r tr ^ ^ Accounts.
tects to prepare plans for the construction of public works is p^bJuaryo. included within the provisions of section 27 of chapter 20 of
10 OPINIONS OF THE ATTORNEY-GENERAL.
tlie Kcvised Laws; that is, whether it is required that notices for proposals for the drawing of plans for such work shall be posted and published.
R. L., c. 20, § 27, provides: —
All contracts made by them for building, altering, furnishing or repair- ing public buildings, or for the construction of pubUc works, or for the purchase of suppUes, shall, if exceeding eight hundred dollars in amount, be made in wTiting, after notice for proposals therefor has been posted in a conspicuous place in the county coui't house for at least one week and has been pubUshed at least three times in a newspaper, if any, pub- Ushcd in the city or town interested in the work contracted for; otherwise in the newspaper of the most general circulation in the county. They shall, in each case, make and file with the county treasurer a certificate under oath of such publication and posting. All proposals shall be publicly opened in the presence of a majority of the county commissioners and recorded in their records. In an emergency, repairs may be contracted for without such advertisement or posting. They shall certify to the exigency upon the orders to the county treasurer for pa3mient of all bills for such repairs. All contracts made under the provisions of this section, and all changes in, or additions to, or agreements or orders for extras under, such contract, shall be in writing and recorded in a book kept for the purpose with the records of the county. No contract made in violation of the provisions of this section shall be vahd against the county, and no paJ^nent thereon shall be made by the county. The commis- sioners may, however, cause county buildings to be repaired by day work, if, in the judgment of the board, expressed in a vote, the best interests of the county require; but no bill in excess of eight hundred dollars for repairs done by day work shall be paid by the county treasurer unless, upon or with the bill, the clerk of the county commissioners has certified that such vote is entered upon their records.
The sole question raised is as to the meaning of the phrase "construction of public works." This phrase is susceptible of two interpretations: it may include work of every kind which has any connection, direct or indirect, with the construction of a public work, or it may include only actual building operations in accordance with a plan already prepared. The words "con- structed" and "construction" as used in other statutes have been before the court for interpretation. See Donnell v. Star- Ughl, 103 Mass. 227; Attorney-General v. Ware River Railroad
DANA MALONE, ATTORNEY-GENERAL. 11
Co., 115 Mass. 400; McDonald v. The Nimbus, 137 Mass. 360; Crowell V. Caye Cod SJiip Canal Co., 168 Mass. 157.
These decisions, however, furnish Httle assistance in the pres- ent inquiry. In Crowell v. Cape Cod Ship Canal Co., supra, the question was, what was meant by the words "all claims for labor performed or furnished in the construction of said canal"? It became necessary to determine whether or not the services of the president and clerk of the corporation, the chief engineer, the assistant engineer and a clerk of the chief engineer were in- cluded within this expression. The court decided that these services were not so included, and in the opinion said: —
Presumably an important part of the services rendered in the engineer- ing department were in locating the canal before beginning the work of construction.
But pointed out that the statute made a distinction between locating and constructing in the phrase "said canal company may locate but shall not begin to construct said canal" before making the deposit required by the statute. There is not in the language of R. L., c. 20, § 27, any such clear indication of a limitation upon the meaning of the word "construction." It seems, however, that the meaning of the word as so limited is the more natural one, and, consequently, that in the absence of some special reason for adopting another meaning this meaning is to be adopted. Not only is there no reason for departing from the more usual interpretation, but there is reason to con- clude that the Legislature intended to use the word in its more natural and restricted meaning.
When plans and specifications for construction have been pre- pared, proposals for furnishing labor and material can be read- ily made, since the requirements to be complied with can be definitely stated. When, however, only the general nature of the work contemplated has been determined upon, proposals for drawing the plans for such work cannot be so readily made, since the requirements cannot be definitely stated. In the ab- sence of language which compels an inclusion of the prepara- tion of plans among those things which may be contracted for
12 OPINIONS OF THE ATTORNEY-GENERAL.
onlv after notice for proposals has been posted and published, it is not to be assumed that the Legislature intended it to be so
included.
I am therefore of opinion that the words "construction of public works" were used by the Legislature with the intention that they be narrowly construed, and that the statute does not require that notice for proposals for the employment of archi- tects to prepare plans shall be posted and published.
To the Houae Committee on Bills in the Third Roadinc. 1!)0« February 14.
Charitable Corporation — Special Charter — Increase IN Holdings of Real and Personal Property.
a corporation chartered under a special act, for the purpose of providing for the support of aged, destitute women not otherwise provided for, may increase its holdings of real and personal property under the general provision of R. L., c. 125, § 8, authorizing any corporation organized under general or special laws for educational, charitable, benevolent or religious purposes to hold real or personal estate to an amount not exceeding $1,500,000, provided that the charter of such corporation contains no provision inconsistent therewith.
I beg to acknowledge receipt of your favor of the 8th in reference to House Bill No. 208 and Senate Bill No. 15, of the current year, in which you inquire whether the corporations mentioned therein, namely, the Trustees of Monson Academy and the Association for the Relief of Aged and Destitute Women in Salem, "are empowered by general law to increase their holdings of real and personal estate to the extent specified in the said bills, so that the legislation embodied in these bills would be superfluous." Your letter further states that: —
It is understood, and is made a part of the question herewith submitted, that a yearly fee for tuition is charged by the Monson Academy, and that a fee, or lump sum, for the admission of inmates is charged by the Associa- tion for the Relief of Aged and Destitute Women in Salem; but in neither case is the fee equal to the expenditure made necessary by the admission of a scholar in the one case, or of an inmate in the other.
R. L., c. 12.5, § 2, provides that a corporation may be formed by authority of the chapter, "for any educational, charitable, benevolent or religious purpose."
DANA MALONE, ATTORNEY-GENERAL. 13
Section 8 provides: —
Any corporation organized under general or special laws for any of the purposes mentioned in section two and under sections thirteen to sixteen, inclusive, maj^ hold real and personal estate to an amount not exceeding one million five hundred thousand dollars, which shall be devoted to the purposes set forth in its charter or agreement of association, and it may receive and hold, in trust or otherwise, funds received by gift or bequest to be devoted bj^ it to such purposes.
The committee desire to be informed whether or not the cor" porations hereinbefore named may hold real and personal estate in the amount specified by authority of R. L., c. 125, § 8, with- out express legislative sanction therefor.
In the case of Senate Bill No. 15, the Association for the Relief of Aged and Destitute Women in Salem was incorporated under a special act (St. 1860, c. 183), for the purpose of pro- viding for the support of aged, destitute women not otherwise provided for, and for such purpose was authorized to hold real and personal property to the amount of $100,000. This amount was subsequently increased by St. 1885, c. 21, to $300,000. The purpose for which this association was chartered is clearly a charitable or benevolent one, within the meaning of R. L., c. 125, § 2, since such purpose is for the relief of the needy, the sick or the afflicted. See Chamberlain v. Stearns, 111 Mass. 267; Mass. Soc. for Preventioji of Cruelty, etc., v. Boston, 142 Mass. 24; New England Theosophical Soc. v. Boston, 172 Mass. 60.
There seems to be no good reason why it might not as w'ell have been incorporated under the general laws existing in 1860 as by special enactment. See St. 1857, c. 56; Gen. Sts., c. 32.
It follows, therefore, that it is within the permission given by R. L., c. 125, § 8, and may increase its holdings of real and per- sonal estate to the amount specified.
In the case of House Bill No. 208, it is equally clear that the Trustees of Monson Academy are a corporation formed for edu- cational, benevolent or charitable purposes. See Mt. Hermon Boys School v. Gill, 145 Mass. 139; W esley an Academy \. Wil- hraham, 99 Mass. 599. But there is a distinction in the Ian-
OPINIONS OF THE ATTORNEY-GENERAL.
guage of the act of incorporation (St. 1804, c. 10, by which, in section 2, the corporation is authorized to hold real and per- sonal estate), in that there is the following proviso: —
Provided, that the annual income of the whole estate of the said corpo- ration shall not exceed five thousand dollars.
Assuming that this section has not, since its enactment, been amended so as to destroy the force of this prohibition, I am of opinion that the corporation may not take advantage of the provisions of R. L., c. 125, § 8, and that special legislation is necessary to authorize any increased holdings of real and per- sonal estate bv it.
Metropolitan Park Commission — Rules and Regulations FOR THE Use of the Charles River.
The Metropolitan Park Commission may, regardless of the ownership of the soil beneath the stream, enact and enforce rules and regulations governing the public use of the Charles River at any point within the metropolitan parks district, provided that such rules and regulations are not repugnant to the power of Congress to regulate commerce, and are not in conflict with the authority to supervise tide waters, vested by R. L., c. 96, § 8, in the Board of Harbor and Land Commissioners.
I beg to acknowledge the receipt of your favor of January
To the Motro- politAn I'urk
<*°^'^'°"- 31^ in which the opinion of the Attorney-General is requested
February 17. i
by
the Metropolitan Park Commission upon the following questions : —
First. — WTiether the commission has authority to enact and enforce rules and regulations governing the pubUc use of the Charles River at any point within the metropolitan parks district, regardless of the owner- ship of the soil beneath the river; or whether the right is limited to those parts of the river where the Commonwealth, through this commission, owns and controls the bed of the river.
Second. — If the right to enact and enforce rules and regulations under the act of 1900 is limited to those parts of the river where the commission owns and controls the bed of the river, what authority does the act of 1900 give heyond that contained in section 4 of chapter 407 of the Acts of tlie year 1893?
DANA M ALONE, ATTORNEY-GENERAL. 15
Acts of 1893, c. 407, § 4, provides that: —
... In fui-tlierance of the powers herein granted, said board may employ a suitable police force, make rules and regulations for the govern- ment and use of the pubhc reservations under their care, and for breaches thereof affix penalties not exceeding twenty dollars for one offence, to be imposed by any court of competent jurisdiction, and in general may do all acts needful for the proper execution of the powers and duties granted to and imposed upon said board by the terms of this act.
Acts of 1897, c. 121, § 3, provides that: —
The pohce appointed or emploj^ed by said commission, . . . shall have within the metropoUtan parks district all the powers of poUce officers and constables of cities and towns of this Commonwealth, except the power of serving and executing civil process.
Acts of 1900, c. 340, § 1, provides that: —
The metropolitan park commission may from time to time make rules and regulations to govern the public use of the Charles river, the Neponset' river, and the Mystic river, within the metropolitan parks district, and of the ponds and other waters along which it liolds abutting lands for public open spaces in said district, and for breaches thereof may affix penalties not exceeding twenty dollars for one offence, to be imposed by any court of competent jurisdiction; and in general may do all acts needful for the proper execution of the powers and duties granted to and imposed upon said board by this act. . . .
By this section the Legislature has delegated to the commis- sion authority to regulate the public use of the entire Charles River as far as it flows within the metropolitan parks district, unless the words "along which it holds abutting lands," etc., qualify all the rivers and waters mentioned, and not merely "the ponds and other waters" immediately preceding those words. Such a construction, however, seems to me an impos- sible one.
If, then, the Commonwealth itself had the power to regulate this use of the river, it has delegated that pow'er to the Board of Park Commissioners. Such a delegation is constitutional. In Brodbine v. Revere, 182 Mass. 598, at p. 603, the court says : —
OPINIONS OF THE ATTORNEY-GENERAL.
Wo arc of opinion that the authority given to the Board of Metropohtan Park Commissioners to make rules and regulations in regard to parks and ways, with a provision that breaches of these rules shall be punishable like breaches of the peace, is not a delegation of legislative power which is unconstitutional.
The question, therefore, is whether the Commonwealth had authority to regulate the public use of the Charles River. In Massachusetts it has been repeatedly held that the public has the right to navigate and fish for pleasure, or as a business, over tidal waters, and that it has the right to navigate and to luivc fish freely pass in rivers above tide water, if navigable in fact. Drake v. Curtis, 1 Cush. 395, 413.
In Commonwealth v. Alger, 7 Cush. 53, the court says (p. 9N):-
In addition to these [private rights] are two acknowledged pubhc rights, which are regarded as such, to be preserved and maintained for general and common use, although every portion of the soil over which the rivers flow is the private property of the riparian owners. These are: 1 . The right of passage with boats, rafts and other vessels adapted to the use of such waters; 2. The right of the public to have these rivers kept open and free for the migratory fish. . . . Both of these rights are recognized as pubhc rights in the case of Comvionioeallh v. Chapin, 5 Pick. 199.
In Blood V. Nashua (t- Lowell Railroad, 2 Gray, 137, 139, it is said : —
But there is another right in rivers and water courses, for navigation, boating and rafting. The rule of the common law is that waters are not navigalile unless within reach of the ebb and flow of the tide. But it has often been held here that the public have a right to the use of the large rivers, and, indeed, of all rivers and water courses, suitable for boats and raft.s, and in that sense they are deemed navigable, though above the ebb iiiul flow of the tide. In these, there is a right of w^ay for boats and rafts.
It is also well settled that the Commonwealth may make rules and regulations governing these public uses. Commonwealth v. Vincent, 108 Mass. 441, 447.
DANA MALONE, ATTORNEY-GENERAL. 17
The power of the Legislature of the Commonwealth over the public rights of navigation and fishing in any waters within its boundaries is unrestricted, provided it does not interfere with the power to regulate commerce, conferred upon the general government by the Constitution of the United States. Cooley v. Philadelphia Board of Wardens, 12 How. 299. ... In those waters, whether within or beyond the ebb and flow of the tide, which are not navigable from the sea for any useful purpose, there can be no restriction upon its authority to regulate the public right of fishing, or to make any grants of exclusive rights which do not impair other private rights already vested.
The private rights of riparian owners are not now under dis- cussion and could not be affected by any action of the Park Commission. See Proprietors of Mills v. Commonivealth, 164 Mass. 227, at p. 229.
From the foregoing statutes and cases I think it is clear that the commission has authority to enact and enforce reasonable rules and regulations governing the public use of the Charles River at any point within the metropolitan parks district, re- gardless of the ownership of the soil beneath the river, and above and below the dam at Watertown. Such regulations as are made for the use of that part of the river below the dam may be limited, however, by the power of Congress to regulate commerce, and should, furthermore, be made in the light of the authority of the Board of Harbor and Land Commissioners, as provided in R. L., c. 96, § 8: —
Said board shall have general care and supervision of the harbors and tide waters within the Commonwealth, of the flats and lands flowed thereby, of the waters and banks of the Coimecticut river within the commonwealth and of all structures therein, in order to prevent and remove unauthorized encroachments and causes of every kind which may injure said river or interfere with the navigation of such harbors, injure their channels or cause a reduction of their tide waters, and to protect and develop the rights and property of the commonwealth in such flats and lands; and it may make survej's, examinations and ob- servations necessary therefor.
As, in my opinion, the first question should be answered in the affirmative, an answer to the second question becomes un- necessary.
18
OPINIONS OF THE ATTORNEY-GENERAL.
Tide Water — Cities and Towns — License — Fish Trap.
A fish trap cannot be lawfully maintained in tide water without a license, as required by R. L., c. 91, § 116, from the selectmen of the town, or mayor and board of aldermen of the city, within which such fish trap is located.
To the Board xhc reccnt inquirv of the Board of Harbor and Land Com-
of Harbor and n .^ i p n •
Land Com- missioners. referring to this department the tollowmg communi-
niisBiODcrs. jo
Febri^- 2<>. catioH from the selectmen of Provincetown —
Town of Provincetowx, Office of Selectmen, Jan. 22, 1906.
Harbor and Land Commissioners of Alassachusetts.
Gextlemen: — Do you consider the selectmen of this to-rni have any jurisdiction over a fishing trap that is constructed the same as a fish weir, only it has no poles? Anchors and rocks are used to keep it in place. As we read the Re\Tised Laws it looks to us as though a fish trap requires a license the same as a fish weir. We would like your opinion on it, and will abide by your decision.
Very truly yours,
Geo. Allen, Heml^n S. Cook, C. Austin Cook, Selectmen of Provincetown.
and requesting an opinion as to whether the Board should con- sider an unlicensed fish trap a nuisance in tide water, came duly to hand.
R. L., c. 91, § 116, provides that: —
The mayor and aldermen of a city and the selectmen of a town lying upon tide water, except cities and towms bordering on Buzzard's bay, may in WTiting authorize any person to construct weirs, pound nets or fish traps in said waters witliin the hmits of such city or town for a term not exceeding five years, if such weirs, pound nets or fish traps do not obstruct navigation or encroach on the rights of other persons.
This statute in express terms applies to fish traps as well as to weirs. If the "fishing trap," as the selectmen in their letter assume, is a fish trap, it cannot be lawfully maintained without
DANA MALONE, ATTORNEY-GENERAL. 19
a license from the selectmen of the town within which it is located.
R. L., c. 91, § 118, provides that whoever maintains such a fish trap, without a license, shall forfeit ten dollars for each day he maintains such fish trap, and may be indicted therefor and enjoined therefrom.
InSURANXE — FOREIGX IxSURANXE COMPAXY — TaX UPOX
Premiums — Reciprocal Legislatiox.
A tax or excise assessed to a Xew York life insurance company upon all premiums charged or received upon contracts made by it in this Common-wealth, at a rate equal to the highest rate imposed during the preceding year by the State of New York upon Massachusetts life insurance companies doing business in New York, in accordance with the pro^asions of R. L., c. 14, § 28, is properly imposed upon such a company since chapter 118 of the laws of 1901 of the State of X'ew York went into effect; and the tax or excise so assessed need not be reduced either because the X^ew York statute has been held in that State not to be applicable to the receipt of premiums upon contracts entered into by a domestic company prior to the passage of the act, or because a X'ew York insurance companj- doing business in this Commonwealth may be assessed upon a class of receipts which are possibly not assessed to Massachusetts companies doing business in X'ew York, — especially since the going into ■ effect of chapter 94 of the Acts of 1905 of the State of X'ew York.
Under date of Jan. 11, 1906, you asked an opinion of mv To the Tax
J TT TT 1 T-. 1 "^ • . , " Commission
predecessor, Hon. Herbert Rarker, upon certain questions relat- i^oe
. p . . March 7.
ing to the taxation of life insurance companies. You say: —
Life insurance companies, both foreign and domestic, are taxed in ^Massachusetts, under the pro\'isions of section 24, chapter 14 of the Revised Laws, upon the net value of aU policies in force on the preceding thirty-first day of December, issued or assumed by such company and held by residents of the Commonwealth. They may also be taxed under the reciprocal provision of section 28 of chapter 14.
R. L., c. 14, § 24, provides that a domestic or foreign com- pany or association which is engaged in the business of life in- surance within this Commonwealth, —
shall annually pay an excise tax of one-quarter of one per cent upon the net value of all poUcies in force on the prececUng thirty-first day of December, issued or assumed by such company and held bj' residents of the commonwealth, as determined b3' the tax commissioner. . . .
20 OPINIONS OF THE ATTORNEY-GENERAL.
Section 28 provides that: —
A life insurance company, association or partnership, incorporated or associated by authority of any other state of the United States, by the laws of which a tax is imposed upon the premium receipts of life insurance companies chartered by this commonwealth and doing business in such state, or upon their agents, shall annually, so long as such laws continue in force, pay a tax or excise upon all premiums charged or received upon contracts made in this commonwealth, at a rate equal to the highest rate so imposed during the year.
Laws of New York, 1901, c. 118, § 1, provides that: —
An annual state tax for the privilege of exercising corporate franchises or for carrying on business in their corporate or organized capacity within this state, equal to one per centum of the gross amount of premiums received during the preceding calendar year, for business done in this state, whether such premiums were in the form of money, notes, credits or any other substitute for money, shall be paid annually into the treasury of the state, on or before the first day of June, by the following corpora- tions; . . .
2. Every insurance corporation incorporated, organized or formed under, by or pursuant to the laws of any other state of the United States and doing business in this state, except a corporation doing a fire insurance business or a marine insurance business . . .
This act was amended by Laws of New York, 1905, c. 94, by providing that the tax should be on the gross amount of pre- miums received during the preceding calendar year —
for business done at any time in this state, which gross amount of pre- miums shall include all premiums received during such preceding calendar year on all policies, certificates, renewals, policies subsequently canceled, insurance and reinsurance during such preceding calendar year, and all premiums that are received during such preceding calendar year on all policies, certificates, renewals, policies subsequently canceled, insurance and reinsurance executed, issued or delivered in all years prior to such preceding calendar year, whether such premiums w^re in the form of monej', notes, etc.
In 1905 the Tax Commissioner of Massachusetts assessed the Metropolitan Life Insurance Company of New York a tax under section 24 upon the net value of its policies, amounting to $21,- 058.58; and also assessed a tax upon the same company, under
DANA MALONE, ATTORNEY-GENERAL. 21
the provisions of section 28, based upon the premiums received during the year ending Dec. 31, 1904, of $46,618.25. By an agreement made with the Commissioner of Insurance of the State of New York, the taxes assessed under sections 24 and 28 are not deemed to be cumulative; that is, a tax under each section is estimated and then only the larger one is collected.
In the case of The People of the State of New York, ex rel. The Provident Savings Life Insurance Society v. Miller, decided by the New York Court of Appeals in 1904, it was held that under chapter 118 of the Laws of 1901 the premium receipts of a domestic insurance company could only be assessed upon receipts from insurance written subsequently to the passage of the act, and that receipts of premiums upon contracts entered into before the enactment of the statute could not be taxed.
The Metropolitan Life Insurance Company has appealed from the tax assessed in Massachusetts under the provisions of sec- tion 28, upon the ground that under the New York decision only such receipts as were taxable in New York during the year 1904 could be taxed in Massachusetts for that same year. You request the opinion of the Attorney-General as to whether you were right in assessing the tax as you did upon the Metropolitan Life Insurance Company for the year 1904.
I am of opinion that the tax was properly assessed and no part of it should be repaid to the company. There are several grounds upon which the validity of the assessment can be main- tained : —
1. Section 28 provides that the tax or excise upon all pre- miums charged or received upon contracts made in this Com- monwealth shall be paid annually, so long as the laws in (he foreign State continue in force, and at a rate equal to the highest rate so imposed during the year. Under this section it is obvious that the exact form or quantity of premiums collected or taxed in the foreign State in a given year is immaterial, the only material question being, What was the highest rate im- posed by the foreign law during the year?
2. The New York decision does not affect the imposition of the Massachusetts tax. That case held, first, that the New York tax with respect to domestic corporations was a tax upon
22 OPINIONS OF THE ATTORNEY-GENERAL.
the exercise of a franchise; and second, that the act of receiving premiums from pre-existing contracts of insurance did not neces- sitate an exercise of the franchise; and the case was expressly distinguished from one involving the taxation of a corporation foreign to New York. Upon this point the court said : —
The statute designates the burden as one "for the pri\'ilege of exercising corporate franchises," and, consequently, it can be laid only upon such business as depended upon the exercises of such franchise. It could not have been lawfully i iposed upon the receipts of business contracts that the compan}'' had the right to collect and enforce by virtue of the contract, alone, and that did not depend upon the exercise of the franchise. . . . The tax is purely a franchise tax and nothing else as to domestic corpora- tions. The tax imposed "for carrying on business in their corporate or organized capacity" applies only to foreign corporations deriving their franchises from other sovereignties.
Moreover, section 28 of chapter 14 makes no distinction be- tween an excise upon the exercise of a franchise and an excise upon the doing of business in the State; either or both may properly be taxed. See Connecticut Ins. Co. v. Commonwealth, 133 Mass. 161, at p. 163: —
It has been uniformly held . . . that the Legislature has the power to impose an excise upon any business or calling exercised in the Com- monwealth, and upon any franchise or privilege conferred by or exercised within the Commonwealth. Portland Bank v. Apthorp, 12 Mass. 252; Commonwealth v. People's Five Cents Savings Bahk, 5 Allen, 428.
The power to impose an excise upon corporations or associations engaged within this Commonwealth in the business of life insurance, whether incorporated here or incorporated elsewhere and allowed by comity to carry on business here, cannot now be doubted.
Thus, the case of People v. Miller is irrelevant in this discus- sion; first, because its effect was expressly limited to domestic corporations, with an indication that all the premium receipts of a foreign corporation could be taxed; and second, because in Massachusetts there seems to be no objection to taxing "the right to do business" as distinguished from "the exercise of a fraiiciiise," even of a domestic company.
3. Under the act of New York, chapter 94 of the Acts of 190.5. the tax assessed on all life insurance companies, whether
DANA MALONE, ATTORNEY-GENERAL. 23
domestic or foreign, was made expressly measurable by the amount of premiums collected during the year 1904, whether upon new contracts or renewals of old contracts. Under that statute there can be no question but that Massachusetts com- panies were assessed a tax in New York in 1905 based upon all their premium receipts collected in New York during 1904; consequently, there can be no injustice in assessing the Metro- politan Company in Massachusetts a tax based upon all of its premium receipts collected in Massachusetts in 1904.
4. It might be argued (by analogy with the second point de- cided in People v. Miller, which I have not quoted) that the tax as assessed here in 1905 is retroactive in its action, because it imposed a burden upon the receipts of 1904. But it must be remembered that section 28 has been in force since 1873. Since that time all foreign life insurance companies have been subject to being taxed under its provisions, upon a certain contingency, i.e., the passing of a certain form of taxation law in a foreign State. That contingency occurred in 1901, since which time effect has properly been given to section 28.
5. It has been argued for the Metropolitan Company that upon a broad view of the policy of the Commonwealth it would be unjust to tax a New York corporation here upon receipts which were not taxed to foreign corporations in New York, and that it is especially unjust in this instance, as the Metropolitan Company is the only foreign company whose tax under section 28 exceeds the tax under section 24. The answer to this argu- ment is twofold: first, that the provisions of section 28 are plain, and contain no warrant for a reduction of the tax upon some vague principle of interstate justice; and second, that under the decision of People v. Miller it appears that Massachusetts corpo- rations in New York would be and probably are assessed a tax based upon all their New York premium receipts, whether re- ceived under old or new contracts. That this company is the only one which has so far been taxed under the provisions of section 28 does not seem a sufficient reason for abating the tax, as it is confessedly a tax, not upon the value of the policies in force, as in section 24, but upon the privilege of doing business as measured bv the amount of business done, — and the Metro-
24 OPINIONS OF THE ATTORNEY-GENERAL.
politan Company acknowledges that it has done by far the hirgest business in this Commonwealth, during the past few years, of any of the foreign companies.
The question of the constitutionality of section 28, under the clause of the Constitution which provides that "full power and authority are hereby given and granted to the said general court to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise and commodities w^hat- soever, brought into, produced, manufactured or being within the Commonwealth," has not been raised by the Metropolitan Company. I do not, therefore, go into the problem of how far a reciprocal or retaliatory tax, as enforced by the Tax Commis- sioner and affecting only certain corporations of certain States, such as is provided by section 28, would be constitutional under the clause above set forth.
Taxation — Corporate Bonds — Mortgage — Value of Bonds in Excess of Value of Mortgaged Real Estate.
The bonds of the New England Cotton Yarn Company, amounting to S5, 206,000 par value, are taxable to the holders thereof upon the excess of the amount outstanding of the assessed value, to wit, $2,105,575, of the real estate mortgaged to secure such bonds.
SmmisLfoncr. ^'^>" rcqucst the opiuiou of the Attorney-General as to M^8. whether the bonds of the New England Cotton Yarn Com-
pany, secured by a mortgage of real and personal property to The New England Trust Company, trustee, are taxable to the individual owners thereof. It appears that there are $5,206,000 par value of its bonds outstanding, and that its real estate is assessed for $2,105,575.
It is obvious that it has always been the policy of the Com- monwealth to tax as personal estate "all money at interest and other debts due the person to be taxed more than he is in- debted or pays interest for." Knight v. Boston, 159 Mass. 551, held that the bonds of a mercantile corporation, the Boston Water Power Company, secured by a mortgage to a trustee for bondholders, under which the trustee had entered and been assessed for more than the par value of the outstanding bonds,
DANA MALONE, ATTORNEY-GENERAL. 25
are exempt from taxation under Pub. Sts., c. 11, § 4, now R. L., c. 12, § 4. The court said (p. 553): —
When a mortgage is made to a trustee for bondholders, the mortgage interest is taxable to the trustee who represents them, as it would have been to the bondholders themselves if the mortgage had been made to them directly. In the present instance the trustees have paid the tax on the whole value of the land, which is equal to the amount of the bonds outstanding. The tax on the bonds must be abated.
The effect of this decision is to apply the exemption in all cases of mortgage debts, whether notes or bonds, and irrespec- tive of any intervening trust. There is nothing in the case, however, to indicate that the exemption is to be extended to the excess of a loan above the assessed value of the mortgaged real estate. As the policy of the Commonwealth has been and still is to tax all indebtedness, and as the exemption was created wholly to protect certain property from double taxation, and with an exception from the exemption in clear and unequivocal terms, I am of opinion that the bonds of the New England Cotton Yarn Company are taxable to the holders thereof with respect to the excess of the amount outstanding above the as- sessed value of the real estate subject to the mortgage.
The only cases besides the Knight case of interest upon this point are those of Firemen's Fire Insurance Co. v, Common- loealth, 137 Mass. 80, and Worcester v. Boston, 179 Mass. 41. In the first case it was held that a corporation owning mort- gages secured by real estate was entitled, under Pub. Sts., c. 12, §§ 14 to 16, and Pub. Sts., c. 13, §§ 39 and 40, to have the amount of the mortgages held by it deducted from the aggre- gate value of its shares in determining the amount of its fran- chise tax. This decision goes upon the ground that a mort- gagee's interest is "real estate subject to local taxation," within the meaning of the franchise tax statute.
In the second case it is said (p. 49) that: —
The provisions of Pub. Sts., c. 11, §§ 14, 15, 16, are rarely regarded, and the result intended by them has been practically reached by a failure on the part of the assessors to assess to the mortgagee, either as real or personal property', the sum represented by the mortgage.
JC.
OPINIONS OF THE ATTORNEY-GENERAL.
Also, in Abbott v. Frost, 185 Mass. 398, 399, it is said that: —
8ucli asscKt^mcnts are permitted by our laws relating to taxation, and have been held to be in strict accordance with their provisions.
These decisions seem to me to indicate conclusively that the words "taxable as real estate" are not limited, in their applica- tion to the interests of mortgagees, to interests actually taxed to the mortgagees in a given year, but include all such interests as might be assessed to them under section 16. The case of Knight v. Boston does not definitely decide this point, as the tax there had been assessed to and paid by the trustees; but to hold otherwise w'ould be to permit the exemption to rest upon the caprice of individual assessors as to whether they pre- ferred to assess the property to the mortgagor or to the mort- gagee. I do not think the language should be construed to have such an effect. Consequently, I am of opinion that only the excess of the bonds over the value of the real estate is tax- able, but that this is taxable irrespective of the party to whom the mortgagee's interest is actually assessed.
To the
Mosaachuaett^t Hig;bway Comtniaiiion.
1906 March 11.
Automobiles — Cities and Towns — Special Regulations — Statutory Construction.
A regulation adopted by the selectmen of a town, fixing the speed limit for automo- biles and motor cycles throughout such town "in fire district, eight miles per hour; outside, fifteen miles per hour," is a special regulation within the mean- ing of St. 1905, c. 366, the statute in force at the time of its adoption, although the limit so fixed coincides with the extreme limit established by such statute, and is unaffected by the enactment of St. 1906, c. 412, § 1, which established a rate of twelve miles in the thickly settled or business part of a city or town, and a rate of twenty miles outside thereof, as the extreme limit of speed.
You state that the Massachusetts Highway Commission re- quests my opinion upon the following facts: —
In 1905 the selectmen of Lenox, acting under the authority of St. 1905, c. 366, passed certain regulations excluding auto- mobiles and motor cycles from specified roads within the town of Lenox, and regulated the speed thereof throughout such town as follows: —
DANA MALONE, ATTORNEY-GENERAL. 27
Speed limits: In fire district, eight miles per hour; outside, fifteen miles per hour.
No protest having been made, as provided for in said chapter, the Massachusetts Highway Commission caused to be posted on the roads from which motor vehicles were excluded by local regulation the signs required by the statute, but did nothing in the matter of posting the ways where the regulation specified that the speed limit should be fifteen miles per hour, or the roads within the fire district where the speed limit was set at eight miles per hour, for the reason that the limitation imposed was identical with that fixed as an extreme limit by St. 1903, c. 473, § 8.
St. 1906, c. 412, § 1, established a rate of twelve miles for the thickly settled or business part of a city or town, and a rate of twenty miles outside such thickly settled or business portion, as the extreme limit of speed.
Your letter then proceeds as follows: —
The commissioners are doubtful as to what their duty now is. They are uncertain as to whether the Acts of 1906 nullify what the selectmen in 1905 thought was a special regulation, or whether the fifteen-mile speed mentioned in the regulation, which then agreed with the State law, now becomes a special regulation, under the Acts of 1905, chapter 366.
St. 1905, c. 366, § 1, which so far as quoted is substantially the same as St. 1906, c. 412, § 9, provides that: —
The city council of a city or the board of aldermen of a city having no common council, and the selectmen of a town, may make special regula- tions as to the speed of automobiles and motor cycles and as to the use of such vehicles on particular roads or ways, including their complete exclusion therefrom. . . . Such special regulations shall be posted conspicuously by or under the direction of the Massachusetts highway commission on sign boards at such points as the board may deem neces- sary. . . .
The question submitted must be determined by the definition to be given to the term "special regulation," as used in the provisions of St. 1905, c. 366: —
2S OPINIONS OF THE ATTORNEY-GENERAL.
Sucli special regulation shall be posted conspicuously by or under the direction of the Massachusetts highway commission on sign boards at such points as the board may deem necessary.
I am of opinion that this phrase is to be construed to include all regulations made by any city or town in pursuance of the authority conferred by that statute or by any of its amend- ments. The general regulation is the speed limit established by the statute of the Commonwealth; the special regulation is that established by any city or town under authority of the statute; and in my judgment it is immaterial whether this regulation coincides with the extreme limit established by statute or not. It is, therefore, the duty of the State Highway Commission to post such regulations as are made by cities or towns in accord- ance with the provisions of the statute directing that in cases where no protest is made it shall be the duty of the commission to post the regulation in question conspicuously on sign boards at such points as the Board may deem necessary. It follows that it was the duty of the commission to post these regulations when first passed; and that duty remains unaffected by the provisions of St. 1906, c. 412, which amended the former act by striking out the words "fifteen days," in the nineteenth line, and inserting in place thereof the words "sixty days," but did not otherwise alter the provisions of law.,
I am unable to appreciate the force of the suggestion that by the amending act (St. 1906, c. 412, § 9), which made no change in St. 1905, c. 366, § 1, further than substituting the word "sixty" for the word "fifteen" in the nineteenth line of such section, all by-laws or ordinances relating to or regulating the use of automobiles in force upon June 24, 1906, were rendered null and void.
An amendatory statute is in general to be read into and con- strued as a part of the act amended, and the repetition of pro- visions contained in the earlier act serves only to continue them as parts of the original enactment. See United Hehreio Associa- tion V. BcmJiimol, 130 Mass. 325; McLaughlin v. Newark, 57 N. J. L. 298.
DANA MALONE, ATTORNEY-GENERAL. 29
In the present case it is inconceivable that the Legislature, by an amendment which involves merely the alteration of a single word, should have intended thus indirectly and by im- plication to give a new and more comprehensive meaning to the word "now" as used in that provision, which is merely a repetition of law already existing, — that "no ordinance, by-law or regulation now in force in any city or town . . . shall here- after have any force or effect," or to accomplish so comprehen- sive a result as the repeal of all municipal ordinances or regu- lations upon the subject of automobiles which existed at the date when such amendment became operative.
Your communication contains a further reference to the reg- ulation adopted by the town of Harwich, upon which you sub- mitted an inquiry on Oct. 25, 1906, and which I have duly considered, relative to the authority of a city or town to estab- lish a speed limit applicable to the several divisions of the town, as, for instance, the thickly settled portion of the town and the part without the thickly settled portion. Assuming that in the present case the term "fire district" substantially coincides with the "thickly settled portion of the town," I am of opinion that such regulation is clearly within the authority of the town; and in any event it may be doubted how far there is jurisdiction in the Massachusetts Highway Commission to pass upon the legality or sufficiency of such regulations as adopted by the several cities and towns. In cases where no protest is made or hearing granted, their duty would seem to be simply to cause such rules and regulations to be conspicuously posted at the proper points.
Public Officer — Investigation — Employment of Coun- sel — Expense.
Upon an investigation or hearing of charges preferred against a State official or board by the Governor and the Executive Council, such official or board may not employ counsel at the expense of the Commonwealth.
I have the honor to acknowledge your communication of qI^^^j^^^ March 7, which is as follows:— ^ Mal-chH.
30 OPINIONS OF THE ATTORNEY-GENERAL.
Rewlved, That the opinion of the Attorney-General be requested on tlic following point of law: Whether in case of the investigation of a State official or board or the hearing of charges preferred against same, it is lawful for said official or board to employ counsel at the expense of the Commonwealth.
R. L., c. 7, § 1, reads as follows: —
The attorney general shall appear for the commonwealth, the secretary, the treasurer and receiver general, the auditor of accounts and for state boards and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in w^hich the official acts and doings of said officers are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds; and in such suits and proceedings before any other tribunal when requested by the governor or bj^ the general court or either branch thereof. All such suits and proceedings shall be prosecuted or defended by him or under his direction. ... All legal services required by such officers, boards, commissions and commissioner of pilots for the harbor of Boston in matters relating to their official duties shall be rendered by the attorney general or under his direction.
This statute put an end to the practice which previously had prevailed to some extent among State boards and commissions of employing private counsel in public matters at the expense of the Commonwealth. McQuesten v. Attorney-General, 187 Mass. 185.
R. L., c. 7, § 9, provides that the Attorney-General —
If in his opinion the interests of the commonwealth so require, . . . may, with the approval of the governor and council, employ additional legal assistance.
The entire responsibility, therefore, for suits and proceedings, at all stages of their progress, rests upon the Attorney-General, who may, with your approval, if in his opinion the interests of the Commonwealth require, employ such additional assistance as he may deem necessary.
It has been suggested that it would be improper for the At- torney-General to appear for the officers of a board or commis- sion at an investigation before you, in which their official acts
DANA MALONE, ATTORNEY-GENERAL. 31
and doings were called in question, or to have any direction as to the defence of the same; but it seems that if it would be im- proper for the Attorney-General to appear in such a case, then it would be improper that the money of the Commonwealth should be expended for that purpose, and that such officers should be required to defend themselves without assistance from the Commonwealth. I am therefore of opinion that the officers of such boards and commissions have no right- to employ private counsel at the expense of the Commonwealth in case of an investigation of charges made against them.
Charitable or Benevolent Corporations — Authority to INCREASE Holdings of Real or Personal Property.
Corporations specially chartered for charitable or benevolent purposes may, with- out express legislative authority, increase the amount of real or personal property held by them, in accordance with the provisions of R. L., c. 125, § 8, that any such corporation may hold real and personal estate to an amount not exceeding $1,500,000.
Quaere, as to the effect of R. L., c. 125, § 12, providing that any such corporation formed before July 27, 1874, upon compliance with the requirements of such section, may accept the preceding sections of such chapter, and thereupon "shall have the powers and privileges and shall be subject to the duties and liabilities of corporations formed under said sections."
The committee on mercantile affairs ask my opinion as to xo the com- mittee on whether Senate Bill No. 15 and House Bill No. 320 should be Mercantile
Affairs.
passed, or whether the desired object can be obtained under jjjj.^^^20 general laws. They are similar in character and authorize the holding of additional real and personal estate by the Association for the Relief of Aged and Destitute Women in Salem and the Gwynne Temporary Home for Children. In the case of the former, its status as a charitable corporation has already been considered and established by an opinion of the Attorney- General, dated Feb. 14, 1906, and, so far as appears from the evidence submitted, the Gwynne Temporary Home for Chil- dren is a similar institution, incorporated for a charitable or benevolent purpose. See Chamberlain v. Stearns, 111 Mass. 267; Neic England Theosophical Society v. Boston, 172 Mass. 60. Either of these institutions mav, therefore, without further
OPINIONS OF THE ATTORNEY-GENERAL.
legislation, increase the amount of real or personal property held by it to that specified in section 8 of chapter 125 of the Revised Laws, which is as follows : —
Any corporation organized under general or special laws for any of the purposes mentioned in section two and under sections thirteen to sixteen, inclusive, may hold real and personal estate to an amount not exceeding one million five hundred thousand dollars, which shall be devoted to the purposes set forth in its charter or agreement of association, and it may receive and hold, in trust or otherwise, funds received by gift or bequest to be devoted by it to such purposes.
I am aware of the provisions contained in R. L., c. 125, § 12, providing that a corporation formed before the twenty-seventh day of July in the year 1874, under the provisions of any stat- ute, for any of the purposes mentioned in section 2, may accept the provisions of the preceding sections upon compliance with the requirements of section 12, upon which "such corporation shall have the powers and privileges and be subject to the duties and liabilities of corporations formed under said sections." It does not appear that either of the corporations above referred to, although both were incorporated before 1874, has acted under this section, but I am of opinion that upon consideration of the history of this legislation it cannot be construed to affect them. Gen. Sts., c. 32, which treated of corporations of the character of those under consideration, was repealed by St. 1874, c. .375, which substantially re-enacted its provisions. It seems, however, that the Legislature, fearing that by such repeal the corporate existence of corporations organized under the repealed statute might have been terminated, enacted in St. 1875, c. 49, § 2, a provision which declared that by the act of the preceding year existing corporations were not to be aflfected, and further providing, lest this enactment should be ineffective, that all such corporations, however organized, might be included within the provisions of the later statute upon acceptance thereof in the manner prescribed.
In United Hebrew Association v. Benshimol, 130 Mass. 325, the court held that St. 1875, c. 49, was to be construed as a
DANA MALONE, ATTORNEY-GENERAL. 33
continuance of St. 1874, c. 375, and in nowise affected the ex- istence of corporations previously organized.
It is contended that, as the St. of 1874 contained no reservation, it operated to destroy all corporations created under the provisions of the General Statutes; and that the explanatory declaration in the statute of the next year could not restore their rights. But it is plain that the St. of 1874 was not passed for the purpose of affecting the rights of cor- porations already organized. The repeal of a general corporation law cannot be construed, in the absence of express provisions, as intended to repeal the charters of corporations formed under it, especially where the manifest purpose of the repealing act is to substitute a new law, extending the provisions of the old, and perfecting its details, but not changing its general policy. It is a familiar rule of construction that when statutes are repealed by acts which substantially retain the provisions of the old laws, the latter are held not to have been destroyed or interrupted in their binding force. "In practical operation and effect they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old, and the re-enactment of new ones." Shaw, C. J., in Wright v. Oakley, 5 Met. 400, 406.
Notwithstanding this decision, the section, although enacted for a specific purpose, has been retained upon the statute books.
Its express language purports to give to a corporation acting under its provisions only what such corporation already en- joyed, viz., the powers and privileges and the duties and liabili- ties of corporations organized under the provisions of law previously in force. This they already had, and for that reason I am of opinion that the present question is not in anywase affected by the provisions of section 12. If, hoAvever, any doubt may arise upon this point, it is certainly true that if otherwise entitled to be included under the provisions of chap- ter 125, the acceptance by any society of the provisions of such act, as prescribed in section 12, would entitle such society to all the rights and privileges and subject it to all the duties of that chapter, without action upon the part of the Legislature. In any event, therefore, it would seem that no legislation is neces- sary in the case of the two charitable organizations above referred to.
34
OPINIONS OF THE ATTORNEY-GENERAL.
To the Supor- intenili-nt for tsupprL'iuing the t iypsy and Brown-tail Motha. 1906 March 22.
Gypsy and Brown-tail Moths — Owner of Real Estate — Destruction of Eggs and Nests — Expense — Assessed Value of Lands — Buildings.
The word "lands" as used in St. 1905, c. 381, § 6, providing that where the owner or owners of real estate fail to destroy the eggs, pupse or nests of the gypsy or brown-tail moths, the city or town within which such real estate is situated "shall, subject to the approval of said superintendent, destroy the same, and the amount actually expended thereon, not exceeding one half of one per cent of the assessed valuation of said lands, . . . shall be assessed upon said lands," includes any buildings which may have been erected thereon.
My opinion is requested by you on the construction to be given the portion of paragraph 3 of section 6 of chapter 381, Acts of 1905, which reads as follows: —
If the owner or owners shall fail to destroy such eggs, pupae or nests in accordance with the requirements of the said notice, then the city or town, acting by the public officer or board, . . . shall, subject to the approval of the said superintendent, destroy the same, and the amount actually expended thereon, not exceeding one half of one per cent of the assessed valuation of said lands, as heretofore specified in this section, shall be assessed upon said lands.
You desire to be informed whether the word "lands" as used in this section is to be interpreted as including or excluding the buildings thereon. The following statutes may prove of assist- ance.
R. L., c. 8, § 5, proyides that: —
In construing statutes the following words shall have the meaning herein given, unless a contrary intention clearly appears: —
Eighth, The words "land," "lands" and "real estate" shall include lands, tenements and hereditaments, and all rights thereto and interests therein.
li. L., c. 12, § 3, provides that: —
Real estate for the purpose of taxation shaU include not only all land within the commonwealth but also all buildings and other things erected on or affixed to the same.
DANA MALONE, ATTORNEY-GENERAL. 35
In the language of R. L., c. 8, § 5, above quoted, the words "land," "lands" and "real estate" are apparently used as synonymous, and as including the buildings, inasmuch as the term "hereditament" is defined by Bouvier as —
Things capable of being inherited, be it corporeal or incorporeal, real, personal or mixed, and ijicluding not only lands and everything thereon, but also heirlooms and certain furniture which by custom may descend to the heirs, together with the lands;
and the term "tenement" as —
Everything of a permanent nature which may be holden. House, or homestead. Property held by tenant.
The word "land" has been construed to include under the stat- ute an undivided interest therein held by a tenant in common. Leavitt v. Camhridge, 120 Mass. 157, 159.
From the foregoing statutes and definitions I think it is clear that, in the absence of language, in the act of 1905 indicating clearly a contrary intention, the word "lands" must be taken to include buildings, and the question, therefore, is whether such a contrary intention clearly appears. I am of opinion that not only does no such intention clearly appear, but that it does not appear at all.
The words "as heretofore specified in this section," in the clause under discussion, refer to the earlier provision that "the mayor of every city and the selectmen of every town shall . . . cause a notice to be sent to the owner or owners ... of every parcel of land therein which is infested with said moths." The lands referred to, therefore, are the parcels of land infested with moths; and the term "parcel of land" is the term to be inter- preted. If this is considered to exclude buildings, it would fol- low that no notice need be sent to and no action taken by per- sons whose buildings, but not whose lands, were infested. Such can hardly have been the intention of the Legislature.
Throughout the act the following words descriptive of real estate are used: "estate," "real estate," "real property,"
36 OPINIONS OF THE ATTORNEY-GENERAL.
"land," "property," "private property," "parcel of land," "lands," "premises" and "private estates." They are ap- parently used somewhat indiscriminately, and to interpret the words "lands," in every case, to exclude buildings, would lead to many incongruities. I can see no more reason for so inter- preting it in the clause under discussion with respect to the assessed valuation than in several other places where it appears. Moreover, there seems to be no object in excluding the assess- ment of buildings, under the act, as it is common knowledge that the gypsy moth is very apt to build its nest on buildings as well as on trees. In fact, I am informed by you that clearing buildings of the nests of gypsy moths forms a considerable part of your work.
Had the Legislature intended to distinguish between land, as such, and the buildings thereon, it could easily have done so, for I find among the bills upon this subject presented to the Legislature of 1905, House Bill No. 644, in which a distinction was made between "house lots," "farm land" and "waste land," and which contained the proviso that "no owner shall pay more than one half of one per cent of the assessed value of said house lot, nor more than twenty-five dollars for farm land, nor more than fifty dollars for such work on any one estate in any one calendar year." The report upon this bill was "leave to withdraw," by the committee to which it was referred. The fact that this distinction was not adopted in the bill as finally passed, indicates that the Legislature did not desire to differen- tiate between the various sorts of real estate.
Although it is true that the form prescribed for the use of assessors in assessing taxes (R. L., c. 12, § 58) has separate columns for the description and valuation of buildings and land, and these distinctions are actually made by the assessors, I do not think these facts are material in connection with this stat- ute; for not only is the tax assessed on the real estate as a whole (R. L., c. 12, § 68), but also it has been indicated that the purpose of the classification above referred to is purely statistical. See Hamilton Manufacturing Co. v. Loioell, 185 Mass. 114, at p. 117, where Knowlton, C.J., savs: —
DANA MALONE, ATTORNEY-GENERAL. 37
Land and the buildings upon it are ordinarily parts of the same real estate, and they cannot be separated for the purpose of collecting taxes. Although for statistical purjDoses they are at first valued separately, their aggregate worth, limited by their value in use together, constitutes the valuation of the entire real estate for the purpose of taxation.
I am therefore of opinion that the phrase "not exceeding one half of one per cent of the assessed valuation of said lands, as heretofore specified in this section," should be interpreted to mean the assessed valuation of the lands with the buildings thereon.
Town — School Committee — Authority to draw^ Orders
DIRECTLY on ToWN TREASURY — By-LaW.
The school committee of a town may, in the performance of the duties imposed upon such committee by law, and for the purposes set forth in the statutes, make expenditures which such town is bound to pay, and for the payment thereof may draw orders directly upon the town treasury, notwithstanding a by-law of the town to the effect that the town treasurer shall not pay money upon orders other than orders drawn by the selectmen.
Your letter of March 20 requests my opinion upon the fol- Roard^J*^^*® lowing specified questions: —
Board of Education.
1906 March 22.
1. Is it within the rights of a school committee to ch-av/ orders directly upon the town treasury, without the intervention of the selectmen, for the payment of l)ills contracted for the support of schools, and is the treasurer under obligation to honor such orders ?
2. Does the existence of a town by-law forbidding the treasurer to pay out any money, except upon orders drawn by the selectmen, affect the rights of the school committee in this regard ?
R. L., c. 42, relating to public schools, in section 27 provides that the school committee —
shall have the general charge and superintendence of all the pubUc schools, industrial schools, evening schools and evening high schools.
Section 28 provides that it — shall select and contract with the teachers of the public schools, etc.
38 OPINIONS OF THE ATTORNEY-GENERAL.
Section 34 provides that it — shall direct what books shall be used in the pubhc schools, etc.
Section 35 provides that it —
shaU, at the expense of the town, purchase text books and other school supplies used in the public schools, and, subject to such regulations as to their care and custody as it may prescribe, loan them to the pupils of such schools free of charge, etc.
Section 37 provides that it —
shall, at the expense of the town and in accordance with appropriations therefor previously made, procure apparatus, reference books and other means of illustration.
It will be seen that the powers conferred upon the school committee in any city or town are very broad, and that they may contract with the teachers whom they desire to employ, and by such contract bind the town to pay the compensation determined upon.
So in Batchelder v. the City of Salem, 4 Cush. 599, the court said : —
By this statute, the committee has the power, absolutely and uncon- ditionally, to agree upon the salaries of the teachers. There is no power given to any other men, or body of men, to coQtract with the teachers, and this power is given by the statute, and not by the town or city.
In this case it was held that the school committee might bind the town to pay to the teachers selected the amount of com- pensation agreed upon.
So in Charlestoivn v. Gardner et ah, 98 Mass. 587, it was said that: —
The power given to the school committee to contract with teachers necessarily implies and includes the power to determine their salaries.
So under St. 1826, c. 143, providing that "the school com- mittee of each town shall procure class-books at the expense of the town and to be paid for out of the town treasury," it was
DANA MALONE, ATTORNEY-GENERAL. 39
held in Harhcell v. Littleton, 13 Pick. 229, that the school com- mittee might either buy the books on the credit of the town, or might themselves pay for them, and so make themselves credi- tors of the town.
In view of these cases, which beyond doubt establish the power of a school committee to make expenditures for the pur- poses specified in the statutes and in connection with the duties therein imposed upon them, which the city or town for which they act will be bound to pay, I am of opinion that such com- mittee may draw orders directly upon the town treasury, and that the selectmen have no power or authority in the premises to refuse such orders; and I think this is true notwithstanding that there may be in existence a town by-law which forbids the town treasurer to pay out money upon orders other than orders drawn by the selectmen. Xo by-law which is in contravention of a general statute can be valid (see Commoiuvealth v. Wilkins, 121 Mass. 356); and the clear effect of such a by-law as is re- ferred to would be to limit and circumscribe the statutory powers of the school committee, and, in effect, to make them subordinate to and under the immediate direction of the select- men, — a result not contemplated by the statutes.
Marine Insurance — Automobile — Loss by Collision.
The owner of an automobile may not, under the provisions of R. L., c. 118, § 29, relating to insurance against the perils of the sea and other perils usually insured against by marine insurance, including risks of inland na\'igation and transportation, be insured against loss caused by the collision of such automobile with another object, or against liability for damage caused thereby to other property.
You ask my opinion upon the question whether a "collision Xothe clause" insuring the owner of an automobile, wherebv the commissioner.
° , ' ' 1906
owner is insured against loss to the automobile caused by a -^p"' -• collision with another object, and also against liability for damage caused by the automobile to other property through a colHsion, is permissible in this Commonwealth under a marine policy.
40 OPINIONS OF THE ATTORNEY-GENERAL.
Section 29 of chapter 118 of the Revised Laws provides that a company duly authorized to transact the business of marine insurance may —
insure upon the stock or mutual plan vessels, freights, goods, money, effects, and money lent on bottomrj^ or respondentia, against the perils of the sea and other perils usually insured against by marine insurance, including risks of inland navigation and transportation.
The clause in question in the policy submitted to me is simi- lar to the usual collision clause in marine insurance, but altered to fit the case of an automobile. It provides as follows: —
This policy is extended to cover, whilst not in any conveyance, the risk of loss or damage to the automobile hereby insured, caused by col- lision with another object, whether moving or stationary, excluding always all claims for damage through detention, demurrage or loss of use.
And it is further agreed, that if the automobile hereby insiu-ed shall come in collision with another object, whether moving or stationary, and the assured become liable to pay and shall pay, any sum or sums for damages resulting therefrom to said other object, in such case these assurers will contribute towards the payment of the total amount of said damages, in the proportion that the sum insured under this poUcy bears to the total valuation of the automobile, as stated herein, provided that these assurers shall not in any event be held liable under this agreement for a greater sum than the amount insured under this pohcy.
It is also subject to the condition that there shall be no liability for any damage resulting from collision occurring while the automobile is being operated by any person under eighteen years of age, or in any race or speed test.
On Oct. 8, 1904, the Attorney-General gave an opinion to you to the efl'ect that automobiles might properly be insured under a marine form of policy, but he did not have before him the collision clause which is now brought in question.
Section 29 of chapter 118 of the Revised Laws was first en- acted in the insurance law of 1872 (c. 375, § 1), which provided as follows: —
Any ten or more persons residents of this Commonwealth, who shall have associated themselves together . . . with the intention to con- stitute a corporation for the purpose of transacting the business of
DANA MALONE, ATTORNEY-GENERAL. 41
insurance, either upon the stock or mutual principle, against loss or damage by fire, by hghtning, by tempest, or by the perils of the sea, and other perils usually insured against by marine insurance companies, including risks of inland navigation and transportation, shall become a corporation . . . subject to all the duties, habihties and restrictioas set fcftlh in all general laws which are or may be in force relating to in- surance corporations.
Prior to that time there had been in force Gen. Sts., c. 58, § 32, providing as follows : —
Companies thus organized may insure vessels, freights, goods, money, effects, and money lent on bottomry or respondentia, against the perils of the sea and other perils usually insured against by marine insurance; and dwelling houses and other buildings, merchandise and other personal property, against loss by fire, according to their respective charters.
Section 65 provided that : —
No life insurance company shall issue policies insuring fire or marine risks.
Thus it appears that the phrase "perils usually insured against by marine insurance" is an old one in the statute law of Massachusetts, but that the additional words, "including risks of inland navigation and transportation," were added thereto in 1872. I do not find any case in which the phrase "and other perils usually insured against by marine insurance" has been thoroughly analyzed or discussed, but in Gage v. Tirrell, 9 Allen, 299, 307, it was said as a dictum that: —
Perils of the seas embrace not only inevitable accidents arising from tempests, floods, earthquakes and other dangers happening without the intervention of man, but also those caused by collisions, fires, pirates and other occurrences, to the happening of which human agency directly contributes.
Although this case indicates that perils arising from human agency may be included in the phrase "perils of the seas" when used in an insurance policy, I think that the phrase "other perils usually insured against by marine insurance," when used in the statute, must be considered as referring to the other
42 OPINIONS OF THE ATTORNEY-GENERAL.
perils which are usually stated in marine insurance policies, as the perils from men of war, fire, enemies, pirates, rovers, thieves, jettison, letters of mart and countermart and reprisals, takings at sea, arrests, restraints and detainments of all kings, princes and people, of what nation, condition or quality soever, and barratry of the master and mariners.
The phrase "including risks of inland navigation and trans- portation" was probably added to make clear the right of a marine insurance company to make a policy upon goods imme- diately prior or subsequent to marine shipment when the trans- portation or situation of the goods on land could be considered as part of the marine voyage.
Marshall, in his book on marine insurance, published in 1865 (part I., chapter I., page 2), defines it as follows: —
Marine insurance is that which is applied to maritime commerce, and is made for the protection of persons having an interest in ships or goods on board from the loss or damage which may happen to them from the perils of the sea during a cer+ain voj^age or a fixed period of time.
I am informed by you that it has been customary for a num- ber of years for marine insurance companies to make policies upon property in transit over land, and having no connection with any marine voyage, and also to make policies upon the liability of common carriers to the owners of property carried by them, and upon a number of other sorts of property and liabil- ity having no reference to marine transportation.
In the absence of any judicial determination, however, I do not think that the acts of the insurance companies themselves can be used to enlarge the plain meaning of the words in the statute, which give marine companies the right to make insur- ance covering only the perils of the seas and other perils usually insured against by marine insurance, including risks of inland navigation and transportation.
This construction is strengthened by the fact that R. L., 0. lis, § 29, expressly authorizes companies to be formed for the purpose of effecting eleven kinds of insurance other than marine, of which one is —
DANA M ALONE, ATTORNEY-GENERAL. 43
against loss or damage to property arising from accidents to elevators, bicycles and vehicles, except rolling stock of railways.
The obvious intention of the Legislature was to provide distinct classes of insurance companies for making distinct forms of policies, and it limited the rights of each class of company by providing at the end of the section that: —
No such corporation shall transact any business other than that specified m its charter or agreement of association.
I am of opinion, therefore, that marine insurance companies .n Massachusetts are not authorized to issue policies insuring an lutomobile owner against loss and liability caused by the col- ision of his automobile with another object.
Savings Banks — Legal Investments — Bonds of a Rail- road Corporation having no Completed Roadbed.
K railroad company incorporated in the State of Rhode Island and Providence Plantations, under an act containing the pro\'ision, among others, that if such company fails to complete the location, lay-out and construction of its railroad on or before May 15, 1909, the charter shall be void and of no effect, which has filed its location and acquired by condemnation the land upon which to build its road, but has not otherwise complied with the conditions of its charter, and has constructed no physical railroad, is not a railroad company whose road is located wholly or in part in one of the New England States within the meaning of R. L., c. 113, § 26, cl. 3, par. b, which pro\ddes that savings banks may invest "in the first mortgage bonds of a railroad company incorporated in any of the New England states and whose road is located wholly or in part in the same."
My opinion is requested by you as to whether the Providence To the com-
T\ • ^ /~i • m"^! "I'l • missioners of
ierminal Company is a railroad company within the meaning Savings Banks. )f R. L., c. 113, § 26, cl. 3, par. b. This section provides that Apnu. savings banks may invest : —
In the first mortgage bonds of a railroad company incorporated in any )f the New England states and whose road is located wholly or in part n the same, guaranteed by a railroad company described in the preceding paragraph which is in possession of and is operating its own road.
The New York, New Haven & Hartford Railroad Company s undoubtedly "a railroad described in the preceding para-
44 OPINIONS OF THE ATTORNEY-GENERAL.
graph," and in possession of and operating its own road; so that the only question is whether the Providence Terminal Company is " a railroad company incorporated in one of the New Eng- land states and whose road is located wholly or in part in the same."
The company was chartered by an act of the General Assem- bly of the State of Rhode Island and Providence Plantations, passed April 13, 1904, and entitled "An Act in amendment of and in addition to an act entitled 'An Act to incorporate the New York, Providence and Boston and Old Colony Railroad Terminal Company,' passed by the General Assembly at its May session, A.D. 1891."
Section 1 provides that : —
The name of the New York, Providence and Boston and Old Colony Railroad Terminal Company, created by an act passed at the May session, A.D. 1891, is hereby changed to "The Providence Terminal Company."
Section 3 provides: —
Said company is hereby authorized and empowered to locate, lay out, construct, maintain, and operate, by steani or other power, a railroad of one or more tracks from a connection with the tracks operated by the New York, New Haven and Hartford Raih-oad Company, at some point near the Union Station in the city of Providence, thence crossing over Canal street and North Main street, keeping, at least fifty feet north of the northeasterly corner of North Main street and Thomas street, and at least eighty feet north of the northwesterly corner of Thomas street and Benefit street, and running easterly, by a tunnel and the approaches tliereto, to a point on the westerly bank of the Seekonk river between Red Bridge and Washington Bridge, thence easterly across said Seekonk river to connections with the tracks of the Providence and Worcester Railroad Company and of the Boston and Providence Railroad Corpora- tion, and for this purpose said company may acquire a location not ex- ceeding one hundred feet in width between said points of connection, and as mucli greater width at said points of connection as may be required to make such connections by proper curves and approaches, and said company may construct, maintain, and operate a bridge of one or more tracks across said river, with a suitable draw therein not less than ninety feet in the clear, so as not unnecessarily to obstruct navigation, and subject to the approval of the secretary of war.
DANA M ALONE, ATTORNEY-GENERAL. • 45
Section 5 provides: —
Said company is hereby authorized and empowered to acquire, by condemnation, from time to time, such lands, and such interests and estates in lands, as said company may from time to time take under the authority of this act, in the manner hereinafter provided. . . .
From these sections it appears that the name of the Terminal Company was originally the New York, Providence & Boston & Old Colony Railroad Terminal Company; that it is empowered to locate, lay out, construct, maintain and operate, by steam or other power, a railroad; and to acquire property by condemna- tion. In other words, it is apparently clothed with the rights, and presumably the liabilities, of a public-service railroad corpo- ration. Obviously, it is a railroad company, unless the omission of the word "railroad" from its name prevents its becoming such a corporation. I do not think that this omission has such an effect.
The term "railroad" has been broadly interpreted in other statutes of the Commonwealth. Under St. 1887, c. 270, pro- viding for employers' liability "by reason of the negligence of any person in the service of an employer who has the charge or control of any signal, switch, locomotive engine or train upon a railroad," it has been held that a short-line track built and operated by a city for the sole purpose of transporting gravel from one part of its water works to another was a railroad.
In Coughlan v. Cambridge, 166 Mass. 268, on p. 276, the court said : —
The track was a short and temporary affair, and the use of it and of the locomotive and cars was to continue only for a short time; but we think that it was a railroad within the meaning of the act.
From the powers given the Terminal Company and from the definition given to the term "railroad" in this State, I am of opinion that the company is a railroad within the meaning of the statute relating to savings bank investments.
But section 21 of the act of incorporation of the Providence Terminal Company provides that: —
4G OPINIONS OF THE ATTORNEY-GENERAL.
If said company shall fail to begin the location, lay-out, and con- struction of its said railroad as provided by section 3 of this act on or before IMay 15, A.D. 1906, and complete the same on or before May 15, A.D. 1909, this act shall be void and of no effect, but the right of any person to recover damages by reason of anything theretofore done by said company shall in no wise be impaired.
The location of the railroad has been filed and the necessary- proceedings in court taken, so that it has acquired by con- demnation the land upon which to build the road, and it has issued bonds secured by first mortgage upon its terminals, rail- road and franchise, which are guaranteed by the New York, New Haven & Hartford Railroad Company, but until the road is completed the company has not an indefeasible charter, but merely one that is subject to being rendered void in 1909. I also think that in the phrase "whose road is located wholly or in part in the same," in R. L., c. 113, § 26, cl. 3, par. b, the words "whose road is located" must be interpreted to refer to a physical roadbed completely constructed, and not to a location in the narrow sense of a place dedicated to the easement of the railroad and identified either by being plotted out on a map or by stakes driven in the ground. The purpose of the act itself leads inevitably to this conclusion. That purpose being to limit the field of investment to obligations secured in the most thor- ough manner, it can hardly be fulfilled if the act is so construed as to permit a company, having nothing but a charter and the condemnation of the land upon which to build the road, to mortgage these scanty assets and sell its bonds to savings banks.
Upon the whole, therefore, although the matter is not free from doubt, and might bear a technical construction the other way, I am of opinion that though the Providence Terminal Company is a railroad company within the meaning of the act, Its first mortgage bonds, guaranteed by the New^ York, New Haven & Hartford Railroad Company, are not legal invest- ments for savings banks in Massachusetts, and will not be so until the construction of the roadbed is completed, and then only if it was begun before May 15, 1906, and finished before May 15, 1909.
DANA MALONE, ATTORNEY-GENERAL. 47
Insurance — Rebate — Commission on Policy on Life of Officer or Agent of Company.
R. L., c. 118, § 68, providing in part that no life insurance companj- doing business in this Commonwealth, nor any agent thereof, shall "pay or allow, or offer to pay or allow as inducement to insurance, any rebate of premium payable on the policy, ..." prohibits the allowance by any such company to its agent of any commission on the premium on a policy upon the life of such agent, or the allowance to an officer of such company of any rebate of or commission on the premium on a policy upon the life of such officer.
You ask the two following questions relative to R. L., c. 118, J^^^^, §68:-
1 . If it is a violation of said statute for a life insurance company, duly authorized to transact the business of life insurance in this common- tvealth, to allow its agent a commission on the premium on a policy on his own life ?
2. If it is a violation of said statute for such a company to pay or allow an officer of the company a rebate of or a commission on the premium on a policy on his own life ?
R. L., c. 118, § 68, is as follows: —
No life insurance company doing business in this commonwealth shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and equal expectation of life in the amount or payment of premiums or rates charged for policies of life or endo^vment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes; nor shall any such company or any agent thereof make anj^ contract of insurance, or agreement as to such contract, other than as plainly expressed in the policy issued thereon; nor shall amj such company or agent pay or alloiv, or offer to pay or allow as inducement to insurance, any rebate of premium payable on the policy, or any special favor or ad- vantage in the dividends or other benefit to accrue thereon, or any valuable consideration or inducement not specified in the policy contract of insurance.
The other sections of the statute which bear upon these ques- tions are sections 87, 89 and 111. Section 87 provides: —
Every domestic insurance company shall file with the insurance com- missioner the name and residence of each person it appoints or employs to act as its agent in this commonwealth; and whoever shall assume to
nsurance Commissioner.
1906 April 6.
48 OPINIONS OF THE ATTORNEY-GENERAL.
act as such agent, or, unless a licensed broker, shall in any manner for compensation aid in negotiating contracts of insurance on behalf of such corporation for a person other than himself, prior to the filing of such notice of appointment, shall be subject to the penalties of section one hundred and eleven.
I am of opinion that both questions should be answered in the affirmative. The object of section 68 is, obviously, to prevent any insurant from obtaining in any way, directly or indirectly, an advantage over any other insurant of the same class. The object of section 87 is to permit registered agents and licensed brokers, and no others, to negotiate contracts of insurance for persons other than themselves. I do not think the phrase "for a person other than himself" was meant by the Legislature to be joined with the phrase "in any manner for compensation" in such a way as to indicate that a person could negotiate a con- tract for himself for compensation. The object of the section, as a whole, was, in my opinion, to exempt persons from liability who either negotiate contracts of insurance for themselves or for others, but gratuitously.
I think this interpretation is borne out by the language of section 89, where it is provided that "an officer of a company or a person appointed as its agent for that purpose, or acting without compensation," may negotiate insurance. The words in this section, "or acting without compensation," to make sense must qualify the word "person," i.e., so as to read, "a person appointed as its agent or acting without compensation may," etc. These provisions indicate, to my mind, that it is I)erfectly proper under any circumstances for an officer of a domestic insurance company, or for a person appointed as its agent, or for a duly licensed broker, or for a person acting for himself solely, or for a person acting for others without com- pensation, to negotiate insurance, provided that they do not violate section 68 with respect to giving the person insured some special favor or advantage. The fact that all these per- sons may lawfully negotiate insurance does not give them the right to negotiate insurance in any manner in which the com- pany itself could not negotiate.
DANA MALONE, ATTORNEY-GENERAL. 49
I think it may be assumed that section 68, as well as the other sections above referred to, was enacted at a time when life insurance in Massachusetts was carried on as it is to-day, by the active solicitation of persons to be insured by agents and brokers; and I think it may further be assumed that the Legis- lature knew that the ordinary method of paying for such work was by commissions upon the business done by such agents and brokers.
The question, therefore, narrows itself to this: Is the grant- ing of the customary commission to an agent or an officer of a corporation for securing a policy on his own life a rebate paid or allowed as an inducement to insurance? I am of opinion that it is. It is certainly a rebate paid or allowed, because it is, though in the form of a commission, an allowance to the person insured, given for no services rendered. It can hardly be main- tained that it is a service rendered to persuade one's self to take out insurance in one's own company. I think it is, further, a payment or allowance as an inducement to insurance. To test this, let us suppose that the agent of a company desired insur- ance in a first-class company. If he went to the agent of some other company he would pay the ordinary premium and the other agent would get the commission. If he said to the other agent, "I will insure myself in your company through you if you will insure yourself in my company through me, and we will thereby each get a commission," I believe that such a con- tract would be unlawful under section 68, because it would amount to some special inducement to insurance, paid or offered to each.
Can the agent, then, accomplish this same result by writing his own insurance himself? In other words, can he stand in the dual position of the insurant and the person negotiating the con- tract? I am of opinion that he cannot, and that when he applies to the company for a policy he stands as a would-be insurant ind must be treated as such, and that he cannot be benefited 3y the payment or allowance to him of any sum, whether it is n terms a commission or a rebate. •
50
OPINIONS OF THE ATTORNEY-GENERAL.
To the Boiird of Registration in Pharmacy.
1906 May 9.
Registered Pharmacist — Prescription — Registered Phy- sician — Place of Residence.
a registered pharmacist may, under the pro\'isions of St. 1906, c. 281, fill a prescrip- tion -wTitten by a registered physician practising medicine in the city or town where such registered pharmacist is engaged in business, without regard to the place of residence of such physician.
I am in receipt of your letter of the 7th inst., in which you ask if a registered pharmacist can fill a prescription written by a physician residing in another city or town, under chapter 281 of the Acts of 1906, and I reply that a registered pharmacist may fill such prescription given by a registered physician prac- tising in such city or town, whether he resides there or not.
To the Board of Registration in Pharmacy.
liKW May 2.i.
Board of Registration in Pharmacy — Registered Pharma- cist — Intoxicating Liquor — Sale — Certificate.
a registered pharmacist who holds a certificate issued by the Board of Registration in Pharmacy, under the provisions of R. L., c. 100, § 23, and stating that such pharmacist is a proper person to be entrusted with a license to sell intoxicating liquor, as provided in section 21, such certificate having been issued before the passage of St. 1906, c. 281, authorizing registered pharma- cists to sell without license intoxicating liquor upon prescriptions of registered physicians practising witliin the same city or town, under the conditions set forth in such chapter, must, before taking advantage of the pro\asions of St. 1906, c. 281, receive a new certificate of fitness from such Board.
In your letter dated May 24 you request my opinion upon the following question : —
A certificate having been issued to a registered pharmacist previous to May 1, 1906, in accordance with section 23, chapter 100, and the owner of such certificate having been refused a sixth-class license, can the owner of said certificate sell intoxicating liquor on a physician's prescription in accordance with chapter 281 of the Acts of 1906, without obtaining another certificate applicable to said chapter 281, Acts of 1906?
In reply to your inquiry I beg to say that in my opinion a registered pharmacist who holds a certificate issued in accord- ance with the provisions of section 23 of chapter 100 of the Revised Laws, before St. 1906, c. 281, took eft'ect, and who has
DANA MALONE, ATTORNEY-GENERAL. 51
not received a sixth-class license, is not authorized to sell in- toxicating liquor on a physician's prescription in accordance with chapter 281 of the Acts of 1906 without obtaining another certificate, issued in accordance with the provisions of section 2 of chapter 281 of the Acts of 1906.
Sealer of Weights and Measures — Inspection — Me- chanical Devices for Measuring Value of Commodity w^eighed.
The duty of the Deputy Sealer of Weights and Measures, and of sealers of weights and measures appointed in the several cities and towns under the pro\dsions of R. L., c. 62, § 18, is confined to a determination of the accuracy of such appliances as register weights and dry or liquid measures, and does not require an examination of such mechanical devices as purport to register the value of the commodity weighed or measured.
Your inquiry of June 11 requires my opinion upon the ques- To the
TrG£lS1J TGT
tion whether or not the Sealer of Weights and Measures has and Receiver-
_ General.
authority to seal and test computations "on barrel-shaped j i^oi^^ scales, so called, which register the price of the amount pur- chased as well as the weight in pounds and ounces."
I am advised that the scales in question are known as "com- puting scales," and display the price of the article weighed upon the platform as well as the weight of such article.
R. L., c. 62, § 8, provides for the appointment of a Deputy Sealer of Weights and Measures, whose duty, as determined by section 9, is to "try, adjust and seal the standard w^eights, measures and balances of every city and town at least once in five years. . . . He may also inspect the weights, measures and balances of any person which are used for sealing any goods, wares, merchandise or other commodity, or for public weighing in any city or town, and if he finds them inaccurate he shall forthwith inform the mayor or selectmen, who shall cause the provisions of this chapter to be enforced."
Section 10 provides that the deputy "shall keep a record in detail of the places visited, and of the weights, measures and balances tested bv him. ..."
52 OPINIONS OF THE ATTORNEY-GENERAL.
A consideration of the provisions of this chapter and of the duties imposed upon the Deputy Sealer of Weights and Meas- ures, as well as upon sealers of weights and measures appointed in the various cities or towns in accordance with the require- ments of such statute, shows conclusively that the responsi- bility of such officers is confined to the determination of the accuracy of appliances for registering weights and measures as enumerated in section 6 relating exclusively to quantity, and that there is no authority to permit the trial, adjustment and sealing of such appliances as register the pecuniary value of any article weighed.
The duty and responsibility of the officers in the premises are, therefore, to determine only the accuracy of such appliances as register weights and dry or liquid measures, and do not extend to such mechanical devices as purport to register the value of the commodity weighed.
Explosives — Storage — " Building " — Iron Tank for KEEPING Gasolene.
The word "building" as used in St. 1904, c. 370, § 3, as amended by St. 1905, c. 280, providing that no building shall be erected or used in any city or town for the keeping, storage, manufacture or sale of gunpowder and certain other explosives without a license from the mayor and aldermen of a city or the selectmen of a town, a permit from the Chief 6f the District Police, or some person designated by him, applies to and includes an iron tank, closed except by pipe connections, and placed upon an uncovered brick foundation, designed and intended as a "container" of gasolene, and would apply to and include such a structure, even if under ground, from which the liquid is taken by means of a pump.
M'u^-!^i.u.-.otu Heplying to your letter of the 12th, in which you ask for my i;.>urHt I'oi.w... opinioi^ j^g ^Q whether the word "building," as used in section 3 Junejo. ^j. ^^j^^p^gj. 3yQ ^f ^^^ p^^^^ ^j ^g^^^^ ^^ amended by chapter 280
of the Acts of 1905, applies to or includes an iron tank closed except by pipe connections and placed upon a brick foundation uncovered, and intended as a "container" for gasolene to be kept for sale, I have to say that in my opinion it does so apply. Considering the nature of the articles to be stored, namely, crude petroleum or any of its products, or other inflammable
DANA MALONE, ATTORNEY-GENERAL. 53
fluids, and the likelihood that they would be stored in a tank, so called, I think the Legislature intended to include such a structure in the word "building;" otherwise, a structure of any size might be erected for the purpose of the storage of petroleum or other inflammable fluids, without any regulations applying thereto.
I am also of opinion that the word "building" would cover a tank similarly constructed, for a similar purpose, if under- ground, and the liquid pumped therefrom.
Railroad Corporations — Acquisition and Control of Stock and Bonds of Domestic Street Railway Com- panies — Control of Domestic Street Railway Com- panies — Leasing — Forfeiture of Charter.
House Bill No. 1358, providing in section 1 that "it shall be unlawful for a railroad corporation operating a railroad in this Commonwealth to acquire, own or hold, directly or indirectly, the stock or bonds of any street railway company having a location in any city or town in this Commonwealth, or to lease the franchise and property of any such street railway," and in section 2, that "upon petition of the attorney-general of the Commonwealth to the supreme court in equity ... a receiver shall be appointed who shall take possession and control of the property of any street railway" included in section 1, with further provision in section 4 for forfeiture of the charter of such company, after due notice and hearing, is ineffective to prevent the pur- chase of the stock of a domestic street railway by a railroad corporation chartered in another State and duly authorized thereto bj' the laws of that State.
Such bill prohibits the leasing of the franchise of a domestic street railway company by a railroad corporation operating a. steam railroad within the Common- wealth.
By reason of the provision for the dissolution of the charter of a domestic street railway company if its stock or bonds are owned or controlled, directly or indirectly, by a railroad corporation operating a steam railroad within the Commonwealth, such bill would prevent such acquisition and control.
I have the honor to acknowledge the receipt of an order to the House adopted by the House of Representatives on the nineteenth sentativts. day of June, requiring the opinion of the Attorney-General June 21. upon certain questions regarding House Bill Xo. 1358, entitled "An Act relative to Investments by Railroad Corporations in Street Railway Companies."
54 OPINIONS OF THE ATTORNEY-GENERAL.
The bill submitted to me is in form as follows: —
Sectiox 1. It shall be unlawful for a raih-oad corporation operating a raihoad in this Commonwealth to acquire, own or hold, du-ectly or indirccth', the stock or bonds of anj^ street railway company having a location in any city or town in this Commonwealth, or to lease the fran- chise and property of any such street railway company, or to become an associate in the formation of a company for the purpose of constructing, operating and maintaining such a street railway.
Section 2. Any railroad corporation operating a railroad in this Commonwealth which now owns, directly or indirectly, stocks or bonds of a street railway company having a location in any city or town in this Commonwealth is hereby requested to sell and dispose of said stock or bonds within one year from the time this bill becomes a law.
Section 3. Upon the petition of the attorney-general of the Com- monwealth to the supreme court in equity and such notice as said court may order to parties in interest, a receiver shall be appointed who shall take possession and control of the propertj^ of anj^ street railway company having a location in a city or town in this Commonwealth the capital stock or bonds of which are beUeved to be owned or controlled by any railroad corporation operating a railroad in this Commonwealth.
Section 4. After a hearing upon said petition, if the court shall find that the capital stock or any part thereof or bonds or any part thereof of any street railway company having a location in the Commonwealth is held directly or indirectly by any railroad corporation operating a railroad in the Commonwealth, or that the franchise of any street railway company is held by lease by any railroad corporation operating a railroad in this Commonwealth, the court shall enter a decree that the charter and franchise of such street railway company are forfeited and that its offices be closed, and shall direct said receiver to sell and dispose of the property and franchise of said street railway company and apply the funds received from such sale to the payment of debts and liabilities of such street railway company in accordance with the provisions of the statutes of the Commonwealth appUcable to insolvent debtors.
Section 5. After the payment of debts and habilities of such street railway company and the payment of expenses of said receivership the remaining surplus, if any there be, shall be ordered to be distributed as a dividend to stockholders of said street railway company.
Section 6. This act shall take effect upon its passage.
The first inquiry presented by the honorable House of Repre- sentatives is "whether the bill annexed is legally sufficient to prevent the purchase of the stock of street railway companies
DANA MALONE, ATTORNEY-GENERAL. 55
having a location in this Commonwealth by railroad corpora- tions operating steam railroads in this Commonwealth."
Section 1 of the bill in terms forbids the purchase by a rail- road corporation operating a steam railroad within the Com- monwealth of the stock of any street railway company having a location therein. It is, however, to be observed that in the case of a railroad corporation chartered by this Commonwealth such acquisition of stock is already prohibited by the provision of R. L., c. Ill, § 77, that: —
No railroad corporation, unless authorized by the general court or by the provisions of the following five sections, shall directly or indirectly subscribe for, take or hold the stock or bonds of or guarantee the bonds or dividends of any other corporation;
but it is doubtful if either of these statutes can effectually pre- vent a transaction of the character described when such trans- action is the act of a corporation chartered in another State, and done in and under the lawful authority of that State. If, therefore, House Bill No. 1358 is to be construed as applicable as well to corporations chartered elsew^here as to those chartered by the Commonwealth, in my opinion it is ineffective to prevent the purchase of the stock of a domestic street railway company by a railroad corporation chartered in another State and duly authorized thereto by the laws of that State.
To the second inquiry of the honorable House of Representa- tives, "whether the bill annexed is legally sufficient to prevent the leasing of the franchise of street railways having a location in any city or town in this Commonwealth by railroad corpora- tions operating steam railroads in this Commonwealth," I reply that the bill prohibits the leasing of the franchises of domestic street railways by railroad corporations operating steam rail- roads wuthin the Commonwealth, but I ought to say that the leasing of the franchise of a domestic street railway company by a railroad corporation is now, in my opinion, without au- thority in law.
In the third inquiry of the honorable House of Representa- tives my opinion is sought upon the question "whether the bill
56 OPINIONS OF THE ATTORNEY-GENERAL.
annexed prevents the control, directly or indirectly, of street railways having a location in any city or town in this Common- wealth by railroad corporations operating steam railroads in this Commonwealth." I am of opinion that by reason of the provisions contained in sections 3 and 4, providing for the dis- solution of a domestic street railway corporation w^henever the stock of such corporation or any part thereof shall be found to be directly or indirectly owned or controlled by a railroad cor- poration operating a steam railroad within the Commonwealth, the proposed bill would prevent such ownership and control.
The fourth inquiry is as follows: "If in the opinion of the Attorney-General the bill annexed fails to prevent the ownership of the stock of said street railway companies, or the leasing of the franchise of said street railway companies, and, in short, the control, directly or indirectly, of said street railway com- panies by railroad corporations operating street railways in ■ this Commonwealth, what amendments he would suggest to ac- complish the end which this bill is intended to accomplish."
As already pointed out. House Bill No. 1358, if passed, w^ould probably prevent the ownership of the stock of street railway companies, but the form of the same can be improved, and I have the honor to advise the honorable House of Representa- tives that in my opinion the substance and purpose of the same can be accomplished so far as may be by the passage of an act in substance as follows: —
If a foreign corporation acquires, owns or controls, directly or indirectly, capital stock, bonds or other evidences of indebtedness of any domestic street railway company having a location in any city or town in this Commonwealth, unless authorized so to do by the laws of this Common- weahh, the supreme judicial court shall have jurisdiction in equity in its discretion to dissolve such domestic street railway company, and the attorney-general shall institute proceedings for such dissolution and for the proper disposition of the assets of such company.
DANA MALONE, ATTORNEY-GENERAL. 5^
Cities or Towns — Massachusetts Hospital for Feeble- minded — Liability for Support of Inmates — Notice.
R. L., c. 85, § 20, providing that "a city or town in which an inmate of the state hospital is found to have a legal settlement shall be liable to the common- wealth in like manner as one town is liable to another in like cases," does not limit the liability of such city or town to a period of three months next preceding the date of notice, as is the case between towns under R. L., c. 81, § 17, and such liability is not affected by want of notice.
You request mv opinion upon the claim made by the Com- To the Super-
"^ p ' t 0 t "^ P intendent of
monwealth against the town of Winthrop for the support of state Aduit
Catherine F. Ryan, who was committed to the School for the Feeble-minded on March 12, 1905, by a Suffolk court. You say that there was some difficulty in obtaining her history, and that you were not justified in claiming settlement in the town of Winthrop until Nov. 22, 1905. Denial of settlement was made December 4, and, later, settlement was acknowledged and the school sent a bill to the town, which covered the whole period from the date of commitment, March 12, 1905. The town of Winthrop has taken the position that, under R. L., c. 85, § 20, it is not responsible for the charges for a period more than three months prior to the first notice given to it, which was on Nov. 22, 1905. The question is whether this contention of the town is sound.
The provision under which towns are liable for the support of settled inmates of the Massachusetts School for the Feeble-minded is found in R. L., c. 87, § 120, which provides as follows: —
The charges for the support of each inmate in the custodial department of said school shall be three dollars and twenty-five cents a week, and shall be paid quarterly. Such charges for those not having known settle- ments in the commonwealth shall, after approval by the state board of insanity, be paid by the commonwealth, and may afterward be recovered by the treasurer and receiver general of such inmates, if of sufficient ability, or of any person or kindred bound by law to maintain them, or of the place of their settlement, if subsequent!}' ascertained. . . .
The facts of this case bring it directly within this provision of law. This is in effect similar to the section for the recovery
190(5 July 18.
5S OPINIONS OF THE ATTORNEY-GENERAL.
of the charges for the support of insane persons in the various insane hospitals, which is found in R. L., c. 87, § 78. In neither of these sections is there any suggestion that the provision of 11. L., c. 81, § 17, that as between towms the time for which re- covery may be had is Umited to three months next preceding the date of notice, are appHcable to the Commonwealth.
The section upon which the town relies is R. L., c. 85, § 20, which is as follows: —
A city or town in which an inmate of the state hospital is found to have a legal settlement shall be liable to the commonwealth for bis support in like manner as one town is hable to another in hke cases; and, in such case, the state board of charity shall adopt such measures relative to notice, removal of a pauper and recovery of expenses as are prescribed for towns in like cases.
This provision refers to the charges for the support of paupers at the State hospitals, and has no reference whatsoever to the charges for the support at the insane hospitals or at the school for the feeble-minded.
The case of Adams v. The Inhabitants of IjJswich, 116 Mass. 570, is conclusive of the present question. That was a case in which the Treasurer of the Commonwealth brought suit for the support of an insane pauper committed to the Northampton Lunatic Hospital. The town set up the defence that there had been no notice to it under the statute. ' The court said : —
The right of recovery in behalf of the commonwealth is not governed by the provisions regulating claims between different towns. It is not limited by reason of want of notice.
At this time the provisions of G. S., c. 71, § 49, were in force, and were in effect the same as R. L., c. 85, § 20, upon which the town of Winthrop relies now.
Consequently, there can be no question but that the town is liable for the full amount claimed from the date of commitment.
DANA MALONE, ATTORNEY-GENERAL. 59
Massachusetts Highway Commission — Telegraph, Tele- phone AND Electric Light Poles — Original Locations.
The Massachusetts Highway Commission have no jurisdiction to grant original locations for telephone, telegraph or electric light poles independently of the local board, which, under the provisions of St. 1906, c. 117, are constituted the tribunals for that purpose.
The Massachusetts Highway Commission request my opinion To the
. p • Massachusetts
upon the question of their jurisdiction in the matter of granting g^^way_^^ locations for Hues of telephone, telegraph or electric light poles j^^^\^ on State highways.
R. L., c. 122, § 2, as amended by Acts of 1903, c. 237, and Acts of 1906, c. 117, is as follows: —
The mayor and aldermen of a city or the selectmen of a town thi'ough which the lines of a company are to pass shall give the company a writing specifying where the poles may be located, the kind of poles, the height at which, and the places where, the wires may run. Any company, except street railway companies, desiring permission to erect poles, piers, abutments or other fixtures upon or along any public way shall, in writing, petition the said mayor and aldermen or selectmen therefor. A public hearing shall be held on such petition, and written notices of the time and place at which such hearing will be held shall be mailed at least tlu-ee days before said hearing, by the clerk of the city or the selectmen of the town in which the petition for locations has been made, to the owners of real estate along the ways or parts of ways upon which it is proposed to construct said line, as determined by the last preceding assessment for taxation. The clerk of the city or the selectmen of the town shall endorse upon the order or specification of locations granted, his or their certificate that notices were sent and a hearing held as herein provided, and no such order or specification shall be valid without such certificate. After the erection of the lines the mayor and aldermen or selectmen may, after giving the company or its agents an opportunity to be heard, or upon petition of the companj- without hearing or notice, direct any alteration in the location or erection of the poles, piers or abutments, and in the height of the wires ; and no permit shall be required for renewing, repair- ing or replacing poles, piers, abutments or other fixtures once erected under the provisions of law. Such certificates, specifications and decisions shall be recorded in the records of the city or town.
R. L., c. 47, which relates to State highways, contains no spe- cific provision dealing with the location of telegraph, telephone
60 OPINIONS OF THE ATTORNEY-GENERAL.
or electric light i)oles on State highways. There are two sec- tions which refer to the jurisdiction of the State Highway Com- mission, sections 11 and 21. Section 11 provides: —
Said commission shall keep all state highwaj^s reasonably clear of brush, shall cause suitable shade trees to be planted thereon if practicable, and may establish and maintain watering troughs upon said highways. No opening shall be made in any such highway nor shall any structure be placed thereon, nor shall any structure which has been placed thereon be changed or renewed, except in accordance with a permit from the commission, which shall exercise complete and permanent control over such highways.
Section 21 provides: —
No state highway shall be dug up for laying or placing pipes, sewers, poles, wires or railways or for other purposes, and no tree shall be planted or removed or obstruction placed thereon, without the written permit of the highway commission, and then only in accordance with the regula- tions of said commission; and the work shall be done under the super- vision and to the satisfaction of said commission, and the entire ex])ense of replacing the liighway in as good condition as before shall be paid by the persons to whom the permit was given or by whom the work was done; but a city or town may dig up such state highway without such approval of the highway commission in case of immediate necessity; but in such cases it shall be forthwith replaced in as good condition as before at the expense of the city or town. Said commission shall give suitable names to the state highways, and may change the name of any way which becomes a part of a state highway. They shall erect suitable guide posts at convenient points along state highways.
In a brief filed by counsel for the telegraph company, and annexed to the communication submitted by the State Highway Commission, it is contended that the use of the words "shall exercise complete and permanent control over such highways" is sufficient to vest in the commission the right and power to grant locations for telegraph or telephone poles upon State high- ways, independently of any action upon the part of the mayor and aldermen in the case of cities or of boards of selectmen in the case of towns.
DANA MALONE, ATTORNEY-GENERAL. 61
I am of opinion, however, that a consideration of section 21, above quoted, shows conclusively that such was not the purpose of the Legislature and is not the effect of section 11. Section 21 clearly contemplates that the State Highway Commission, in the matter of the placing of pipes, sewers, poles or wires, shall act only in a supervisory capacity, and shall have no authority to grant original locations for telegraph or telephone poles inde- pendently of the local boards which are constituted the tri- bunals for that purpose under the provisions of St. 1906, c. 117. (See, also, 1 Op. Atty.-Gen. 317.) It follows, therefore, that the Massachusetts Highway Commission have no authority or jurisdiction to grant original locations for telephone, telegraph or electric light poles.
Hours of Labor — Insane Hospital — Day's Work — Half-holiday — Sunday Employment — Work by the Hour — Appropriations.
St. 1906, c. 517, § 1, providing, in part, that "eight hours shall constitute a day's work for all laborers, workmen and mechanics now or hereafter employed by the Commonwealth, . . . but in cases where a Saturday half-holiday is given the hours of labor upon the other working days of the week may be increased sufficiently to make a total of forty-eight hours for the week's work," does not require a nine-hour wage, and does not prohibit the employment of laborers, workmen and mechanics by the Commonwealth for more than eight hours a day, when the contract for such employment is by the hour.
Such statute provides for an eight-hour day upon Sunday as well as upon other days of the week for persons properly employed upon that day, and does not restrict the employment of persons required to work seven days a week to forty-eight hours.
If a half-holiday is given, it must be a Saturday half-holiday.
If the appropriations for the maintenance of the Worcester Insane Hospital are fixed for the year, the trustees of such hospital are not authorized to exceed the same to comply with the provisions of such chapter.
In your letter dated July 25, you state that the trustees of '^°^^^ Trustees the Worcester Insane Hospital desire my opinion in regard J^^o''<=e3ter to certain aspects of the so-called eight-hour law, passed at the last session of the Legislature.
This act is chapter 517 of the Acts of 1906, and provides in its first section that : —
Hospital.
1906 July 26.
(^2 OPINIONS OF THE ATTORNEY-GENERAL.
Eight hours shall constitute a day's work for all laborers, workmen and mechanics now or hereafter employed, by or on behalf of the Com- monwealth, or of any county therein, or of any city or town which has accepted the provisions of section twenty of chapter one hundred and six of the Revised Laws; but in cases where a Saturday half -holiday is given the hours of labor upon the other working days of the week may be increased sufficiently to make a total of forty-eight hours for the week's work.
To your questions I reply as follows : —
1. Does the eight-hour law carry with it a nine-hour wage? It does not require a nine-hour wage.
2. Can laborers, workmen and mechanics in State institu- tions work more than eight hours per day, and if so, under what conditions?
In my opinion, laborers, workmen and mechanics working in State institutions may, if employed by State officials by the hour, work more than eight hours a day. St. 1906, c. 517, § 1, is similar in terms to the federal act of June 25, 1868 (15 Stat. 77), Rev. Sts., § 3738, which provides that "eight hours shall constitute a day's work for all laborers, workmen and mechanics who may be employed by or on behalf of the government of the United States."
In the case of United States v. Martin, 94 U. S. 400, the United States Supreme Court had this act under consideration, and, speaking by Mr. Justice Hunt, said: —
This was a direction by Congress to the officers and agents of the United States, establishing the principle to be observed in the labor of those engaged in its service. It prescribed the length of time which should amount to a day's work, when no special agreement was made upon the subject. There are several things which the act does not regu- late, which it may be worth while to notice.
First. — It does not establish the price to be paid for a day's work. . . .
Second. — The statute does not provide that the employer and the laborer may not agree with each other as to what time shall constitute a day's work. . . .
We regard the statute chiefly as in the nature of a direction from a principal to liis agent, that eight hours is deemed to be a proper length of time for a day's labor, and that his contracts shall be based upon that theory. . . .
DANA MALONE, ATTORNEY-GENERAL. 63
It is to be noticed that since this decision an act has been .passed (Act of Aug. 1, 1892, chapter 352, 27 Stat. 340) relating ito hours of labor of laborers and mechanics employed upon public works of the United States and of the District of Colum- bia, which expressly provides that it shall be unlawful to require or permit a laborer or mechanic to work more than eight hours in any calendar day.
The ISIassachusetts statute regulating the hours of labor has been construed by two of my predecessors. St. 1890, c. 375, provided that: —
Nine hours shall constitute a day's work for all laborers, workmen and mechanics now employed or who may be emploj^ed bj^ or on behalf of the Commonwealth of Massachusetts or any city or town therein; and all acts and parts of acts inconsistent with this act are hcrebj^ repealed.
On April 24, 1891, the Hon. Albert E. Pillsbury (1 Op. Atty.- Gen. 10), then Attorney-General, advised the Governor that this statute did not prohibit the employment of labor in State institutions for more than nine hours a day, if such labor was contracted for and paid for by the hour.
By St. 1891, c. 350, this act was amended so as to apply to counties. By St. 1893, c. 406, it was provided : —
All contracts hereafter made by or on behalf of the Commonwealth requiring the emplojTiient of manual labor shall provide that persons employed in the performance of such labor under any such contract shall not be required to work more than nine hours in each daj'', and that said nine hours shall constitute a day's work.
In St. 1894, c. 508, §§ 7 and 8, the provisions of St. 1890, c. 375, as amended, and St. 1893, c. 406, were substantially re-enacted. This act also provided a penalty for the violation of its provisions.
St. 1899, c. 344, § 1, provided that eight hours should con- stitute a day's work for laborers, workmen and mechanics em- ployed by a city or town, and section 3 of that chapter, amended by St. 1900, c. 357, provided that this act should take effect only upon its acceptance by the city or town.
04 OPINIONS OF THE ATTORNEY-GENERAL.
On ]\Iay 14, 1900, the Hon. Hosea M. Knowlton, then Attor- ney-General, in an opinion, said: —
St. 1894, c. 508, § 7, which provides that "Nine hours shall coastitute a day's work for all laborers," etc., refers only to employment by the day. It does not and is not intended to prohibit the employment of labor by the horn-, if the laborer is willing to be so employed.
If a laborer is told that he can only be employed upon his agreement to work more than nine hours per day at a given rate per hour, and accepts the employment upon such terms, such employment is an evasion of the law, but not, in my judgment, a violation of it. Being a penal law, it is to be construed strictly. A person so employed, however powerful the inducement, is, nevertheless, in contemplation of law, working voluntarDy, and the case, so for as the statute is concerned, is the same as though no such threat were held out to him. Emploj^ment by the horn* is not within the statute,
St. 1894, e. 508, §§ 7 and 8, and St. 1899, c. 344, as amended, appear as R. L., c. 106, §§ 19, 20 and 21, without substantial changes, and the same chapter contains a provision for penalty.
The present statute reduces the number of hours in a day's work for the Commonwealth or a county from nine to eight, with a provision that the number of hours may be increased if a Saturday half-holiday is given; otherwise, however, the law is not materially changed, and the statements quoted above from the opinion of my predecessor are, it se^ms to me, applicable to the law as it now stands, if the word "eight" be substituted for the word "nine."
3. What application has the act to laborers, workmen and mechanics whose duties ordinarily call for Sunday work?
The statute provides for an eight-hour day on Sunday as well as on other days of the week for persons properly employed on that day as well as on other days of the week.
4. In cases where the ordinary duties of laborers, workmen and mechanics require them to work seven days a week, does the law restrict their employment to a total of forty-eight hours, or does fifty-six hours in such cases constitute a week's work?
The law does not restrict the employment of persons required to work seven days a week to a total of forty-eight hours.
DANA MALONE, ATTORNEY-GENERAL. 65
5. If a half-holiday is given, must it be a Saturday half- holiday?
Yes; if the half day is to be made up on other working days.
6. If the appropriations for the maintenance of institutions ire fixed for the year, shall we be warranted in overrunning the 5ame to comply with the provisions of the eight-hour law?
No.
jOVErxor — Registered Bonds of the Commonwealth — Signature — Rubber Stamp.
The Governor may afl&x his signature to registered bonds issued by the Common- wealth by means of a rubber stamp, provided such stamp is retained in his possession and applied by him, or, in his presence, by some one authorized by him to make such application.
Replying to your letter of the 23d, in which you ask my To the •pinion as to whether His Excellency the Governor can affix and Receiver-
. CJeneral.
ns name bv a rubber stamp to registered bonds issued bv the , i^oe
. , ''' July 31.
]'ommonwealth, or whether it is necessary for him to personally
ign with his own hand, I have to say that in my opinion he aay impress his name with a stamp instead of a pen, provided le keep the same in his possession and apply it himself or cause t to be applied in his presence. The Attorney-General of the Jnited States, in an opinion (1 Op, Atty.-Gen. 670) to the ^resident in reply to a similar question, decided "that the doption and acknowledgment of a signature written by an- 'ther makes it a man's own; that there will be great difficulty a maintaining the proposition as a legal one, that when the aw required signing it means that it must be done with pen and nk; that a signature made with straw dipped in blood would •e equally valid and obligatory; he may write his name in full r may write his initials or may print his initials with a pen; hat pen may be made of a goose quill or of metal; and I see no igal objection to its being made in the form of a stamp or opper-plate. It is still his act; it flows from his assent, and is he evidence of that assent."
66 OPINIONS OF THE ATTOENEY-GENERAL.
Taxation — Exemption — "Farming Utensils" — Person.
Under the provisions of R. L., c. 12, § 5, cl. 11, exempting from taxation among, other specified articles of property, the "farming utensils of every person," such exemption should in general be confined to implements, tools and utensils used by any person in the pursuit of agriculture.
As used in such statute, the word "person" does not include a corporation.
c°rumi'^'n r R^plyi^g to vouF Tcquest foF ail Opinion as to exemption septei^ber 28. ^TOTD. taxation bv local assessors of farming utensils of every person, under R. L., c. 12, § 5, el. 11, a list of articles which have in some instances been construed as exempt having been furnished me, I am of opinion that you should adopt a some- what arbitrary rule. Iii my opinion the following would be exempt : —
All hand tools for farming.
Plow, including "Riding Plow."
Harrow.
Cultivator.
Planter, geared and otherwise.
Mowdng machine.
Tedder.
Horse rake.
Reaper, including reaper and binder.
Potato digger.
Ensilage cutter.
Spray pump, also tank. ,
Churn.
Wagon, where used principally for farm purposes.
Cart, where used principally for farm purposes.
Sled, where used principally for farm purposes.
Chains.
Manure spreader.
Upon the other hand, the following would not be exempt: —
Windmill, including pump.
Boiler (steam), also cooker.
Engine (steam), (gas), (portable), (stationary), (traction).
Power saw (for fire wood).
Fruit evaporator.
Cider mill and press.
DANA M ALONE, ATTORNEY-GENERAL.
Incubator.
Cream separator.
Cream cooler.
Honey extractor (centrifugal) .
Carriage.
Wagon (other than farm wagon).
Cart (other than farm cart) .
Sled (other than farm sled) .
Sleigh.
Pung.
Harness (blankets, whips, robes).
I am of opinion that the word "person" as used in this statute does not include a corporation.
I find several decisions which hold that a wagon is a farm utensil; also, under 20 Kan. 555, that a McCormick Advance reaper and mower is a farming utensil.
It is difficult to define what would or would not be exempt, on principle, but it would seem that exemptions should be con- fined to the farming utensils, meaning all those implements, tools and utensils used in the pursuit of agriculture and husbandry.
Pauper Law — Settlement — Effect of Retroactive Stat- ute UPON Derivative Settlement.
Where the derivative settlement of a mother which was not fully acquired sub- sequent to May 1, 1860, and did not prevent the subsequent acquisition of a settlement in the same place, was defeated and lost by the retroactive pro- vision of R. L., c. 80, § 6, the settlement of a daughter derived from that of the mother subsequent to May 1, 1860, is not lost or affected by the loss of the settlement of the mother.
Replying to your request for an opinion as to whether the To the settlement of Amelia F. West was affected bv the provisions of charity, ot section 6 of chapter 80 of the Revised Laws, the material September 28. facts are as follows : —
Amelia F. West, born Dec. 25, 1862, at Tisbury, Mass., ille- gitimate, was committed to the Massachusetts School for Idiotic and Feeble-minded Youth Sept. 23, 1875, and has been
68 OPINIONS OF THE ATTORN-EY-GEN-ERAL.
an inmate of that institution since that time as a charge to the town of Tisbury. Her mother. Mary F. "West, was born in 1S20 in Richmond. Va.. and came to Tisbury, Mass., when a child, and Uved in that town continuously until her death, Oct. 17, 1894. She was married in Tisbury, Jan. 27, 1840, to Edward F. West, and Uved with him until his death, June 7, 1854. Mary F. West did not, as the widow of said Edward F. West, after ]May 1, 1S60, Uve any period of five years without receiv- ing relief as a pauper.
R. L., c. 80, § 6 (St. 1898, c. 425, § 2), is as follows: —
Any settlement which was not fully acquired subsequent to the first day of May in the year eighteen hundred and sixty is hereby defeated and lost, unless such settlement prevented a subsequent acquisition of settlement in the same place; but if a settlement acquired by marriage is so defeated, the former settlement of the wife, if not also so defeated, shall be ^e^'ived. A person who is absent from the commonwealth for ten consecutive years shall lose his settlement.
From these facts it appears that Mary F. West had, on Dec. 25, 1862, a settlement in Tisbury derived from her husband, Edward F. West. This settlement was not fully acquired subse- quent to May 1, 1860. The existence of it did not prevent a subsequent acquisition of a settlement by ^lary F. ^^ est, for she has not since that time lived any period of five years in that town without ^ecei^*ing relief as a pauper. Any settlement which she had prior to her marriage was not acquired subse- quent to May 1, 1860, she having married Edward F. West in 1840. It follows that by the operation of Acts of 1898, c. 425, § 2 (R. L., c. 80, § 6), the settlement of Mary F. West in Tis- bury was defeated and lost.
The question raised by the present question is whether the settlement of Ameha F. West, which was derived from her mother, was also, by the operation of this statute, defeated and lost.
R. L., c. 80, § 1, cl. .3, provides: —
Illegitimate children shall have the settlement of their mother at the time of their birth if she then has anv within the commonwealth.
I
DANA MALOXE, ATTORNEY-GENERAL. 69
In St. 1793, c. 34, this provision was in the following form: —
Illegitimate children shall follow and have the settlement of their mother at the time of their birth, if any she shall then have, within the Commonwealth. . . .
This statute was interpreted by the court in Boylston v. Prince- ton, 13 Mass. 381. In that case it was said: —
The rule, as now established, is that illegitimate children shall have the settlement of their mother at the time of their birth; meaning, as we apprehend, that the settlement which the mother had at the time of the birth of the child should be the settlement of the child, until it should gain a new settlement b}' its own act.
This is even more clearly the meaning of the statute in its present form; consequently, Amelia F. West, by reason of her birth in the town of Tisbury and by reason of that fact alone, acquired a settlement in that town which was unaffected by any change in the settlement of her mother. The birth taking place after May 1, 1860, the settlement was fully acquired subsequent to that date, and it was consequently not defeated and lost by the operation of St. 1898, c. 425, § 2 (R. L., c. 80, § 6).
Trust Company — Loax to Single Individual — "Surplus."
A trust company, subject to the pro\-isions of R. L., c. 116, § 34, may not legally loan money to a single indhidual in excess of one-fifth of its surplus accounts and paid-up capital, excluding the profit and loss account.
My opinion has been orallv requested bv vou as to whether To the Bank
' ' , Commissioner
the phrase "surplus account," m R. L., c. 116. 5^ .34, shall be ^ ^^
"^ ^ ^ _ "^ October lb.
taken to include or exclude undivided profits. The section is as follows : —
The total habihties of a person, other than cities or towns, for money borrowed, including in the Mabihties of a firm the habihties of its several members, to such corporations ha\'ing a capital stock of five himdred thousand dollars or more shall at no time exceed one-fifth part of the surplus account and of such amount of the capital stock as is actually paid up. . . .
70 OPINIONS OF THE ATTORNEY-GENERAL.
It has been argued that the case of Leather Manufacturers Natiojial Bank v. Treat, 128 Fed. Rep. 262, is in point, but the court expressly recognized in that case the fact that the term "surplus," as used in the nomenclature of banks, does not in- clude undivided profits. On page 264 the court said: —
Undivided profits do not become a part of this fund until they have been assigned to it by some formal act of the institution; and it is for the directors and not for the taxing officers of the govermnent to determine when this should be done.
The decision was to the effect that the capital, for purposes of taxation and within the meaning of the statute, was all the money employed by the institution for banking purposes. On this ground it was held that the undivided profits were capital, and consequently taxable. It is in no sense a decision that the word "surplus" includes the undivided profits. Indeed, the court expressly gives its opinion to the contrary.
In the Massachusetts statute the term used is "surplus ac- count," which evidently indicates a fund set aside under a par- ticular account.
It seems to me clear that a trust company, subject to the pro- visions of section 34, above quoted, cannot lawfully loan money to a single individual in excess of one-fifth of its surplus account and paid-up capital, excluding the profit, and loss account.
Insurance — Fire Insurance — Explosion.
A fire insurance company may not add to its policy a slip or rider, containing an agreement that, in consideration of the payment of an additional premium, the policy shall include loss or damage by fire caused by an explosion upon the insured premises, payment in case of loss to be at the value of the prop- erty before such explosion, since the effect of such policy is to provide insur- ance against loss from explosion.
in°8ur^ncp You ask my opinion as to whether a fire insurance company
'im'""*"^' may attach to the standard form of policv a rider which reads
Novembers. » ,1 jr ^
as toUows: —
In consideration of an additional premium equal to ten per centum of the amount of premium otherwise due on this policy, it is understood
DANA MALONE, ATTORNEY-GENERAL. 71
and agreed, in the event of any explosion on the premises covered, fire ensuing, this company shall pay the loss on the property hereby insured and injured by fire at the value thereof before the explosion, provided, that if there is other concurrent insurance upon the insured property damaged this company shall be liable only for such proportion of the loss or damage as the amount hereby insured bears to the whole amount of insurance thereon, whether such other insurance contains a similar clause or not.
The question is, " Can a fire insurance company insure against loss or damage by explosion when a fire does ensue?" This question, in a slightly different form, was answered in the nega- tive by a former Attorney-General (see 1 Op. Atty.-Gen. 431), and that unquestionably is the law. The rider above quoted, however, attempts to evade this prohibition by purporting to insure loss on property "injured by fire."
Inasmuch as payment in case of loss is to be made at the value of the property "before the explosion," the policy, in effect, insures against the loss arising both from the explosion and from the fire; and from the fact that an additional premium is charged, it is evidently intended to cover loss caused solely by explosion. Such a rider cannot lawfully be issued by a fire insurance company.
City and Town — Debts — Refunding or Renewal.
Under the provisions of R. L., c. 27, § 18, that cities and towns may renew or refund any debts in securities payable within the period fixed by section 11 of such chapter, a note issued by a town to renew or refund a debt incurred for school- house construction, and payable within the required period of twenty years from the date of the original issue, is a valid obligation of such town.
You ask my opinion as to the renewal or refunding of a note To the
Treasurer
issued by the town of Walpole on Nov. 2, 1896, for ten years, and Receiver-
^ *^ _ General.
in payment of a debt incurred for schoolhouse construction, -^^^^^^^ i9 which it was voted to renew for a period not exceeding ten years on March 5, 1906.
Section 11 of chapter 27 of the Revised Laws provides that debts incurred in building schoolhouses and other public buildings, and in procuring land therefor, shall be payable
OPINIONS OF THE ATTORNEY-GENERAL.
within twenty years, that : —
Section 18 of the same chapter provides
Cities and towns may pay, or provide for the payment of, any debts at earlier periods than is required in this chapter; or may renew or refund the same in securities paj^able within the required period.
It has been objected that renewal of this note would not be consistent with the provisions of section 12, which provides that eight per cent, shall be raised annually by taxation to pay the principal of notes payable at a period not exceeding ten years, but I think that section refers to "all other debts mentioned in section eight," and that the provision in section 12, line 3, "in all -other cases may . . . establish a sinking fund," applies to a debt like this, which may run twenty years.
Under the law as it stands, it is my opinion that a note issued to renews or refund a debt, which renewal is payable within the required period of twenty years, is a valid obligation.
To the Board of Recistration in Pharmacy.
I'JOG November 30.
Violation of Pharmacy Law — Plea of Nolo Conten- dere — Conviction and Fine.
A plea of nolo contendere, followed by a fine imposed by the court, is a conviction within the meaning of R. L., c. 76, § 17, providing that the Board of Regis- tration in Pharmacy may suspend the license of a registered pharmacist only "for a cause punishable by law," and "after' his conviction by a court of competent jurisdiction."
You ask my opinion as to whether a plea of nolo contendere^ followed by a fine and payment thereof, constitutes a convic- tion that would justify the Board of Registration in Pharmacy, under section 17 of chapter 76 of the Revised Laws, in suspend- ing a certificate of registration of the party complained of.
R. L., c. 76, § 17, reads as follows: —
If the full board sitting at such hearing finds the person guilty, the board may suspend the effect of the certificate of his registration as a pharmacist for sucli term as the board fixes, but the license or certificate of registration of a registered pharmacist shall not be suspended for a cause punishable by law until after his conviction by a court of competent jurisdiction.
DANA MALONE, ATTORNEY-GENERAL. 73
A record showing a conviction on such a plea is not admis- sible in another proceeding to show that the defendant was guilty. It is the intention of the statute to give a pharmacist charged with a crime the right to a trial in a court having jurisdiction of his offense; but if his guilt be there established, so that the court may impose sentence according to its powers, then it is sufficiently established for the Board of Registration in Pharmacy to act upon their finding and to impose a penalty. Munkley v. Hoyt, 179 Mass. 108. In no way is the judgment of the Board upon the question of the guilt of the party to be affected by the proceedings in another court, as the purpose of the statute is to give the Board power to hold an independent hearing; but while the record is not admissible in another pro- ceeding, there is no doubt that a sentence imposed after a plea of nolo contendere amounts to a conviction in the case in which the plea is entered. White v. Creamer, 175 Mass. 567. That being so, it is my opinion, from the facts stated, that a convic- tion has been had by a court of competent jurisdiction.
State Officers or Boards — "Day's Work" — Contract — Materials or Supplies.
A State officer, board or commission must, under the provisions of St. 1906, c. 517, insert in every contract made by such officer, board or commission in behalf of the Commonwealth, excluding contracts for the purchase of materials or supplies, a clause requiring that no laborer, workman or mechanic employed under such contract shall be required to work more than eight hours in any one calendar day, whether or not such contract is to be executed within the Commonwealth.
The words "materials or supplies" should be construed to include articles to be used in the creation of a mechanical structure, and upon which no work is to be performed under the contract.
Replying to your letter of the 28th, in which the Charles To the charies
n- -rt • /^' • • • 11 River Basin
Liiver Basin Commission requests my opinion as to whether commission. :he commission " must put into every contract for supplies December 12. nade in Massachusetts, and even though of standard charac- :er, such as nails or iron pipe, the following provision: 'No aborer, workman or mechanic in the employ of the contractor, >ub-contractor or other person doing or contracting to do the
OPINIONS OF THE ATTORNEY-GENERAL.
whole or any part of the work contemplated by this contract, shall be required to work more than eight hours in any one calendar day;'" and second, as to "whether the provision above quoted must go into every contract for supplies, where the sup- plies are furnished by a manufacturer whose plant is located outside of the Commonwealth." Section 2 of chapter 517 of the Acts of 1906 provides as follows: —
Every contract, excluding contracts for the purchase of material or supplies- to which the Commonwealth, or of any county therein, . . . is a party which may involve the employment of laborers, workmen or mechanics shall contain a stipulation that no laborer, workman or me- chanic in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be required to work more than eight hours in any one calendar day.
Section 3 provides : —
This act shall apply to all laborers, workmen or mechanics engaged upon any works which are or are intended to be the property of the Commonwealth. . . .
Such provision should therefore be inserted in every contract except contracts for the purchase of materials and supplies, whether the plant of the manufacturer with whom such con- tract is made is located in the Comnionwealth or elsewhere. I think the Legislature intended the words "material or sup- plies" to include articles which are intended to be used in the creation of a mechanical structure and upon which no work is to be done under the contract. Nails and iron pipe would, in my opinion, be material or supplies within the meaning of the statute. 1
DANA MALONE, ATTORNEY-GENERAL. 75
Public or Private Schools — State Normal Schools — Pupils — Street or Elevated Railway Companies — Special Rates.
'upils in State normal schools are not entitled to the benefits of R. L., c. 112, § 72, as amended by St. 1906, c. 479, providing that "the rates of fare charged by street or elevated railway companies for the transportation of pupils of the public or private schools . . . ■ shall not exceed one-half the regular fare ■ charged by such street or elevated railway company for the transportation of other passengers."
The State Board of Education ask my opinion upon the xo the state ollowing question: "Are the pupils in our State normal schools Education. ntitled to the benefits of chapter 479, Acts of 1906?" December i9.
The statute above referred to was first enacted in Acts of 900, chapter 197. This statute was embodied in R. L., c. 112, : 72, which is as follows : —
The rates of fare charged by street or elevated railway companies for he transportation of pupils of the public schools between a given point, rem or to which it is necessary for them to ride in travelling to or from he school houses in which they attend school and their homes, whether uch school houses are located in the city or town in which the pupils aside or in another city or town, shall not exceed one-half the regular are charged by such street or elevated railway company for the trans- ■ortation of other passengers between said points, and tickets for the ransportation of pupils as aforesaid, good during the days when said chools are in session, shall be sold by said companies in lots of ten each. L railway company which violates the provisions of this section shall Drfeit twenty-five dollars for each offence.
By Acts of 1906, chapter 479, this latter provision was mended by the insertion of the words "or private" at the end f the second line, so that the provision of law was applicable to he "transportation of pupils of the public or private schools."
The term "public schools" may be considered as synonymous nth. "common schools," and as so used its meaning is well set- led. So it has often been defined in connection with the Con- titution, Article of Amendment XVIII. : —
All moneys raised by taxation in the towns and cities for the support f public schools, and all moneys which may be appropriated by the
OPINIONS OF THE ATTORNEY-GENERAL.
state for the support of common schools, shall be applied to, and expendec in, no other schools than those which are conducted according to law under the order and superintendence of the authorities of the town w city in which the money is to be expended; and such money shall nevei be appropriated to any rehgious sect for the maintenance, exclusively of its own school.
In the case of Merrick v. Amherst, 12 Allen, 500, 508, it wa; said by Chief Justice Bigelow : —
The phrases "public schools" and "common schools" have acquirec under ihe legislation and practice of this State a well-settled signification They are never applied to the higher seminaries of learning, such a; incorporated academies and colleges. These, in a certain broad anc comprehensive sense, are pubUc institutions, because they are controllec by corporations, and are usually open to all persons who are wilhng tc comply with the ter is of adnission and tuition. But the broad lin( of distinction between these and the "pubUc or common schools" is that the latter are supported by general taxation, that they are open tc all, free of expense, and that they are under the immediate control anc superintendence of agents appointed bj^ the voters of each town and city.
And again, in Jenkins v. A'ndover, 103 Mass. 94, 99, the court in speaking of public and common schools, said: —
These are the schools to which the eighteenth article applies, — schools which towns are required to maintain, or authorized to maintain, though not required to do so, as a part of our systeha of common education, and which are open and free to all the children and youth of the towns in which they are situated, who are of proper age or qualifications to attend them, or which adjoining towns may unite to support as a part of the same system. . . . This class of schools does not include private schools which are supported and managed by individuals; nor colleges or acade- mies organized and maintained under special charters for promoting the higher branches of learning, and not specially intended for, nor limited to, the inhabitants of a particular locahty.
It appears, then, that the term "public schools" as used in the Constitution of the Commonwealth, and as used in subse- quent acts of the Legislature, refers and is limited to schools forming a part of the general system of education for the chil- dren and youth of the Commonwealth, such schools as, on the
DANA MALONE, ATTORNEY-GENERAL. 77
)ne hand, cities and towns are required to maintain for educa- :ional purposes, and, on the other hand, children are required ,0 attend in order to obtain what is sometimes called "a com- non-school education."
It is clear, therefore, that the term "public schools" is appli- •able to those schools established and maintained by the public, it which the attendance of pupils is required and is not appli- •able to colleges or academies organized and maintained for pro- noting the higher branches of learning, or to textile schools or )ther institutions established and maintained for the purpose of nstructing voluntary pupils in certain specific branches of edu- :ation, mechanical or industrial, which do not form a part of the ;eneral system of education which the law requires to be main- ained by cities and towns. See Hanscom v. Loicell, 165 Mass. 19.
I am of opinion that so far as relates to the present question he interpretation of the statute is not affected by the addition tf the words "or private," contained in the amendatory act (St. 906, c. 479), since it is obvious that it was the intention of the legislature to confer a benefit only upon such pupils of private chools as are in process of obtaining an education similar to ind in substitution for that which cities and towns must furnish n their common or public schools; and that it was not intended 0 include institutions established for the purpose of instruction n the higher branches of learning, or in various mechanical or ndustrial branches either under the control of private individ- lals or of the Commonwealth.
The status of students at a State normal school must, there- ore, in my opinion remain unaffected by the amendment of 906, and if such students are entitled to benefit at all by the (revisions requiring street railways to carry pupils at half rates, t must be under the provision as contained in R. L., c. 112, ■ 72. This is the more obvious because in no sense can a nor- aal school maintained by the Commonwealth for the benefit of ts citizens and at the public expense be considered a private chool. See Merrick v. Amherst, supra; Hanscom v. Loicell, upra.
7S OPINIONS OF THE ATTORNEY-GENERAL.
It remains, therefore, to consider whether or not a State nor- mal school is in any sense a public school within the meaning of that term as used in the Constitution and statutes of the Com- monwealth. It is true that the State Board of Education is vested with the general management of State normal schools, and may expend the money appropriated for their maintenance (see R. L., c. 39); and being so maintained, they are undoubt- edly public institutions. But the preparation of persons for the profession of instruction in common schools not being an essen- tial part of the common-school system which the municipalities or the Commonwealth are required to maintain, in my opinion they are not public schools within the meaning of the statute. I am therefore obliged to answer the question in the negative.
Automobiles — Cities and Towns — Special Regulations — Posting — Sign Boards — Massachusetts Highway Commission.
Under the provisions of St. 1903, c. 473, § 8, as amended by St. 1905, cc. 311 and 366, and by St. 1906, c. 412, which enacted that local authorities "may make special regulations as to the speed of automobiles and motor cycles and asto the use of such vehicles on particular roads or ways, including their complete exclusion therefrom ..." a regulation adopted by the selectmen of a town restricting the speed of automobiles and motor cycles upon the streets of the thickly settled portion of such town to nine miles per hour is a special regula- tion; and, in the absence of protest as therein provided, it becomes the duty of the Massachusetts Highway Commission t6 post such regulation conspicu- ously on sign boards at such points as the commission may deem necessary.
M^chusetts ^^ ^ communication dated October 25 you state that the comSon. selectmen of the town of Harwich have duly adopted and pub- December24. Hshcd, as required by law, the following speed regulation relat- ing to automobiles: —
The selectmen of Harwich have restricted the speed of automobiles and motor cycles upon the streets in the thickly settled parts of said Harwich, to nine miles per hour. Said restriction is made under the Acts of 1903, chapter 473, as amended by chapters 311 and 366 of the Acts of the year 1905, and chapter 412 of the Acts of the year 1906.
You inquire whether in my opinion such regulation is special regulation within the meaning of the statute therein'
nl
DANA M ALONE, ATTORNEY-GENERAL. 79
cited, and whether in the absence of protest the commission is required to erect speed signs' on all roads located within the thickly settled portion of the town of Harwich.
St. 1903, c. 473, § 8, established a speed limit of fifteen miles " an hour outside the limits of a city or the thickly settled portion of a town or fire district, and of ten miles within a city or the thickly settled or business part of a town or fire district. This section was amended by St. 1906, c. 412, which repealed so much of the section as established a speed limit, by providing that: —
Every person operating an automobile or motor cycle on any public or private way laid out under the authority of law shall run it at a rate of speed at no time greater than is reasonable and proper, having regard to traffic and the use of the waj^ and the safety of the public.
The amendment then proceeds to establish rates of speed which shall be j)rima facie evidence that the operator is running his machine at a rate of speed greater than is reasonable and proper in the premises, such limits being twenty miles outside "the thickly settled or business part of a city or town" and twelve miles within such town. On curves and crossings, the speed which shall be prima facie unreasonable speed is eight miles. In section 2 the act construes the phrase "thickly set- tled or business part of a city or town," as follows: —
The plirase "thickly settled or business part of a citj^ or town", in section one of this act shall be deemed to mean the territory of a city or town contiguous to any such way which is built up with structures devoted to business, or the territory of a city or town contiguous to any such way where the dwelling houses are situated at such distances as will average less than two hundred feet between such dwelling houses for a distance of a quarter of a mile or over.
By St. 1905, c. 366, the city council of a city or the board of aldermen of a city having no common council, and the select- men of a town —
may make special regulations as to the speed of automobiles and motor cycles and as to the use of such vehicles on particular roads or ways, including their complete exclusion therefrom. If they determine that
so OPINIONS OF THE ATTORNEY-GENERAL.
on any particular way a speed greater than the speeds specified in section eight of chapter four hundred and seventy-three of the acts of the year nineteen hundred and three may be permitted with safety, they may make such special regulations as may appear to them to be necessary: provided, however, that no such special regulation increasing or lessening the speed at which automobiles and motor cycles may be run on the ])ublic highway's, or excluding them therefrom, shall be effective unless such regulation shall have been published in one or more newspapers, if there be any, published in such city or town, otherwise in one or more newspapers published in the county in which the city or town is situated.
The act contains provisions for protest before the Massachu- setts Highway Commission, in which case such special regula- tion is not valid until approved by such Board, and then con- tinues: —
Such special regulations shall be posted conspicuously by or under the direction of the Massachusetts highway commission on sign boards at such points as the board may deem necessary. The cost of such sign boards and the expenses in connection with their erection and maintenance shall be paid out of the appropriation for expenses in connection with the registration of automobiles and motor c,ycles and the licensing of operators thereof.
This act was amended by St. 1906, c. 412, § 9, which changed the words "fifteen days," the period allowed after publication for protest, to "sixty days."
Assuming that the regulation referred to by the Massachu- setts Highway Commission in their communication has been duly passed and published, as required by the statutes above quoted, I am of opinion that it is to be treated as a "special regulation as to the speed of automobiles and motor cycles," which it was within the power of the selectmen to pass, by au- thority and in accordance with the provisions of St. 1905, c. 366, and as such it becomes the duty of the commission to post such regulations conspicuously "on sign boards at such points as the board may deem necessary."
It is to be observed that the selectmen of a town are author- ized by the statute to make special regulations of two distinct classes: first, as to the speed of automobiles and motor cycles;
DANA MALONE, ATTORNEY-GENERAL. 81
.nd, second, as to the use of such vehicles on particular roads or ^^ays. From the language of the statute, it woilld seem that he regulations as to speed need not necessarily be limited to pecific roads or ways, but may be made generally applicable ither to the thickly settled or business portion of the town, or 0 that part of the town without the thickly settled or business ortion. Moreover, the statute imposes no limitation as to the sgulation of speed, and it would seem that a regulation limit- ig the speed to nine miles an hour (only three miles less than he rate which the statute makes prima facie evidence of im- roper driving) would not be an unreasonable regulation. For lese reasons I conclude, as above stated, that the regulation is 'ithin the terms of the statute.
loNTAGious Diseases — State Board of Health — Co- ordinate Powers with Local Boards of Health — Cities and Towns.
nder R. L., c. 75, § 8, providing in part that "if smallpox or any other contagious or infectious disease dangerous to the public health exists or is likely to exist in any place within the Commonwealth," the State Board of Health shall make an investigation thereof and "shall have co-ordinate powers as a board of health, in every city and town, with the board of health thereof ..." the exercise of such co-ordinate powers by the State Board of Health is confined to places throughout the Commonwealth where contagious diseases exist or seem likely to exist.
Your Board asks my opinion upon the question whether or To the
,VT>T i-rr e n ' • • T • ^ '"^tate Board
ot by K. L., c. 75, § 8, it is given co-ordmate powers with of Health. >cal boards of health throughout the Commonwealth, or January is. hether such powers are created only when contagious disease dsts or seems likely to exist in any given place, and are con- aed to such place and to the duration of the contingency above ■ferred to. R. L., c. 75, § 8, is as follows: —
If smallpox or any other contagious or infectious disease dangerous ' the public health exists or is likely to exist in any place within the •mmonwealth, the state board shall make an investigation thereof and
the means of preventing the spread of the disease, and shall consult
82
OPINIONS OF THE ATTORNEY-GENERAL.
thereon with the local authorities. It shall have co-ordinate powers as a board of health, in every city and town, with the board of health thereof, or with the mayor and aldermen of a city or the selectmen of a town in which there is no such board.
It appears from this section that the principal duty of the Board created by this section of the statute, with relation to matters of health, was the investigation of contagious or in- fectious diseases and the prevention of such diseases, and it is therefore provided that the Board shall consult with the local authorities thereon. Then follows the phrase under considera- tion,— "and shall have co-ordinate powers as a board of health, in every place, with the board of health," etc.
The strong reason for assuming that the powers referred to are conferred only where contagious disease exists or is likely to exist is the fact that they are mentioned in a section which pur- ports to treat only of contagious or infectious diseases. Upon the whole, I am of opinion that the words as used in R. L., c. 75, § 8, are applicable only to places throughout the Common- wealth where contagious disease exists or seems likely to exist, and are confined to such place.
To the
Insurunce
Commissioner
1907 February 13.
Insurance — Assessment Insurance — Foreign Corpora- tion — Change from Assessment to Old Line Busi- ness— Valuation of Policies.
A foreign insurance company admitted to this Commonwealth under the provisions of St. 1890, c. 421, an act relating to assessment insurance, which transacted business therein under the provisions of such statute until June 9, 1899, when it was authorized to transact the business of old line life insurance and since such date has transacted such business, is entitled to have its poUcies valued and to have a reserve maintained thereon on the basis of renewable term insurance, in accordance with R. L., c. 118, § 11, cl. 4, par. 2.
You request my opinion as to whether the Security Mutual Life Insurance Company of New York, which was admitted to Massachusetts in 1893 under the provisions of chapter 421 of the Acts of 1890, and transacted business in this Common- wealth as an assessment life company until June 9, 1899, when it was authorized to transact business as an old line life com-
DANA MALONE, ATTORNEY-GENERAL. 83
pany, and which has continued to transact such business in that way since that date, is entitled to have its policies valued in accordance with the second paragraph of the fourth clause of section 11 of chapter 118 of the Revised Laws. This paragraph is as follows : —
All policies or certificates of insurance issued before the first day of luly in the year eighteen hundred and ninety-nine by corporations which "ormerly transacted a life insurance business under the provisions of •hapter four hundred and twenty-one of the acts of the year eighteen lundred and ninety and acts in amendment thereof, and which now have luthority to do business in this commonwealth under the provisions of .his cliapter, which policies or certificates are in force on the thirty-fii-st lay of December of anj- year and which contain a provision for a payment )ther than the premium stipulated therein and under which the duration )f the premium payment is the same as the duration of the contract, 'xcept in endowment certificates and endowment policies, shall be valued md shall have a reserve maintained thereon on the basis of renewable erm insurance as fixed bj^ attained age in accordance with the provisions )f this chapter. To the reserve liabilitj^ determined as above the insurance lommissioner shall add the determinate contract reserve under anj^ other )olicies or certificates issued bj^ said companies, before said first day of I'uly and remaining in force on the thirtj^-first day of December of any "•ear, and in the absence of such contract reserve shall value them as ;ontracts providing similar benefits are to be valued under the provisions )f this chapter. But under no policy or certificate shall a greater aggre- gate reserve liability be charged than is otherwise required by this chapter. Ul policies of life insurance issued by any such corporation subsequent 0 the first day of July in the year eighteen hundred and ninety-nine, ncluding those which contain a provision for a pa5auent other than the iremiums specified therein, shall be valued and a reserve maintained hereon according to the provisions of this chapter, but all such policies ^sued by said former assessment corporations prior to the first daj' of anuary in the year nineteen hundred and three, shall be valued taking he first year as one-year-term insurance.
Chapter 229 of the Acts of 1899 was passed April 1, 1899, 'Ut by section S was to take effect July 1, 1899. This com- 'any changed its business from an assessment to an old line Drm of business on June 9, 1899, as it was entitled to under the iw as it stood prior to the passage of chapter 229 of the Acts f 1899.
S4
OPINIONS OF THE ATTORNEY-GENERAL.
I am of opinion that the Legislature did not intend to limit the benefits conferred by the portion of the section above quoted to those companies that changed from an assessment to an old line form of insurance upon or subsequent to July 1, 1899. Consequently, R. L., c. 118, § 11. cl. -i, par. 2, does not exclude this company simply on the ground that on the first day of July, 1899, it was already engaged in transacting old line insurance. Therefore, the company is entitled to have its poli- cies valued in accordance with the provisions of the above quoted section.
To the Super- intendent of State Adult Poor. 1907 March 5.
Pauper — Derivative Settlement — Retroactive Statute.
A pauper born in 1830 -who derived a settlement from his father in 1843, which became fixed when such pauper became of age, had acquired a settlement before the first day of May, 1860, and such settlement was therefore defeated and lost by the retroactive pro\-ision of R. L., c. 80, § 6, notwithstanding the fact that the settlement of the father came within the exception con- tained in such statute, and was not defeated thereby.
You request my opinion upon the following statement of facts: —
The pauper was born in Wareham, Mass., 1830; removed to Fairhaven, Mass., in 1833, where he derived a settlement from his fa.her, who acquired a settlement in same place in 1843. The pauper since his majority has performed none of the acts necessary to acquire a settlement. His father continued to reside in Fairhaven until bis death, July 6, 1874, owning and occupying a freehold estate each j'ear since 1843. Under the provisions of R. L., c. 80, § 6, "Any settlement which was not fully acquired sub- sequent to the first day of ^Nlay, in the year eighteen hundred and sixty, is hereby defeated and lost, unless such settlement prevented a subsequent acquisition of settlement in the s^me place; ..." As the father's settlement was saved under the exception, and that settlement acquired when the son was a minor, does it follow that the settlement of the son, the pauper, is not lost?
The settlement of the pauper in question, derived from his father in 1843, became fixed when the pauper became of age in 1851, and thereafter was unaffected by any subsequent loss or acquisition of settlement by his father. He had, therefore, a settlement in the town of Fairhaven, acquired before the first
I DANA MALONE, ATTORNEY-GENERAL. 85
day of May, 1860, and such settlement was clearly defeated and lost by the retroactive provision of R. L., c. 80, § 6, — "Any settlement which was not fully acquired subsequent to the first day of May in the year eighteen hundred and sixty is hereby defeated and lost, unless such settlement prevented a subse- quent acquisition of settlement in the same place," — since after 1851 he did nothing which would entitle him to a settle- ment either in Fairhaven or elsewhere, and does not come, therefore, within the exception in the above-entitled section. The fact that the father's settlement did come within the excep- tion and was not lost seems to me to be immaterial in respect to the settlement of the son.
5tate Board of Health — Nuisance — Jurisdiction — Abatement of Nuisance — Pending Complaint to Local Board of Health and Bill of Complaint in Superior Court.
The State Board of Health may, under the pro\-isions of R. L., c. 75, § 109, enter- tain an application or complaint alleging that a corporation engaged in the manufacture of cement is maintaining a nuisance upon its premises, and may investigate the conditions attending such manufacture upon such prem- I ises, notwithstanding that such corporation was authorized bj- the local
I authorities to engage in and carrj- on the business of manufacturing cement
at such place, and notwithstanding that a bill of complaint of the same tenor was filed by the petitioner and is now pending before the Superior Court, and that a like complaint has been presented to the local board of health, upon which such board has not yet acted.
The State Board of Health requests my opinion as to its To the
• <i. . . , , , State Board
unsdiction in the matter of a complaint directed against the of Health. Russia Cement Company of Gloucester, and a petition for the -March le. ibatement of a nuisance alleged to exist on the premises of said ?ompany. The Russia Cement Company moved to dismiss the :omplaint for the reason that the State Board of Health lacked urisdiction.
It appears that the business of the Russia Cement Company vas being conducted upon the same premises to which the cor- Doration had been assigned by the local board of health in 1881, ind in buildings occupied and used by the written permission of
8(i OPINIONS OF THE ATTORNEY-GENERAL.
the mayor and board of aldermen; that at the time of filing the petition the said business was being conducted on said premises under the regulations of and in the mode prescribed by the local board of health, and with its approval; that on July 16, 1906, the same petitioner made a like complaint to the local board, which complaint is now held under advisement by that board; and that on Oct. 11, 1906, the same petitioner filed a bill of complaint of the same tenor and effect in the Essex Superior Court, praying for an injunction and the prohibition of said business, and the same is now pending in said court.
The cement company objects to the jurisdiction of the State Board of Health: —
(1) Because of the proceeding in and before the local board of health.
(2) By reason of the proceedings in and before the Superior Court.
The jurisdiction of the State Board of Health is under R. L., c. 75, § 109, which reads as follows: —
If any buildings or premises are so occupied or used, the state board of health shall, upon application, appoint a time and place for hearing the parties and, after due notice therefor to the party against whom the application is made and a hearing, may, if in its judgment the public health, comfort or convenience so require, order any person to desist from further carrying on said trades or occupations in such building or premises; and whoever thereinafter continues so to occupy or use such buildings or premises shall forfeit not more than two hundred dollars for every month of such occupancy and use, and in like proportion for a shorter time.
The question is, therefore, whether the fact that a license has been issued to the Russia Cement Company by the local au- thorities, and the business of said company is conducted with the approval and subject to the regulation of the local board of health, and that a petition has been filed in the Superior Court to enjoin such company from maintaining a nuisance, limits the jurisdiction of the State Board of Health in the premises.
The power of the State Board of Health under R. L., c. 75, § 109, was first established in St. 1871, c. 167, which authorized
DANA MALONE, ATTORNEY-GENERAL. 87
such Board to forbid the exercise of an offensive trade in any municipaUty of more than 4,000 inhabitants. See Sawyer v. State Board of Health, 125 Mass. 182, 192, where the court say: —
It simply gives to the State Board of Health jurisdiction, whether concurrent with the town boards or exclusive it is not material to this case to inquire, in cities and large towns, to do what may be done in every town of the Commonwealth by the local board of health.
In Cambridge v. Trelegan, 181 Mass. 565, the court state, in speaking of the authority of the local board to forbid the carry- ing on of a slaughter house as dangerous to the public health after license by the proper authority : —
From its origin the policy of requiring the license mentioned has been shown not to be exclusive of the exercise of their usual powers by boards of health by the express grant of power to the State Board of Health to prohibit carrying on the business of slaughtering in a building or premises occupied for that purpose. St. 1871, c. 167, § 2; St. 1874, c. 308; Pub. Sts., c. 80, § 93; R. L., c. 75, § 109. The court is of opinion that this grant of power is not exclusive, and that it would be unwarranted and anomalous to hold the license good against the local board acting under Pub. Sts., c. 80, § 84, R. L., c. 75, § 91, when it would be no answer to the State Board acting under what is now another section of the same chapter of the Revised Laws. See Saunjer v. State Board of Health, 125 Mass. 182, 191, 192; Stone v. Heath, 179 Mass. 385.
In these cases it appears clear that the jurisdiction of the State Board of Health is at least concurrent with that of local boards of health in cities and towns of more than 5,000 in- habitants; and the fact that the local board of health refuses to act in the premises does not in any way affect the right of the State Board of Health to proceed. Indeed, it may well have been that the Legislature intended that the State Board under just such circumstances should have the power to inter- vene, and prohibit the carrying on of business injurious to the public health.
I am therefore of opinion that the fact that the question con- cerning the Russia Cement Company had been raised before the local board of health, and that the method of business of such
OPINIONS OF THE ATTORNEY-GENERAL.
company had been approved by such board, does not affect the present proceedings brought before the State Board of Health. In respect to the proceedings pending before the Superior Court, the case of Stone v. Heath, 179 Mass. 385, seems to be conclusive. In that case the court say, in discussing action by a local board of health (p. 389) : —
And if it be true, as alleged, that action was taken with a view to affect proceedings in the suit pending in the Superior Court between the plaintiffs and the water company, that also furnishes no ground for interference with the board of health. It often happens chat the pro- ceedings in one tribunal are affected or may be affected by action taken by another tribunal. Such action may even be taken with that purpose in view, so long as it is within the jurisdiction of the tribunal that acts, and may also be at the instance of one of the parties to the proceedings in the other tribunal.
I am of opinion, therefore, that the State Board of Health may proceed with the investigation of the question raised by the petition in this case, if it deems it proper to do so.
Constitutional Law — Acceptance of Statute — Approval BY Majority of Qualified Voters of Commonwealth.
So much of Senate Bill No. 9, entitled "An Act to fix the punishment for the crime of murder," as purports to provide that such act shall take effect when ap- proved by a majority of the voters of the Commonwealth, is unconstitutional.
mttt^S'the ^ hsi\e your letter in which you say that the joint judiciary "^"igo?^"^^' committee ask my opinion as to the constitutionality of section ^IHII- 5 of Senate Bill No. 9. The title of that bill is, "An Act to fix
the punishment for the crime of murder." Said section 5 reads
as follows : —
This act shall take effect when approved by a majority of the qualified voters of the Commonwealth at the next annual state election.
In the Opinion of the Justices, 160 Mass. 586, our Supreme Judicial Court has said that there is nothing in our Constitution which would lead one to think that the people desired that any
DANA MALONE, ATTORNEY-GENERAL. 89
law should ever be submitted to them for approval or rejection; that by the Constitution the Senate and the House of Repre- sentatives have been made the legislative department of the government.
Apparently it was thought that the persons selected for the executive, egislaUve and judicial offices in the manner prescribed in the Constitution vould be men of good character and intelhgence, of some experience in iffairs and of some independence of judgment, and would have a better )pportunity of obtaining information, taking part in discussion and care- ully considering conflicting opinions, than ^he people themselves; and he people therefore put the responsibility of carrying on the government ipon their representatives.
The question under consideration was an act granting to vomen the right to vote in town and city elections. The act )rovided that it should take effect throughout the Common- vealth on its acceptance by a majority vote of the voters of the vhole Commonwealth.
The question was further considered in the case of Brodbine 7. Revere, 182 Mass. 600; and the court, speaking by Chief lustice Knowlton, said: —
It is well established in this Commonwealth and elsewhere that the LiBgislature cannot delegate the general power to make laws, conferred ipon it by a Constitution hke that of Massachusetts. This doctrine is leld by the courts almost universally.
These decisions seem conclusive, and I am therefore of )pinion that it would be unconstitutional to provide that said ict shall take effect when approved by a majority of the voters )f the Commonw^ealth.
90 OPINIONS OF THE ATTORNEY-GENERAL.
Massachusetts State Sanatorium — Application — Pref- erence OF Citizens.
Under the provision of St. 1907, c. 222, § 1, that "preference shall be given to those applicants who are citizens of the Commonwealth," the trustees of the Massachusetts State Sanatorium are authorized to give precedence in cases of tuberculosis: first, to incipient cases of citizens; second, to ad- vanced cases of citizens; third, to incipient cases where the applicants are not citizens; and fourth, to advanced cases where the applicants are not citizens.
TotheTrus- J h&ve vour letter of the 4th, in which you say that the
tees of Massa- -^
sanftorlu^nf'' trustces of the Massachusetts State Sanatorium desire to ask AprTii. my opinion on the effect of chapter 222 of the Statutes of 1907,
section 1 of which is as follows: —
In the admission of persons to the Massachusetts state sanatorium preference shall be given to those apphcants who are citizens of the Commonwealth.
You say that the State Sanatorium was established by St. 1895, c. 503, under the name of Massachusetts Hospital for Consumptives and Tubercular Patients; that the name was changed to Massachusetts State Sanatorium by St. 1900, c. 192; that there is no provision of law which defines the objects of the institution or the admission of patients; that cases of tuber- culosis are divided by the medical profession into three classes, according to the progress the disease has made, — (1) incipient, (2) advanced and (3) far advanced; and that the trustees have for the past ten years admitted only persons who after medical examination were pronounced to be in the incipient stages of tuberculosis, believing that in so doing they were best carrying out the object of the institution, but that whenever there were not sufficient incipient cases to fill the institution, moderately advanced cases were accepted, and that incurable cases are not accepted. You say there are not sufficient applications from incipient cases to fill the sanatorium, and moderately advanced cases are frequently admitted, but only when their admission does not result in preventing the admission of incipient cases.
You ask whether chapter 222 of the Acts of 1907 compels
DANA MALONE, ATTORNEY-GENERAL. 91
rou to admit persons in the moderately advanced or incurable tages of tuberculosis who are citizens of Massachusetts, in pref- ■rence to applicants in the incipient stages of tuberculosis who ire residents but not citizens. I think the law as it stands to-day authorizes you to admit
1) incipient cases where the persons are citizens, (2) advanced ases where the persons are citizens, and preference must be ;iven to these two. I see no objection to your making a rule hat you will not admit far advanced cases. If you should do hat, you can then, after having provided for the incipient and dvanced cases where the applicants are citizens, admit, first, neipient cases where the applicants are not citizens, and then .dvanced cases where the applicants are not citizens.
In other words, my conclusion is that you would be war- anted in giving preference (1) to incipient cases of citizens,
2) to advanced cases of citizens, (3) incipient cases where the ,pplicants are not citizens, and (4) advanced cases where the -pplicants are not citizens.
Bounty Commissioners of Bristol County — Compensation FOR Services as Members of Joint Board.
'he Governor and Council may not provide compensation for the county commis- sioners of the county of Bristol for services as members of the joint board created by St. 1903, c. 462, to locate and construct a new drawbridge over Great Taunton River, and consisting of the Board of Railroad Commis- sioners, the Board of Harbor and Land Commissioners, and the county commis- sioners of the county of Bristol.
My opinion is asked orally by Your Excellency as to whether To the
* "^ " . Governor.
r not the Governor and Council may provide compensation i907 or the county commissioners of the county of Bristol for their ervices as members of the joint board created by chapter 462 f the Acts of 1903, to locate and construct a new drawbridge ver Great Taunton River, between the city of Fall River and he town of Somerset. Section 1 of this chapter provides that: —
The board of raih-oad commissioners, the board of harbor and land omniissioners and the county commissioners of the county of Bristol,
92 OPINIONS OF THE ATTORNEY-GENERAL.
who are constituted a joint board to act by a majority vote of all the members, are hereby authorized and directed to locate and construct a new drawbridge between the city of Fall River and the town of Somer- set, over Taunton Great river . . .
Section 5 provides for the appointment of a special com- mission to estimate and determine the towns, cities and corpo- rations to be assessed for the cost of constructing and maintain- ing the bridge.
Section 6 provides that : —
. The members of the boai'd of railroad commissioners, the board of harbor and land commissioners and the special commission appointed under this act shall receive such compensation as the governor and council shall approve, the same to be paid by the county of Bristol. . . .
I am of opinion that the Governor and Council have no authority under the act in question to approve or vote any compensation to the county commissioners of Bristol County. The words "special commission" do not in my opinion indi- cate the whole of the joint commission, but refer to the special commissioners to be appointed under section 5.
Registered Pharmacist — Conduct of Business — Attend- ance OF Registered Pharmacist.
R. L., c. 76, § 23, requires that an unregistered member of a copartnership engaged in the business of pharmacy, who compounds for sale or dispenses for medi- cinal purposes drugs, medicines, chemicals or poisons, shall do so only under the personal supervision of a registered pharmacist.
Jf^Regis^ratYon ^J' ^'^^^^ commuuication of March 28 you seek my opinion in Pharmacy, ^p^^^ ^^xe qucstiou whcthcr, under R. L., c. 76, § 23, it is neces- ■^^' sary "for a registered pharmacist to be in attendance at all
times in a drug store while conducting the business of a phar- macist." The section referred to is as follows: —
The provisions of sections twenty-one to twenty-nine, inclusive, of chapter one hundred, section twenty-six of chapter seventy-five and section two of chapter two hundred and thirteen shall not apply to physi- cians who put up their own prescriptions or dispense medicines to their
DANA MALONE, ATTORNEY-GENERAL. 93
■atients; nor to the sale of di'ugs, medicines, chemicals or poisons at wholesale only; nor to the manufacture or sale of patent and proprietary ledicines; nor to the sale of non-poisonous domestic remedies usually old by grocers and others; nor shall any unregistered member of a opartnership be hable to the penalties hereof if he retails, compounds for lie or dispenses for medicinal purposes drugs, medicines, chemicals or oisons only under the personal supervision of a registered pharmacist, 'he widow, executor or administrator of a registered pharmacist who has ied or the wife of one who has become incapacitated may continue his usiness under a registered pharmacist.
In reply I beg to advise you that the statute clearly requires bat an unregistered member of a copartnership who compounds )r sale or dispenses for medicinal purposes drugs, medicines, hemicals or poisons shall do so only under the personal super- ision of a registered pharmacist, and such supervision can exist nly when a registered pharmacist is present.
,ABOR — Eight-hour Law — Domestic Servants — Holidays.
nder St. 1907, c. 269, amending St. 1906, c. 517, and providing that no laborer, workman or mechanic emploj^ed by or on behalf of the Commonwealth or of any county therein or in any city or town which has accepted the pro- visions of R. L., c. 106, § 20, "shall be requested or required to work more than eight hours in any one calendar day or more than forty-eight hours in any one week, except in cases of extraordinary emergency," cooks, maids, I or other domestic servants may not be requested or required to work more
than eight hours in any one calendar day or more than forty-eight hours in any one week, except in cases of extraordinary emergency.
lO workman, laborer or mechanic so employed may be requested to work more than eight hours in any one calendar day, except in cases where a Saturday half-holiday is given, in which case the hours of labor on other working days may be increased to make a total of forty-eight hours for the week's work.
mployees may arrange between themselves to substitute for each other in pro- viding for vacation periods; but they may not be requested or required so to do by their employers if it results that such arrangement involves more than eight hours' work by any of the parties in any one day.
''^here an employee at a State insane hospital, as a precautionary measure, is required to remain and to sleep in a room adjoining the room of a patient or a dormitory, the time of sleep is not to be considered as time on duty.
I have your letter of the 25th, in which you ask my opinion To the super- intendent of
pon certain questions relative to the so-called eight-hour law, ^^^^^^^^f ^^i eing chapter 269 of the Acts of 1907, section 1 of \vhich reads j^^^^'^^e. s follows: —
94 OPINIONS OF THE ATTORNEY-GENERAL.
Section one of chapter five hundred and seventeen of the acts of the year nineteen hundred and six is hereby amended by inserting after the word "laws," in the sixth hne, the following: — No laborer, workman or mechanic so employed shall he requested or required to work more than eight hours in any one calendar day or more than forty-eight hours in any one week except in cases of extraordinary emergency. Only a case of danger to property, to life, to pubMc safety, or to public health shall be considered a case of extraordinary emergency within the meaning of this section. Engineers shall be considered mechanics within the meaning of this act, — and by adding at the end of the section the following: — Threat of loss of employment or threat to obstruct or prevent the obtain- ing of employment, or threat to refrain from employing in the future shall be considered requiring within the meaning of this section, — so that the section as amended will read as f ollovrs : — ■ Section 1 . Eight hours shall constitute a day's work for all laborers, workmen and mechanics now or hereafter employed by or on behalf of the Commonwealth, or of any county therein, or of any city or town which has accepted the provisions of section twenty of chapter one hundred and six of the Revised Laws. No laborer, workman or mechanic so employed shall be requested or required to work more than eight hours in any one calendar day or more than forty-eight hours in any one week except in cases of extraordinary emergency. Only danger to property, to life, to public safetj' or to public health shall be considered cases of extraordinary emergency within the meaning of this section. Engineers shall be considered mechanics witliin the meaning of this act. But in cases where a Saturday half -holiday is given the hours of labor upon the other working days of the week may be increased sufficiently to make a total of forty-eight hours for the week's work. Threat of loss of employment or threat to obstruct or prevent the obtaining of employment, or threat to refrain from employing in the future shall be considered requiring within the meaning of this section.
You ask: "Is it permissible to employ domestics on the hourly basis?"
By domestics I assume that you mean house servants, both men and women; and I am of opinion that neither men nor women can be requested or required to work more than eight hours in any one calendar day, nor more than forty-eight hours in any one week, except in cases of extraordinary emer- gency.
2. "i\Iay employees work overtime on other days, to make up for a holiday on any other day than Saturday?"
DANA MALONE, ATTORNEY-GENERAL. 95
They cannot be requested or required to work more than 'ight hours in any one calendar day except in cases where a Saturday half-holiday is given, in which case the hours of labor ipon the other working days of the week may be increased ufficiently to make a total of forty-eight hours for the week's vork.
3. "Are cooks, maids and other domestics included under the ight-hour law?"
I am of opinion that they are so included. R. L., c. 8, § 4, 1. 4, provides: "Words importing the masculine gender may be pplied to females." The Supreme Court of the United States, n the case of Silver v. Ladd, 7 Wall. 219, held that the words single man" and "married man," in construing a benevolent tatute of the government made for the benefit of its own citi- ens, must be taken in the generic sense; and that an act of Congress, granting by way of donation land in Oregon Territory 0 every white settler or occupant, embraced within the term 'single man" an unmarried woman. I have no reason to think he Legislature intended to discriminate between men and wo- nen doing the same work, by providing that a man should not )e required to work more than eight hours, while a woman night be required to work much longer.
4. "May employees arrange between themselves to substitute or each other, thus exchanging time off duty, — as, for in- tance, in arranging for a vacation of two weeks?"
There is no reason why they may not do so by mutual agree- Qent; but they should not be requested or required to work fiore than eight hours in any one day by their employer.
5. "If an employee, as a precaution in case of fire or other mergency, is required to remain in a room adjoining a patient's oom or dormitory, this employee being allowed and expected 0 go to bed and go to sleep, is this time of sleep to be con- idered as time on duty?"
No. It is no more a requirement than if you requested your mployees to sleep in any particular building upon the premises f the hospital.
OC)
OPINIONS OF THE ATTOKNEY-GENERAL.
To the Board of Metropolitan Park Com- missioners.
1907 May 10.
Board of Metropolitan Park Commissioners — Rules and Regulations — Roadways — Violation of Rules and Regulations — Arrest — Warrant.
The authority of the Metropolitan Park Commission, under St. 1893, c. 407, § 4, and St. 1894, c. 288, § 3, to make rules and reg\ilations for the government and use of open spaces, lands, rights and easements or interests in land, is the same whether such lands or rights, easements or interetts in land to which such rules are applicable were acquired and are controlled by such commission under St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2.
The term "roadways," as used in St. 1894, c. 288, § 3, includes roadways under the care of the Metropolitan Park Commission, constructed upon lands ac- quired under St. 1893, c. 407, §§ 4 and 6.
A police officer appointed by the Metropolitan Park Commission may arrest with- out warrant any person who violates in his presence any rule or regulation duly made by such commission by authority of St. 1894, c. 288; and may arrest without warrant any person who violates in his presence any rule or regulation duly made by such commission by authority of St. 1903, c. 407, whenever such violation involves acts which are in fact breaches of the pub- lic peace.
By a communication dated April 10, 1907, your Board inquires: —
1 . Whether or not the commission has authority to make rules and regulations for the government and use of open spaces, lands, rights, easements or interests in lands transferred to its care and control under either St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2.
2. Whether or not the term "roadways," referred to in St. 1894, c. 288, § 3, includes roadways under the care of the com- mission, constructed upon lands acquired under St. 1893, c. 407, §§ 4 and 6.
3. Whether or not a police officer appointed by the commis- sion may arrest without warrant a person committing in his presence a violation of a rule enacted under either St. 1893, c. 407, § 4, or St. 1894, c. 288, § 3.
The open spaces, lands, rights, easements or interests in lands referred to in the first inquiry are those transferred to the care and control of the Metropolitan Park Commission under the following statutes : —
St. 1893, c. 407, § 6:— I
Any city or town within said district, or any local board of such city or town, with the latter's consent, is hereby authorized and empowered
DANA MALONE, ATTORNEY-GENERAL. 97
> transfer the care and control of any open space owned or controlled r it to the metropoUtan park commission, upon such terms and for such iriod as may be mutually agreed upon; or to enter into an agreement th said commission for the joint care and preservation of open spaces thin or adjacent to such city or town; and the metropolitan park mmission may in like manner transfer the care and control of any open ace controlled by it to any local board of a city or town within the said strict, with the consent of such city or town and upon such terms and • such period as may be mutually agreed upon.
St. 1896, c. 465, § 2: —
Said commission is hereby authorized and empowered to transfer for re and control, including police protection, any lands or rights or ease- snts or interest in land, although the same be a roadway or boulevard ned or controlled by it, to any citj^ town or county, or local board of a 7 or town within the metropohtan parks district, with the consent of •h city, town, county or board, and upon such terms and for such period may be mutually agreed upon, and to enter into an agreement with y such city, town or county or board for the joint care and control or lice protection of said land or boulevard, and also for laying out, con- i acting and maintaining streets or ways into or across any such land
< boulevard; and any city, town or county, or any local board within metropoUtan parks district, is hereby authorized and empowered to
• .nsfer for care and control, including pohce protection, any land, rights,
< lements or interest in land in its control, although the same be already i )art of a public street owned or controlled by it, to the metropoUtan 1 "k commission for such period and upon such terms as may be mutually i eed upon, and to enter into an agreement with said commission for the X it care and control, including poUce protection, of said land or street.
The powers of the commission in the premises were first de- f ed in St. 1893, c. 407, § 4, which provided that: —
5aid board shaU have power to acquire, maintain and make available tthe inhabitants of said district open spaces for exercise and recreation; a I to this end, acting so far as may be in consultation with the proper 1' al boards, shall be authorized to take, in fee or otherwise, in the name al for the benefit of the Commonwealth, by purchase, gift, devise or e inent domain, lands and rights in land for public open spaces within s: I district, or to take bonds for the conveyance thereof; . . .
n furtherance of the powers herein granted, said board may employ Suitable police force, make rules and regulations for the government a I use of the public reservations under their care, and for breaches
98 OPINIONS OF THE ATTORNEY-GENERAL.
thereof affix penalties not exceeding twenty dollars for one offence, to be imposed by any court of competent jurisdiction; and in general may do all acts needful for the proper execution of the powers and duties granted to and imposed upon said board by the terms of this act. . . .
St. 1894, c. 288, the so-called "boulevard act," provided in section 1 that the Board of Metropolitan Park Commissioners might connect any road, park, way or other public open space with any part of the cities or towns of the metropolitan parks district under its jurisdiction, by a suitable roadway or boule- vard; and such commission was given for this purpose authority to exercise any of the rights and powers granted to it by the earlier act, in the manner therein prescribed, as well as the power to take or acquire, in fee or otherwise, by purchase, gift, devise or eminent domain, lands or rights or easements or in- terest in land within the metropolitan parks district, although the land so taken or any part of it w^as already a street or way. Section 3 is in part as follows: —
In furtherance of the powers herein granted said board may appoint clerks, police and such other emploj'^ees as it may from time to time find necessary for the purposes of this act, remove the same at pleasure, and make rules and regulations for the government and use of the roadways or boulevards under its care, breaches whereof shall be breaches of the peace, punishable as such in any court, having jurisdiction of the same; and in addition said board shall have the same rights and powers overi and in regard to the roadways or boulevards taken and constructed hereunder as are or may be vested in them in regard to other open spaces by said chapter four hundred and seven and acts in amendment thereof and in addition thereto, and shall also have such rights and powers in regard to the same as, in general, counties, cities and towns have ovei public ways under their control.
In an opinion by Attorney-General Parker, dated Aug. 21,^ 1903 (2 Op. Atty.-Gen. 454), relating to the police jurisdictioi of the Metropolitan Park Commission, it is said : —
It follows, therefore, that the authority of the Metropolitan Park Com- mission with regard to police regulation of pubhc open spaces does nol <liffer from that which they have over parkways and boulevards as defined in the opinion of last year already referred to. (See 2 Op. Atty.-Gen. 363.]
DANA MALONE, ATTORNEY-GENERAL. 99
St. 1894, c. 288, did not contain any provision by which a city or town Avithin the district was empowered to transfer to the Metropolitan Park Commission open spaces within the con- trol or ownership of such city or town, or to enter into joint agreements for the care or preservation of open spaces, or by which the commission might transfer the care and control of open spaces to any local board of a city or town, as appears in St. 1893, c. 407, § 6, above quoted. This omission was sup- plied in St. 1896, c. 465, entitled "An Act to better define the authority of the Metropolitan Park Commission." This statute, in section 1, deals exclusively with roadways or boule- v^ards (see 1 Op. Atty.-Gen. 588, 593); and in my opinion is to be construed to be supplementary to St. 1894, c. 288. Sec- tion 2 of chapter 465 of the Acts of 1896 is hereinbefore quoted.
I am of opinion that, so far as the power and authority of the Metropolitan Park Commission to make rules and regulations :'or the government of public open spaces, roadways or boule- vards is involved, it is the same whether the lands or rights, casements or interest in land, to which such rules are appli- mble, were acquired by the Board and are controlled by it inder St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2; and that 5uch authority is defined in St. 1893, c. 407, § 4, and St. 1894, :. 288, § 3. (See 2 Op. Atty.-Gen. 454.)
The second inquiry deals with the term "roadways," as used n St. 1894, c. 288, § 3; and the substance of the inquiry is ;vhether or not roadways constructed by the Metropolitan Park Commission upon lands acquired and held as open spaces, under :he provisions of St. 1893, c. 407, are to be considered as park- vays, roadways or boulevards constructed under the provisions )f St. 1894, c. 288.
I am of opinion that they are to be so considered. It has ilready been decided that the commission may expend the noney appropriated under the "boulevard act," so called (St. 1894, c. 288), in constructing a roadway over land already ac- luired by such board under St. 1893, c. 407, if the purpose of iuch connection is to connect a road, park, way or other public )pen space within any part of the cities or towns of the metro-
100 OPINIONS OF THE ATTORNEY-GENERAL.
politan parks district under the jurisdiction of the commission (2 Op. Atty-Gen. 567); and a consideration of the provisions of St. 1894, c. 288, appears to warrant a conclusion that it was contemplated by the Legislature that the commission should under such statute be authorized to construct parkways or boulevards across existing parks or open spaces under its control. This is forcibly shown by striking out of section 1 of such act such words and phrases as do not directly bear upon the present question, so that it reads as follows : —
The board of metropolitan park commissioners, constituted under the authority of chapter four hunched and seven of the acts of the year eighteen hundred and ninety-three is hereby authorized to take . . . any lands . . . although the lands so taken ... be already a street or way, and to construct and maintain . . . over the same or any other land acquired bj' said board bj'' said act a suitable roadway or boulevard.
The word "same" in the above extract obviously refers to lands taken under the provisions of St. 1894, c. 288; while the words "or any other land acquired by said board by said act" as obviously refer to lands taken or acquired by the commission under the provisions of St. 1893, c. 407. (See words "said act," in eighth line of St. 1894, c. 288, § 1.)
It follows, therefore, in my opinion, that the Board is ex- pressly authorized to construct, under the provisions of St. 1894, c. 288, roadways across public reservations or open spaces taken or acquired by it under the provisions of St. 1893, c. 407, and may make rules and regulations for the government and control of such roadways, under the provisions of the former statute, the so-called "boulevard act;" or, in other words, that St. 1894, c. 288, § 3, providing that the commission may " make rules and regulations for the government and use of a roadway or boule- vard under its care, breaches whereof shall be breaches of the peace," is applicable as well to such roadways as to parkways or boulevards which connect with but do not cross the open spaces or reservations established under the "park act," so called.
The remaining question is, whether or not a police officer ap- pointed by the commission may arrest without warrant any per-
DANA MALONE, ATTORNEY-GENERAL. 101
son who violates in his presence a rule or regulation duly made by the commission under either the "park act" or the "boule- vard act."
The powers and duties of the metropolitan park police are defined in St. 1897, c. 121, § 3, as follows: —
The police appointed or employed by said commission, in accordance with the provisions of chapter fom- hundred and seven of the acts of the year eighteen hundred and ninety-three and chapter two hundred and eighty-eight of the acts of the year eighteen hundred and ninety-four and all acts in amendment thereof and in addition thereto, shall have within the metropoUtan parks district all the powers of poUce officers and constables of cities and towns of this Commonwealth, except the power of serving and executing civil process, and when on duty may carry such weapons as said commission shall authorize.
The power of police officers and constables to arrest w^ithout warrant any person committing in their presence a breach of the peace, and to hold such person until he can be brought before a magistrate, has long been recognized.
It has often been held that constables, as conservators of the peace, have power to arrest, upon view, persons violating the laws, and detain them until they can be brought before a magistrate. (Shaw, C.J., in . Commonwealth v. Hastings, 9 Met. 259, 262.)
And see Commoimealth v. Tohin, 108 Mass. 426, 429; Parker v. Barnard, 135 Mass. 116, 117.
And the common law authority of such officers has been much broadened by statute. So it is provided in R. L., c. 31, § 2, that : —
The watch shall suppress and prevent all disturbances and disorders. During the night time, they may examine all persons abroad whom they have reason to suspect of an unlawful design, and may demand of them their business abroad and whither they are going; may disperse any assembly of three or more such persons; and may enter any building to suppress a riot or breach of the peace therein. Persons so suspected who do not give a satisfactory account of themselves, persons so assembled and who do not disperse when ordered, and persons making, aiding or abetting in a riot or disturbance, may be arrested by the watch, and shall
102 OPINIONS OF THE ATTORNEY-GENERAL.
thereupon be safely kept, by imprisonment or otlierwise, until the next morning and then taken before a police, district or municipal court or trial justice to be examined and prosecuted.
And in R. L., c. 212, §36: —
Whoever is found in a state of intoxication in a public place, or is foimd in any place in a state of intoxication committing a breach of the peace or disturbing others by noise, may be arrested without a warrant by a sheriff, deputy sheriff, constable, watchman or police officer, and kept in custody in a suitable place until he has recovered from his intoxication.
In R. L., c. 212, § 47, it is provided that in the case of rogues and vagabonds and other persons enumerated in the preceding section, they —
may be apprehended by a sheriff, deputy sheriff, constable, police officer or watchman, or by any other person by the order of a magistrate or any of said officers, without a warrant and be kept in custody for not more than twenty-four hours, Sunday or a legal holiday excepted; and at or before the expiration of such time he shall be taken before a police, district or municipal court or trial justice and proceeded against, as provided in the preceding section, or discharged as such court or justice shall deter-
See also St. 1906, c. 403; R. L., c. 212, §§ 57-62, etc.
It would seem, therefore, that the metropolitan park police, having all the powers of police officers and constables with re- spect to offences against the law, may arrest without warrant in case of any breach of the peace committed in their presence or in the case of any criminal act when by statute a warrant is dispensed with; and it remains to determine whether or not a breach of the rules and regulations established by the Metro- politan Park Commission is a breach of the peace within the rule apparently established by the decisions. In the case of rules or regulations made under the provisions of St. 1894, c. 288, no difficulty arises, for by section 3 breaches thereof are expressly made "breaches of the peace, punishable as such in any court having jurisdiction of the same." St. 1893, c. 407, does not contain identical language with this section, the words
DANA MALONE, ATTORNEY-GENERAL. 103
1 that statute (section 4) being that the Metropolitan Park ommission may "make rules and regulations for the govern- lent and use of the public reservations under their care, and for reaches thereof affix penalties ... to be imposed by any court F competent jurisdiction;" and it is, of course, conceivable that le addition of the specific declaration in the later act, that vio- .tions of the rules and regulations relating to parkways and oulevards shall be breaches of the peace, was intended to •eate a distinction between the rules relating to reservations ad public open spaces, and those applicable to parkways and aulevards; even if this be so, however, the distinction is not of ■eat importance, for, so far as the violations of rules estab- shed under St. 1893, c. 407, § 4, do in fact constitute disturb- ices of the public peace upon such reservations or open spaces, ley may be so treated, and the offender may be arrested with- it warrant, the officer in such case acting by authority in- erent in his office. See Commonwealth v. Tobin, 108 Mass. 26, 429. And this class of oft'ences must include by far the ,rger number of the cases in which the officer is called upon to
2t.
Replying directly to the question as submitted, therefore, I m of opinion that a police officer appointed by the commission lay arrest without warrant any person who violates in his resence any rule or regulation duly made by the commission by uthority of St. 1894, c. 288, the so-called "boulevard act," and lay arrest without warrant any person who violates in his pres- nce any rule or regulation duly made by the commission by uthority of St. 1893, c. 407, the so-called "park act," when- e'er such violation involves acts which are in fact breaches of le public peace.
104 opinions of the attorney-general.
Treasurer and Receiver-General — Bonds of Common- wealth — Issue — Transfer to Executor or Adminis- trator.
The Treasurer and Receiver-General, under R. L., c. 6, § 74, which pro\-ides "that the treasurer may . . . issue in substitution for mutilated, defaced or indorsed bonds presented to him other bonds of like or equivalent issues," may, at the request of an executor or administrator, transfer to such execu- tor or administrator in his individual capacity bonds issued by the Com- monwealth to a decedent or to the executor or administrator of a decedent, pro\-ided that in the case of an executor there is nothing in the will restrict- ing his general authority in the premises.
TreM^er You Fcquest my opinion as to whether you may, at the re-
G^ele^.^"" quest of an executor or administrator, transfer bonds issued by
May 23. the Commouwealth to such executor or administrator in his
individual capacit5^ I assume that your question appHes to
bonds registered in the name of the decedent as well as to those
registered in the name of an executor or administrator as such.
Your authority to transfer bonds is derived from section 74
of chapter 6 of the Revised Laws, which provides that : —
The treasurer may . . . issue in substitution for mutilated, defaced or indorsed bonds presented to him other bonds of like or equivalent issues.
There can be no doubt that in the case of bonds registered m the name of a deceased person, or of, an executor or admin- istrator as such, that the executor or administrator is the proper person to endorse them. You may, therefore, in the ordinary case legally register bonds so endorsed in the name of the trans- feree, upon satisfying yourself that the endorser is the executor or administrator. In my opinion, your duties in this regard are analogous to those of corporations with respect to the transfer of their corporate shares. It has been held that a corporation must be presumed to know what are the legal powers of an exec- utor, but not the particular provisions of any will; nor is it re- quired to determine whether or not the executor is acting properly. Hutchins v. State Bank, 12 Met. 421 (423). When a transfer of its stock is presented to a corporation, it is bound at its peril to see that it is a genuine transfer by one who has
DANA M ALONE, ATTORNEY-GENERAL. 105
power of disposition over the stock; but when a transfer by one who has the full power to transfer it is presented, the corpora- tion has the right to act upon it, and it is not its duty to in- :[mTe into the purposes of the parties or to investigate the ques- don whether that transaction is in good faith or is fraudulent. docker v. Old Colony R.R. Co., 137 Mass. 417.
In the case of an executor I think it would be wise, although lot absolutely necessary, to satisfy yourself that there is noth- ng in the will restricting his general authority as executor. In he absence of any such restriction upon the authority of an jxecutor, and in any case without investigating the authority of m administrator, you may properly transfer bonds duly en- lorsed, without regard to the person to w'hom the endorsement uns.
Civil Service — Vendor of Intoxicating Liquors —
Agents.
^he words, "vendor of intoxicating liquors," as used in R. L., c. 19, § 16, relating to the civil service, which provides in part that "no vendor of intoxicating liquors shall be appointed to or retained in any office, appointment or em- ployment to which the provisions of this chapter apply," are applicable to one who either as principal or agent sells intoxicating liquor, and would include persons who drive about among the customers of their employers and deliver intoxicating liquors and collect money from such customers, and who make sales upon their routes, as well as persons who are employed as bar- tenders.
You request me to define the words "vendor of intoxicating xothe
,, ,. . -.r>pi -I r\ p ^ -n> • 1 Civil Service
iquors, as used in section 16 oi chapter 19 or the Revised Commission, ^aws, relating to the civil service. That section is as follows: — May^.
No person habitually using intoxicating liquors to e.xcess and no vendor f intoxicating liquors shall be appointed to or retained in any office, ppointment or employment to which the provisions of this chapter apply.
The only real question as to the meaning of the word as used 1 this statute is whether or not it includes an agent as well as a rincipal. A vendor is "the seller; one who disposes of a thing 1 consideration of money." (Bouvier's Law Dictionary.) The endor of land, as distinguished from the grantor, is he who
I0() OPINIONS OF THE ATTORNEY-GENERAL.
negotiates the sale and becomes the recipient of the considera- tion, though the title comes to the vendee from another source and not from the vendor, Rutland v. Brister, 53 Miss. 683, 685. Thus, one who contracts to sell land which he does not own is a vendor. Of course the vendor is not in such case necessarily the agent of the grantor. The important thing is, however, that the vendor sells that to which he has no title.
An early draft of the civil service bill used the words " person who holds a license for the sale," instead of the word "vendor." The bill as enacted contained the word "vendor," as at present. This clearly indicates an intention on the part of the Legislature to enlarge the restriction, and I am of opinion that the restric- tion so enlarged includes agents for the sale of intoxicating liquor, as well as principals.
A vendor of intoxicating liquor would be, therefore, one who, either as principal or agent, sells intoxicating liquor. Persons, therefore, who in driving around among the customers of their employers and delivering beer, ale or other intoxicating liquors, collect money from these customers to whom the goods have been sold, and also sell to any on their routes who may wish to be supplied, and collect money on such sales, also persons who are employed as bartenders but who are not owners of liquor businesses, are, in my opinion, vendors of intoxicating liquors within the meaning of section 16 of chapter 19 of the Revised Laws.
Clerks of Courts — Fees for Naturalization — County
Accounts.
Clerks of courts having jurisdiction to naturalize aliens as citizens of the United States, under the act of Congress of June 29, 1906, are not entitled to re- tain for their own use one-half of the naturalization fees received by them under such act, and all such fees should be paid over to the treasurer of the county for which such court is constituted.
Controller ^'^u ask my opinion as to whether clerks of courts can retain
AcSii'ts' ^or their own use and benefit one-half of the naturalization fees May 24. undcr the naturalization law of the United States and the laws
of this Commonwealth.
DANA MALONE, ATTORNEY-GENERAL. 107
R. L., c. 165, § 37, provides: —
The annual salaries of clerks (of courts) shall be in full compensation or all services rendered by them in the civil or criminal courts, to the ;ounty commissioners, in making any returns required by law or in the )erformance of any other official duty except for such clerical assistance IS may be allowed under the provisions of the following section.
Section 31 of said chapter is as follows: —
The clerks of the courts in the several counties, and of the supreme udicial court and the superior court in the county of Suffolk, shall keep . cash book, which shall be county property and shall be and remain a )art of the records of the courts, in which they shall keep accounts of all ees received by them for their official acts and services, including fees or copies which they are not required by law to furnish, fees and money n proceedings relative to naturalization or for naturalization certificates, ,nd all fees and money of whatever description or character received by hem, or by any assistant or other person in their offices or employment, or any acts done or services rendered in connection with their said iffices, and shall on or before the tenth day of each month pay over to he treasurer of the county, or to such other officer as is entitled to eceive them, all fees received during the preceding calendar month, and hall render to him an account thereof under oath.
The United States Naturalization Act of June 29, 1906 (34 J. S. St. at Large, 596), provided in section 3 as follows: —
That exclusive jurisdiction to naturahze afiens as citizens of the United itates is hereby conferred upon the following specified courts: United States Circuit and District Courts now existing . . . ; also all courts 'f record in any state or territory now existing, or which may hereafter •e created, having a seal, a clerk, and jurisdiction in actions at law or quity, or law and equity, in which the amount in controversy is unlimited.
It is further provided in section 13 of said act, as follows: —
That the clerk of each and every court exercising jurisdiction in natural i- ' ation cases shall charge, collect, and account for the following fees in ach proceeding: . . . The clerk of any court collecting such fees is ereby authorized to retain one half of the naturalization fees collected [•y him in such naturahzation proceeding; the remaining one half of the aturafization fees in each case collected by such clerks, respectively, shall e accounted for in their quarterly accounts which they are hereby required
108 OPINIONS OF THE ATTORNEY-GENERAL.
to render the Bureau of Immigration and Naturalization, and paid ovei to such bureau within thirty days from the close of each quarter in each and every fiscal yeai- ... In addition to the fees herein required, the petitioner shall deposit with and pay to the clerk of the court a sum ol money . . . ; provided that the clerks of courts exercising jurisdictioc in naturalization proceedings shall be permitted to retain one half of the fees in any fiscal year up to the sum of three thousand dollars.
You inquire: —
1. Have the clerks of courts heretofore referred to the right tc retain for their own use one-half the naturalization fees receivec by them under the naturalization laws of the United States?
2. If they have not such right, to whom should said one-hali be paid by said clerks?
You will observe that section 37 of chapter 165 of the Revisec I Laws provides that salaries of clerks shall be in full compensa tion for all services rendered by them in the civil or crimina courts; and that section 31 of said chapter provides that the clerks of courts in the several counties shall keep a cash booli in which they shall keep accounts of all fees received by then for their official acts and services, including fees and money u proceedings relative to naturalization or for naturalization cer tificates, and all fees and money of whatever description or char acter received by them, etc., and shall on or before the tentt day of each month pay over to the treasury of the county al fees received during the preceding calendar month, and shal render to him an account thereof under oath.
It seems to me clear, therefore, that the clerks of courts can- not retain for their own use one-half of said naturalization fees received by them under the naturalization laws of the United States, as their duties and powers are prescribed by the laws of this Commonwealth, and they perform the duties required by the United States naturalization act by virtue of their oflSces as clerks of courts of this Commonwealth and not through ap- pointment by the United States, and our law specially requires that all naturalization fees be paid over to the treasurer of the county.^
1 But see County of Hampden, 207 Mass. 167.
DANA MALONE, ATTORNEY-GENERAL. 109
ONSTITUTIONAL LaW — CiTIES AND ToWNS — HARVEST AND
Sale of Ice — Taxation.
proposed bill, entitled "An Act to authorize the city of Holyoke to harvest and sell ice at wholesale," which in part provides for the raising of money by tax- ation to directly defray the cost of the carrying on by such city of the business of harvesting and selling ice, or for the repayment of loans made for such purpose, is unconstitutional, as authorizing the raising of money by taxation for a purpose not public in its nature.
You request my opinion as to the constitutionality of a bill q^^^^^^^,^ bich has passed the Senate and the House of Representa- jy^e'ig v^es, entitled "An Act to authorize the city of Holyoke to irvest and sell ice at wholesale." This bill authorizes the ty of Holyoke to " cut and harvest ice from any great pond or /er in its limits and from any ponds or reservoirs used by the unicipality as a water supply, and to store and sell the same
wholesale to the inhabitants of the city." It authorizes the king of land or easements and the raising of money by taxa- )n or by loan for the purpose of carrying out its provisions. The principal question raised by your inquiry is whether or •t the cutting and harvesting of ice and the storing and sale
the same at wholesale to the inhabitants of a municipality is public purpose, for which money may be raised by taxation. 16 precise question has not been passed upon by our courts, •r, so far as I can discover, by the courts of any other State. ' le justices of the Supreme Judicial Court, however, have been lied upon to pass upon analogous questions. In the Opinion
the Justices, reported in 150 Mass. 592, the justices advised e House of Representatives that under the Constitution the ;gislature has power to authorize cities and towns to manu- : sture and distribute gas or electric light for use in their public i'eets and buildings and for sale to their inhabitants. Long 1 fore that opinion was given it was held that the " supplying < a large number of inhabitants with pure water is a public irpose." Lumbard v. Stearns, 4 Cush. 60.
On the other hand, in an Opinion of the Justices to the House ( Representatives, reported in 155 Mass. 598, a majority of ^e justices expressed the opinion that the Legislature could not
^
110 OPINIONS OF THE ATTORNEY-GENERAL.
under the Constitution authorize cities and towns to buy coal and wood for the purpose of sale to their inhabitants for fuel and in an Opinion of the Justices to the House of Representa- tives, reported in 182 Mass. 605, the justices were unanimously of the opinion that in the absence of an extraordinary emer- gency it was not within the constitutional power of the Legis- lature to enact a law conferring upon cities and towns authoritj to establish and maintain municipal fuel or coal yards or to pur chase coal and wood for the purpose of selling it generally t( their inhabitants or others.
The line of distinction between these two classes of cases wa; pointed out in the opinion last referred to. It was there saic (p. 608) : —
The business of selling fuel can be conducted easily by individuals ii competition. It does not require the exercise of any governmenta function, as does the distribution of water, gas and electricity, whicl involves the use of the public streets and the exercise of the right ol eminent domain. It is not important that it should be conducted as i single large enterprise with supplies emanating from a single source, as is required for the economical management of the kinds of business lasl' mentioned. It does not even call for the investment of a large capital but it can be conducted profitably by a single individual of ordinar} means.
To my mind this language is as applicable to the business oi selling ice to the inhabitants of a city or town generally as t( the business of selling fuel to such inhabitants, and indicate: that the conducting of such a business is not a public purpose for which money may be raised by taxation. Moreover, when il is considered that the bill authorizes the sale of ice at wholesale only, it is even more apparent that the purpose is not public.
My conclusion, therefore, is that the bill concerning whicl you request my opinion, authorizing, as it does, the raising o money by taxation to provide directly for the cost of carrying on the business of harvesting and selling ice or for the repay- ment of loans made to provide therefor, is unconstitutional, as authorizing the raising of money by taxation for a purpose nol public in its nature.
DANA MALONE, ATTORNEY-GENERAL. Ill
Attorney-General — Legislative Committee — Prepara- tion AND Draft of Proposed Legislation.
It is not within the scope of the duties of the Attorney-General to draft proposed legislation, or to advise a committee of the Legislature except upon bills actually pending before it; but if so requested he may, in his discretion and as matter of courtesy, submit a draft of a bill for the consideration and assistance of such committee.
Certain questions have been orally and informally referred c°^^ittpp to me with respect to a so-called merger of the Boston & Maine o° Railroads. Railroad with the New York, New Haven & Hartford Railroad ^'^^■ Company, and certain legislation designed to prohibit or con- trol such merger has been submitted for my consideration.
I desire to point out to your committee that there is at pres- ent before me no evidence whatever of the actual and existing relations of the two companies above mentioned, except the statement of President Mellen that "certain interests identified with my company have placed the control of the Boston & Maine Railroad where my company can have it when they get the power to take it," and therefore that the use of the word "merger" in connection with such transactions as may have taken place between such corporations or the individual stock- holders thereof is as yet unwarranted.
It would appear, however, that at present the effect of the action of the New York, New Haven & Hartford Railroad Com- pany in the premises, and the object which that corporation is now seeking to attain, is to establish a control of the Boston & Maine Railroad through interests friendly to the New^ York, New Haven & Hartford Railroad Company by means of the purchase of the stock of the Boston & Maine Railroad sufficient to enable the New York, New Haven & Hartford Railroad Company to elect such directors as it may desire to place in ofiice, who might manage and operate the Boston & Maine Railroad in the interest of the corporation by whose stock they were elected, and to the possible disadvantage of the corpora- tion of which they are officers and of the people of the Com- monwealth.
St. 1906, c. 463, part 11., § 57, provides in part that "a rail-
112 OPINIONS OF THE ATTORNEY-GENERAL.
road corporation . . . shall not directly or indirectly subscribe for, take or hold the stock or bonds of or guarantee the bonds or dividends of any other corporation;" and actions brought under this section against the New York, New Haven & Hart- ford Railroad Company to test the legality of the means by which that corporation controls the stock in certain Massachu- setts street railway companies are now pending before the Supreme Judicial Court. No evidence has come to my atten- tion of any violation of this section of the statute, arising out of the attempted control of the Boston & Maine Railroad, nor is there such evidence in the report of the hearing before your committee.
Further legislation drawn by me and based upon the sugges- tions contained in His Excellency's message of June 5, 1907, now before your committee, is submitted herewith, as contain- ing in proper legal form the views of His Excellency in the premises. In response to a vote of the committee, I also annex hereto a draft of a bill which in my judgment is sufficient, by reason of its provisions, to prevent the control of a corporation chartered by the Commonwealth from passing, through the purchase of its stock, into the hands of corporations or individ- uals less directly within and subject to the jurisdiction of the Commonwealth, and which in my opinion is a constitutional exercise of the powers of the Commonwealth in the premises.
Strictly, it is not within the scope of the duties of the Attor- ney-General to draft proposed legislation, nor, indeed, to advise a committee of the Legislature except upon such bills as may be actually pending before it. In the present situation, however, I have prepared a draft of a bill for your consideration, not only as a matter of courtesy, but because I desire to render to your committee such assistance as is in my power in safe- guarding the interests of the Commonwealth. Should the Legislature, or either branch of it, or your committee, by a formal inquiry in writing, seek my opinion and advice upon any question presented by or relating to any legislation, it will then become my duty to reply thereto as fully as circumstances may require.
DANA MALONE, ATTORNEY-GENERAL. 113
•TATE Highway — Alteration of Location — Abandonment.
portion of an existing State highway which, under a proposed plan for altera- tion of location under R. L., c. 47, §§ 7 and 8, does not fall within the limits of such highway as established by such alteration, may be abandoned.
The Massachusetts Highway Commission requests my opinion To the 3 to whether a portion of the State highway in the town of Highway
.,''., Commission.
rimfield may be abandoned by the commission, in view of the . i^o^
roposed laying out and taking charge of a new State highway mning substantially parallel to the portion proposed to be bandoned.
The statute in question is R. L., c. 47, §§ 7 and 8, which rovide as follows : —
Section 7. Said commission may, with the concurrence of the mayor id aldermen of a city or the selectmen of a town, alter the location of a ate highway in such city or town by filing a plan thereof and a certificate lat said commission has laid out and taken charge of said state highway, i altered in accordance with said plan, in the office of the county com- issioners for the county in which said highway is situated, and by fiUng copy of the plan or location as altered in the office of the clerk of such ty or town. ♦
Section 8. Said commission may, with the concurrence of the mayor id aldermen of a city or the selectmen of a town, abandon any land or irt thereof, or rights in land which have been taken or acquired by it in ich city or town by executing, acknowledging and recording a deed lereof accompanied by a plan of survey which shall be recorded therewith, lid abandonment shall revest the title to the land or rights abandoned I the persons, their heirs and assigns, in whom it was vested at the time " the taking, and may be pleaded in reduction of damages in any suit lerefor on account of such taking.
These sections were originally Acts of 1900, c. 475, §§ 1 and It is obvious that the two sections must be read together, id together provide for the alteration of an existing location id the abandonment of that portion thereof which is not to be ibjected to the easement in favor of the public in the new cation. If this be so, the only question to determine is whether ' not the proposed action by the commissioners will or may be 1 alteration of the location within the meaning of section 7.
June 25.
]\\ OPINIONS OF THE ATTORNEY-GENERAL.
If the proposed plan contemplates the laying out and taking charge of a wholly new piece of State highway, I think the existing one cannot lawfully be abandoned. But it seems to me that the plan can be properly carried out as an alteration of the existing highway. The proposed new highway will apparently run for a substantial distance along a route which, though en- tirely distinct from the present highw^ay, will render its use superfluous.
I think these facts are sufficient to make the new location an alteration as defined by Knowlton, C.J., in Bennett v. Wellesley, 189 Mass. 308, at pp. 318, 319.
An opinion of my predecessor, dated Sept, 6, 1902, and re- ferred to by your commission, was in answer to the question whether or not a State highway might be wholly abandoned by the commissioners and surrendered to a town to be under the sole control of the town, and has therefore no relation to the question of alteration now under discussion.
I am therefore of opinion that the portion of the location of the present State highway which will not fall within the limit established by the new plan may be abandoned by the Highway Commission, provided that the new portion be laid out and taken charge of as an alteration of the location of the existing highway, in accordance with the provisions of sections 7 and 8 of chapter 47.
Pauper — Settlement — Assessment of Taxes.
Under the provisions of R. L., c. 80, § 1, cl: 5, providing that "A person of the age of twenty-one years who resides in any place within this Commonwealth for five consecutive years and within that time pays all state, county, city or town taxes duly assessed on his poll or estate for any three years within that time shall thereby acquire a settlement in such place," it is necessary not only that the required taxes should be paid but also that the assessments thereof should be made within such period.
i^ton'dentor' You rcqucst my opinion as to whether Robert S. Chute, a state Adult pauper, has acquired a legal settlement in Lynn under the pro- .luiy 2. visions of R. L., c. 80, § 1, cl. 5, which is as follows: —
A person of the age of twenty-one years who resides in any place within this coninionwealth for five consecutive years and within that
DANA MALONE, ATTORNEY-GENERAL. 115
ime pays all state, county, city or town taxes duly assessed on his poll r estate for any three years within that time shall thereby acquire a Bttlement in such place.
The facts of the case are these: A pauper, aged thirty-nine, •as committed to the Foxborough State Hospital Nov. 2, 1905. [e had resided in Lynn continuously since 1902, and had been ssessed a poll tax for the years 1893, 1894 and 1897, which ad been paid May 10, 1894, Feb. 19, 1895, and Aug. 15, 1898, ispectively.
The question is, whether the statute requires that the same ve-year period which embraces the three dates of payment lUst also embrace the three dates of assessment, even though le three assessments were made within a five-year period.
It is settled by the decisions that the pauper must have lived I a city or town during the whole of the three years for which le taxes were assessed. Taunton v. Wareham, 153 Mass. 192. he pauper in the present case having paid between Aug. 15, S93, and Aug. 15, 1898, the taxes assessed to him for 1893, S94 and 1897, has he complied with the express requirement "' the statute that he shall have paid all "taxes duly assessed n his poll or estate for any three years within that time"? an the three years, 1893, 1894 and 1897, be considered within 16 five-year period from Aug. 15, 1893, to Aug. 15, 1898? he taxation year is from May 1 to May 1. Southboroiigh v. (arlbormgh, 24 Pick. 166. The taxation year in 1893 began on [ay 1, and therefore that year is not wholly Avithin the period 2ginning with Aug. 15, 1893. Under a strict construction, it innot be held that the taxes assessed in the present case were >r three years within a period of five years. It has long been 'ttled that the five years' residence and the five years of taxa- on must be coincident. Southboroiigh v. Marlborough, supra.
Prior to 1898 the Attorney-General gave an opinion that, ider Pub. Sts., c. 83, § 1, cl. 5, if three taxes assessed for three ?ars within a period of five years were paid, it was immaterial lat payment was not made within a five-year period. (See
Op. Atty.-Gen. 519.) The law was amended by Acts of 1898,
425, § 1, so as to require that the three taxes assessed within
110 OPINIONS OF THE ATTORNEY-GENERAL.
the five-year period should also be paid within a period of five years. It seems fairly clear that it is the intention of the Legis- lature, by the act of 1898, to provide that the required number of taxes should be assessed and paid within one five-year period of residence.
I am therefore of opinion that the pauper in question did not acquire a legal settlement in Lynn under the provisions of the statute above quoted.
Automobiles — Registration by Dealer — Expiration of
Registration.
The provision of St. 1903, c. '473, § 1, as amended by St. 1907, c. 580, § 1, that "the registration of every automobile or motor cycle shall expire upon the first day of January in each year," is applicable not only to automobiles or motor vehicles which are owned by single individuals, but also to similar vehicles when owned or controlled by dealers.
Massachusetts The Massachusctts Highway Commission requires my opinion commfssion. upou a questiou arising under St. 1907, c. 580, which is entitled ju^V "An Act relative to automobiles and motor cycles." Your
communication states that : —
In section 1 of this act, in the last sentence, it is stated "The registra- tion of every automobile or motor cycle shall expire upon the first day of January in each j^ear." Section 2 of the act relates to the registration of motor vehicles owned or controlled by manufacturers or dealers. In this section it is not specifically stated that the registration of such ma- chines shall expire annually, and the commission is in doubt whether or not it is intended by the law that the registration certificates shall so expire.
St. 1907, c. 580, § 1, amends St. 1903, c. 473, § 1, by adding at the end of the section the words, "The registration of every automobile or motor cycle shall expire upon the first day of January in each year." The section, before amendment, pro- vided for the registration of automobiles and motor cycles, but contained no provision with regard to the expiration of the registration required; and section 2 of chapter 580 of St. 1907 amended section 2 of chapter 473 of St. 1903, by substituting the word "fifteen" for the word "ten," so that the amended section reads as follows : —
DANA MALONE, ATTORNEY-GENERAL. 117
Everj' manufacturer of or dealer in automobiles or motor cycles maj^, instead of registering each automobile or motor cycle owned or controlled by him, make application upon a blank provided by said commission for a general distinguishing number or mark, and said commission maj'', if satisfied of the facts stated in said application, grant said application, and issue to the applicant a certificate of registration containing the name, place of residence and address of the appUcant, and the general distinguishing number or mark assigned to him, and made in such form and containing such further provisions as said commission may determine; and all automobiles and motor cycles oAvned or controlled by such manu- facturer or dealer shall, until sold or let for hire or loaned for a period of more than five successive days, be regarded as registered under such general distinguishing number or mark. The fee for every such certificate of registration shall be fifteen dollars.
The question submitted is not free from difficulty. It is to be observed that section 2, above quoted, does not contain any provision whatever for the expiration of the registration of auto- mobiles or motor cycles owned or controlled by a manufacturer or dealer; and it might fairly be contended that such registra- tion continued indefinitely, notwithstanding the provision al- ready referred to which was added to section 1 of chapter 473 of St. 1903. Upon the whole, however, I am inclined to believe that the two sections must be read together, and that the regis- tration referred to in section 2 is the registration established by section 1, which expires annually upon the first day of January n each year.
The provisions of section 2 are intended to provide an alter- lative for a dealer who owns or controls many automobiles or Dotor cycles, so that he may by a single registration "register ^ach automobile or motor vehicle owned or controlled by him." There is nothing in the section to indicate that the Legislature ntended to permit a dealer, by a single registration and the )ayment of a single fee of $15, permanently to register all such lutomobiles or other motor vehicles which he might own or control in the course of his business.
I am therefore of the opinion that the commission should hold hat the amendment of section 1 of chapter 580 of St. 1907, — 'The registration of every automobile or motor cycle shall
118 OPINIONS OF THE ATTORNEY-GENERAL.
expire upon the first day of January in each year," — is appli- cable not only to automobiles or motor vehicles which are owned by private individuals, but also to similar vehicles when owned or controlled by dealers.
Member of Legislature — Eligibility for Other Office — Examiner of Private Bankers.
A member of the Legislature for the session of 1907 is ineligible for appointment to the position of examiner of persons, partnerships, associations or corpora- tions engaged in private banking, created by St. 1907, c. 377, § 4.
To the Bank J liavc vour letter of the 16th, in which you inquire in refer-
juiy'^is 6^^^^ ^o the appointment of a member of the present Legislature
as a clerk in your department, whose especial duty is to be to examine private bankers, under the supervision of your depart- ment, as required by chapter 377 of the Acts of 1907.
Section 21 of chapter 3 of the Revised Laws provides that: —
No member of the general court shall, during the term for which he is elected, be ehgible to any office under the authority of the commonwealth created during such term, except an office to be filled by vote of the people, i
Section 4 of chapter 377 of the Acts of 1907 reads as follows:
The bank commissioner shall, at such times as he may deem expedient, examine, either personally or by a competent examiner whom he shall appoint, every such person, partnership, association or corporation, and thoroughly inspect and examine its affairs to ascertain its financial con- dition and whether it has complied with all provisions of law applicable thereto. The proper charges incurred by reason of any such examination shall be paid by the person, partnership, association or corporation* concerned.
The law contemplates an examination either by yourself per- sonally or by a competent examiner whom you shall appoint. Your right to so appoint was given you by said chapter 377 of the Acts of 1907. The Legislature intended by section 21, above quoted, to prohibit the appointment of a member of thei General Court to any office which was created during the term
DANA MALONE, ATTORNEY-GENERAL. 119
for which he was elected. It seems to me that section 4, above quoted, creates an office which cannot be filled by such member. I note you say in your letter that he would perform other duties, of a clerical nature, in your department. You would, however, be obliged to appoint him an examiner if he should examine the private bankers that you name, for otherwise he would have no authority in the premises; and I must therefore reply that such an appointment would be contrary to law.
A similar inquiry was submitted to the late Attorney-General Knowlton in reference to an appointment to the office of in- surance examiner. The reply was in the negative, and I quote from the opinion the following: —
The obvious purpose of this statute is to remove from a member of the Legislature any temptation to be influenced in his vote by reason of the possibility that he may be a candidate for the places created by the Legis- lature of which he is a member. (1 Op. Atty.-Gen. 347.)
In this view of the law I concur, and am of the opinion that it is applicable to this case.
Veteran in the Service of the Commonwealth — Retire- ment.
A. veteran of the civil war employed by the Metropolitan Park Commission as a police officer is "in the service of the Commonwealth" within the meaning of St. 1907, c. 458, which provides in part that "a veteran of the civil war in the service of the Commonwealth, if incapacitated for active duty, shall be retired from active service with the consent of the governor."
' In reply to your communication of July 24, inquiring whether to the Metro !)r not a veteran of the civil war emploved bv the Metropolitan Commisaion.
. ' . "^ . 1907
Park Commission as a police officer is "in the service of the Ju'y si. Commonwealth," within the meaning of St. 1907, c. 458, which provides in part that "a veteran of the civil war in the service 3f the Commonwealth, if incapacitated for active duty, shall be retired from active service, with the consent of the governor, at one half the rate of compensation paid to him when in active service, to be paid out of the treasury of the Commonwealth,"
120
OPINIONS OF THE ATTORNEY-GENERAL.
I have to advise you that in my opinion a veteran so employed is engaged in the service of the Commonwealth, within the meaning of the statute above quoted, and may be retired as therein provided. If the veteran in question is so retired, however, there seems to be no existing legislation which would authorize the assessment of the pension to which he would become entitled upon the metropolitan parks district, and the expense of such pension would therefore have to be borne by the Commonwealth, requiring a special appropriation therefor by the Legislature.
Corporation — Agreement of Association Husband and Wife.
Parties —
To the Com- missioner of Corporations.
1907 August 8.
A husband and wife may legally enter into the contract represented by an agree- ment of association for the purpose of forming a corporation under the gen- eral laws.
In reply to your communication dated Aug. 1, 1907, I advise you that in my opinion a husband and wife may legally enter into the contract represented by an agreement of association for the formation of a corporation.
Under the laws of this Commonwealth a married woman may undoubtedly enter into the contract represented by an agree- ment of association for the formation of a corporation. R. L., c. 153, § 2. She may enter into such a contract even if her husband is also a party thereto, unless by so doing she is mak- ing a contract with him. If the contract is not between the husband and wife, the fact that they are both parties to it is not objectionable. Major v. Holmes, 124 Mass. 108.
In my opinion a married woman is not contracting with her husband when she and he enter into the contract represented by an agreement of association for the formation of a corporation. The agreement of association constitutes an offer which must be accepted by the corporation before it can become binding. The formation of the corporation constitutes an acceptance of the offer made by the persons signing the agreement of association. The parties to the contract thereby formed are the corporation on the one hand and the subscribers on the other.
DANA MALONE, ATTORNEY-GENERAL. 121
That this is the true nature and effect of the agreement of issociation appears from the decisions of the court in the cases )f Atliol Mvsic Hall Co. v. Carey, 116 Mass. 471, and Hudson Real Estate Co. v. Tower, 156 Mass. 82. In the former case it vas said (p. 473) that: —
The promise of each subscriber "to and with each other," is not a ontract capable of being enforced, or intended to operate literally as , contract to be enforced between each subscriber and each other who nay have signed previously, or who should sign afterwards, nor between ach subscriber and all the others collectively as individuals. The under- aking is inchoate and incomplete as a contract until the contemplated rganization is effected, or the mutual agent constituted to represent the ssociation of individual rights in accepting and acting upon the propo- itions offered by the several subscriptions. When thus accepted, the remise may be construed to have legal effect according to its purpose nd intent, and the practical necessity of the case; to wit, as a contract 'ith the common representative of the several associates.
In advising you as above I am not unmindful of the opinion f a former Attorney-General,^ in which he said that he saw no uflBcient reason for changing what he understood —
3 have been the uniform practice of j'our department, to decline to accept husband and wife toward making up the necessary number of associates, n the ground that the agreement is a contract between each subscriber ad all the others, and that a husband and wife camiot lawfully make ich a contract with each other.
I With deference to the opinion of my predecessor, I cannot, in iew of the decisions cited, agree with his conclusion upon the uestion which you submit.
1 1 Op. Atty.-Gen. 47.
122
OPINIONS OF THE ATTORNEY-GENERAL.
To the
.Ma.ssuchusetts Highway Commission.
1907 October 25.
Public Records — Returns of Companies engaged in the Transmission of Intelligence by Electricity.
By St. 1906, c. 433, the Massachusetts Highway Commission is required to re- ceive and file the annual returns made by companies engaged in the trans- mission of intelligence by electricity within the Commonwealth, and such returns are therefore public records, under R. L., c. 35, § 6, which defines public records to be "any written or printed book or paper . . . which any officer or employee of the Commonwealth . . . has received or is required to receive for filing."
The Massachusetts Highway Commission asks my opinion as to whether or not the annual returns made by companies engaged in the transmission of intelHgence by electricity within the Commonwealth, which are filed with the commission in accordance with the provisions of St. 1906, c. 433, § 8, are to be considered as public records, to the extent that they are to be open to the inspection of the public.
St. 1906, c. 433, § 8, is as follows: —
Every company engaged in the business of the transmission of intelli- gence by electricity within the Commonwealth shall annually, on or before the first day of October in each year after the year nineteen hundred and six, submit to said commission a report of its doings for the year ending on such date or dates preceding as said commission may designate, which report shall be in such form and detail as the commission may from time to time prescribe, and shall be called the "Annual Return". Such return shall be sworn to by the treasurer and by th,e chief accounting officer of such company, and shall include a statement of its business, receipts and expenditures within the Commonwealth during the year, its dividends paid out and declared, the amount of its authorized capital and its in- debtedness and financial condition, on such date or dates as said com- mission may designate.
Section 9 provides for a penalty for failure to make the annual return required by the preceding section. R. L., c. 35, § 5, provides that: —
In construing the provisions of this chapter and other statutes, the words "pubhc records" shall, unless a contrary intention clearly appears, mean any written or printed book or paper . . . which any officer or employee of the commonwealth or of a county, city or town has received or is required to receive for filing.
DANA MALONE, ATTORNEY-GENERAL. 123
Section 17 of the same chapter provides that: —
Every person who has the custody of any pubhc records shall, at •easonable times, permit them to be inspected and examined by any person, under his supervision, and shall furnish copies thereof on the )aymcnt of a reasonable fee.
The provisions of R. L., c. 35, § 5, above quoted, were consid- ered in an opinion of the Attorney-General, dated Sept. 22, 1902, and addressed to the Insurance Commissioner, which lealt with the annual returns required to be filed by insurance companies under the provisions of R. L., c. 118, § 96. It is here stated that : —
This legislative definition cannot be held to include within its intention ivery paper which an officer of the Commonwealth receives and files. it must be limited to such as he is required by law to so receive for filing, ^ny other construction must be prejudicial to the rights and interests )f the Commonwealth or its officers, and, indeed, of parties or persons naking communications with such officers.
The original act for which the provision of the Revised Laws is a sub- stitute, St. 1897, c. 439, § 1, called a pubhc record any paper which a mblic officer is required by law to receive, or in pursuance of any such equirement has received for fifing. The compilers of the Revised Laws lave not preserved the distinction between a paper which an officer is •equired by law to receive and one which he receives for his own con- /enience. The existing qualification for the purpose of definition makes I test of the requirement to receive for filing, and any paper so received 'alls within the definition of a public record. (2 Op. Atty.-Gen. 381.)
I can see no distinction, for the purposes of this inquiry, )etween the returns filed with the Insurance Commissioner by nsurance companies and those filed w-ith the Massachusetts highway Commission by telephone companies; and, since it ippears that the Massachusetts Highway Commission is re- juired to receive and file the returns provided for in section 8, iuch returns must, in my opinion, be deemed to be public ■ecords, and as such open to the inspection of the public.
124 OPINIONS OF THE ATTORNEY-GENERAL.
State Board of Charity — Minor Child — Religious Faith — Adoption — Discharge.
St. 1905, c. 464, § 1, which in part pro^ades that "No minor child in the care, or under the supervision of any state board of charity, or of any state commis- sion, or state board of trustees, shall be denied the free exercise of the re- ligion of his parents . . ." does not affect the authority of the State Board of Charity in its discretion to discharge a minor child committed to its custody into the custody of adopted parents, if it appears to such Board that the objects of the commitment have been accomplished and that the inter- ests of the child will be best served by such discharge, notwithstanding that the religious belief of such adopted parents differs from that of the natural parents of such child.
_ . The State Board of Charity informs me that it has received
10 tne ^
o/cha^rfty.*^ f^om Jcssc M. Puriiiton and Clara F. Purinton "a petition Novemb'eris. foF the discharge of one Kate Jamrock to their care;" and I am requested to give my opinion as to the bearing of the provisions of chapter 464 of the Acts of 1905 on the powers of the Board with respect to the granting of the petition in question. I am further asked whether there is any other law affecting its action and power of discharge in said case.
Section 1 of chapter 464 of the Acts of 1905 reads as follows:
No parents, or surviving parent; of any minor child in the care or under the supervision of the state board of charity, or of any state commission, or of any state board of trustees, shall be denied the right of any child of theirs to the free exercise of the religious ^belief of his parents and the liberty of worshipping God according to the religion of his parents, or surviving parent, or of the religion which his parents professed, if they are both deceased; and no minor child in the care, or under the super- vision of any state board of charity, or of an)^ state commission, or state board of trustees, shall be denied the free exercise of the rehgion of his parents, or of his surviving parent, or of his parents if they are both de- ceased, nor the liberty of worshipping God according to the religion of his parents, whether living or deceased.
I regard the question as to this statute as settled by the case of Purinton et al. v. Jamrock, 195 Mass. 187, 199, in which the court say : —
It is undoubtedly the general policy of the Commonwealth to secure to those of its wards who arc children of tender years the right to be
DANA MALONE, ATTORNEY-GENERAL. 125
rought up, where this is reasonably practicable, in tlie religion of their irents. St. 1905, c. 464, § 1. But it is the right of the children that is ■oteded by this statute. The rights of the parents arc still regulated by le same principles as before. . . . The first and paramount duty is > consult the welfare of the child. The wishes of the parent as to the ligious education and surroundings of the child are entitled to weight; there is nothing to put in the balance against them, ordinarily they will • decisive. If, however, those wishes cannot be carried into effect ithout sacrificing what the court, sees to be for the welfare of the child, ey must so far be disregarded. The court wall not itself prefer one lUrch to another, but will act without bias for the welfare of the child ider the circumstances of each case. . . . The parents' religion is ima facie the infant's rehgion, and the infant should be brought up in at reUgion and protected against disturbing influences from persons a different religious faith; but the infant's weKare must be first of all garded, and its requirements must be treated as paramount.
Further, the court say : —
This child has been for over four years in the family of the petitioners; cy were found to be suitable persons to have her custody and education; strong affection had growai up between her and them; her interest will
greatly jiromotcd by the adoption.
In advising you in this matter, I am therefore obhged to ^fer to the opinion of our highest court, and to say that the neral pohcy of the law as to the rights of parents has not been anged by said statute, but the statute evidently intended to
I ovide that the child should not be denied the free exercise the religion of her parents when she is of sufficient under-
;mding to choose for herself. As to the final paragraph of said opinion, which reads, —
We have treated the questions arising upon these exceptions as if the
< oct of this decree of adoption would be to entitle the petitioners at
< EC to the custody and control of the child. But in this case she is still i the custody of the State Board of Charity, and apparently will so 1 Qain until she shall come of age, or that Board shall consider the object ( the conmiitmcnt accomplished, —
i IS entirely within the discretion of the Board to keep the child i its custody until the child shall become of age, or the Board
126
OPINIONS OF THE ATTORNEY-GENERAL.
shall consider the object of the commitment accomplished. It the Board should in their discretion decide that the object of the commitment has been accomplished, and vote to discharge the child, the adopted parents, being the petitioners, would acquire the custody and incur the responsibility of the parent? in respect to such child.
The court seems to regard the whole matter as entirely withir the discretion of the Board, taking into consideration the wel- fare of the child; and I know of no other law affecting tht Board's power to discharge in this case.
To the
Massachusetts District Police.
1907 November 14.
Manufacturing Establishment — Employment of ]\Iinor^ OR Women — Textile Goods — Knitting.
A manufacturing establishment in which goods are made by the process of knittini is an estabhshment "engaged in the manufacture of textile goods," withii the meaning of R. L., c. 106, § 27, as amended by St. 1907, c. 267, pro^idin; that "No person and no agent or officer of a person or corporation engagec in the manufacture of textile goods shall employ any minor under eighteei years of age or any woman, before six o'clock in the morning or after si; o'clock in the evening."
You require my opinion as to whether or not a manufacturing establishment in which goods are made by the process of knit- ting is to be considered as a textile factory, as referred to ii chapter 267 of the Acts of 1907.
You do not set forth the nature of the "goods" manufac- tured, but I assume that such goods in the raw material an textile materials, such as wool, flax, silk, cotton or hemp, anc that my opinion is desired as to whether or not the process b} which such materials are converted into manufactured goodj serves to distinguish such goods when completed from textih fabrics.
St. 1907, c. 267, amends R. L., c. 106, § 27, so as to read a^ follows : —
No person, and no agent or officer of a person or corporation engaget in the manufacture of textile goods, sliall employ any minor under eighteei j^ears of age, or an\ woman, before six o'clock in the morning or afte; six o'clock in the evening. Whoever violates the provisions of this sectioi
DANA MALONE, ATTORNEY-GENERAL. 127
shall be punished by a fine of not less than twenty nor more than fifty dollars for each offence.
I The word "textile" as an adjective is defined to be "of or
I pertaining to weaving. Woven, or capable of being woven;
' 'ormed b\^ weaving: as, textile fabrics; textile materials, such as .vool, flax, silk, cotton." The term "textile fabrics," which
I nay be regarded as synonymous with the words "textile ^oods," as used in the statute above quoted, has been defined :o include those fabrics woven, as carpets, or capable of being
, voven or formed by weaving, and the noun "textile" to be a abric which is woven or may be w^oven, — a fabric made by
[ veaving. See Wood v. Allen, 111 la. 97, 100. Such appears to )e the generally accepted definition.
I am of opinion that the process of knitting is to be con- lidered as a form of weaving, if th6 material used is a textile naterial. So the word is defined as meaning, "To w'eave by coping or knotting a continuous thread; form by w^orking up .•am or thread with knitting-needles into a fabric held together )y a series of knots or inter-loopings; as to knit stockings. ^ence — To form as if by knotting or weaving; put together; . ." Thus it has been held under the Constitution of Loui- .iana, which exempted capital, machinery and other property ■mployed in the manufacture of textile fabrics, that a manu- actory of fish lines, ropes and other hempen articles was an 'stablishment employed in the manufacture of textile fabrics, md the court said: "Such articles as fish lines and ropes can >nly be made by being woven from raw materials, and are hemselves textil efabrics." See Cohn v. Parker, 41 La. Ann. 194; Neiv Orleans v. Arthurs, 36 La. Ann. 98.
Although the statute is a penal one, and must be strictly con- trued, it is nevertheless my opinion that, since knitting may airly be considered as a form of weaving, and since the product f made from textile materials may be a textile fabric, and so textile goods," an establishment where the process of knitting •^ employed for the manufacture of such goods must be held to ome within the terms of the statute.
128
OPINIONS OF THE ATTORNEY-GENERAL.
To the Adjutant General. 1907 November 15.
Veteran in the Service of the Commonwealth — Retire- ment — Compensation.
Under St. 1907, c. 458, § 1, which provides that "a veteran of the civil war in the service of the Commonwealth, if incapacitated for active duty, shall be re- tired from active service ... at one-half the rate of compensation paid to him when in active service ..." a veteran so retired is not entitled to receive compensation based upon the estimated cash value of benefits in the nature of living expenses, occupancy of a dwelling house free from rent, and like privileges, in addition to the fixed salary paid to him from the treasury of the Commonwealth.
I am requested by you to define the meaning of Acts of 1907, c. 458, § 1, which provides that, —
A veteran of the civil war in the service of the Commonwealth, if incapacitated for active duty, shall be retired from active service, with the consent of the governor, at one half the rate of compensation paid to him when in active service, to be paid out of the treasury of the Commonwealth, —
as to whether or not a veteran eligible under the provisions of this statute for retirement, who has been receiving benefits in the nature of living expenses, occupancy of a dwelling house free from rent, and like privileges, in addition to the salary paid to him from the treasury of the Commonwealth, is entitled to be retired at one-half such salary plus one-half the cash value of whatever benefit he may have been receiving at the time of his application.
R. L., c. 6, § 58, provides that, —
Salaries payable from the treasury shall, unless otherwise provided, be paid on the fu-st of each month and shall be in full for all services rendered to the Commonwealth by the person to whom they are paid, —
and this section in itself, in my opinion is decisive of the ques- tion now under consideration.
House rent, living expenses and like advantages which certain employees of the Commonwealth may enjoy are given to such employees not as salary which they have a right to demand, but as privileges which the nature or place of their duties requires the Commonwealth to grant to them to secure the highest
DANA M ALONE, ATTORNEY-GENERAL. 129
egree of efficiency. Such privileges may at any time be dis- mtinued, and the employee required to provide both his own ving expenses and his own house, should such a course be )ssible without injuring the efficiency of the employee or of ly other employee who may occupy the same position. It is, moreover, most unlikely that the Legislature intended i reduce such items as living expenses, house rent and the like ■ a monetary value, and to include such value in the term compensation," without providing some means other than the aims of the employee himself for determining the exact cash [uivalent of such privileges. It must follow, I think, that the ord "compensation" is to be limited to salaries, the exact aount of which is determined by law, and may always be leedily ascertained by the Governor and Council, and does not tend to benefits or privileges received by an employee, which ay not only vary in their character, but in their value, as the ice of necessities of living rises or falls.
[ViL Service — Exemption — Clerk in the Office of State Forester — Governor and Council — Approval OF Employment.
ider St. 1904, c. 409, § 4, which authorizes the State Forester to hire such as- sistants as he may need in the performance of his duties, and to fix their salaries, "subject to the approval of the Governor and Council," such ap- proval is not equivalent to confirmation by the Executive Council within the meaning of R. L., c. 19, § 9, which exempts from the operation of the civil service law and rules "officers . . . whose appointment is subject to confirmation by the Executive Council."
Your letter of October 30 seeks my opinion upon the ciuestion to the civii lether or not the position of clerk in the office of the State nTission. )rester is within the classified civil service. November is.
St. 1904, c. 409, § 4, which relates to the State Forester, far as it is applicable to the present question, is as follows: —
The state forester is hereby empowered, subject to the approval of the 1 vernor and council, to hire such assistants as he maj'^ need in the per- '■ rmance of his duties, and to fix their salaries.
130 OPINIONS OF THE ATTORNEY-GENERAL.
Your communication then proceeds as follows : —
The question is, whether the language of section 4 of chapter 409 of th Acts of 1904, "subject to the approval of governor and council," has th same legal meaning as the language in section 9 of chapter 19 of the Re vised Laws, exempting from civil service classification officers, "whos appointment is subject to confirmation bj^ the executive council."
Persons exempt from the classified civil service are stated b, R. L., c. 19, § 9, to be in part, "judicial officers and officer elected by the people or by a city council, or whose appoint ment is subject to confirmation by the executive council or cit council of any city." The expression used in the above statute "subject to confirmation by the executive council," is inartificif and inexact, since there appears to be no case under the statute of the Commonw^ealth where an appointment is confirmed b the Council. I am, however, aware that the word "confirms tion" is now very generally used in connection with the func tion of the Council, which, under the Constitution and unde numerous statutes, is to advise with the Executive upon th matter of appointments, and to consent to such appointment when made. The Constitution of Massachusetts, in referrin to the powers of the Executive Council, speaks as follows (par 2, c. 2, § 1, art. 9): "All judicial officers, the solicitor-genera and coroners shall be nominated and Appointed by the governo by and with the advice and consent of the council; and ever; such nomination shall be made by the governor, and made a least seven days prior to such appointment." It is obviousl; to this important power and dut}^ of the Council that R. L. c. 19, § 9, has reference.
I am of opinion that the approval of the employment aiK compensation of clerks in the several departments of the Com monwealth is not an exercise of this function, even as designate( in R. L., c. 19, § 9, and is rather an approval by the Council acting with the Executive, of a scheme for proposed appoint ments and expenditures, than a confirmation of the particula appointment to be made. In the present instance the approva of the Governor and Council is an approval of such plans as an
DANA MALONE, ATTORNEY-GENERAL. 131
ontemplated by the State Forester and such expenditures as
nay result therefrom, and not a confirmation of the particular
I )ersons to be appointed to clerkships by such officer.
1 Assuming that no other valid ground for objection exists,
' herefore, I must advise you that in my opinion a clerk in the
.ffice of the State Forester is not exempt from the civil service
aw or rules, and must be held to fall within the classified civil
ervice.
Trust Compaxy — Branch Office — City or Town.
it. 1902, c. 355, § 2, providing that the Board of Commissioners of Savings Banks might authorize any trust company to maintain "a branch office in the city or town in which its main office is located," does not permit the authorization of more than one branch office in such city or town.
You ask mv opinion as to the right of trust companies to To the Bank
' ^ Coiiimis3ioner.
Qaintain more than one branch office under chapter 355 of the j^o^g^^^jJer 29 ^cts of 1902. This act reads as follows: —
Section 1. No trust company shall liereafter maintain a branch office xcept as hereinafter provided.
Section 2. The board of commissioners of savings banks may au- horize in writing snj' trust company to maintain a branch office in the ity or town in which its main office is located, for the sole purpose of eceiving deposits, paying checlcs and transacting a safe deposit business.
Section 3. This act shall take effect upon its passage.
I find that the matter was suggested to the Legislature by the savings Bank Commissioners in their report of Jan. 13, 1902, n which occurs the following: —
Another matter on which legislation may be required arises in the fact hat within a few days one trust company has established, at some dls- ance from its main offices, an office for the receipt of deposits and payment )f checks, — a course which does not meet the approval of this Board, and or which the Board claims there is no legal authority, and which is con- rar>' to the policy of the Commonwealth as evidenced in its banking laws.
I am further informed by you that the matter of authorizing nore than one branch office was called to the attention of the legislature of 1907, but no action was taken thereon.
132
OPINIONS OF THE ATTORNEY-GENERAL.
From the facts so presented to me, and from a consideration of the statute in question, I am of opinion that the Legislature contemplated the authorization of a single branch office only, and that the act does not authorize a trust company to maintain more than one branch office. I understand that the Worcester Trust Company now has three branch offices, which have been authorized by the Savings Bank Commissioners. Under these circumstances, it seems to me proper that you should call the situation to the attention of the Legislature in your annual report, although, as I have stated, it is my opinion that it was not the intention of the Legislature to permit the authorization of more than a single branch office.
Insane Person — Property in Possession of Officers of Institutions for Insane — Disposition — Cities and Towns — Commonwealth — Guardian — Public Admin- istrator.
The receipt of money belonging to public charges supported in institutions for the insane or in private families under the supervision of the State Board of Insanity, by such Board or by the ofHcers of such institutions, for safe keep- ing because such public charges are not competent to care for it, is not author- ized by any provision of law.
Money so received may not legally be deposited in a bank or trust company, with other funds, to the account of any State Board or institution for the insane.
Such money may not be applied by the Commonwealth to the payment of the expense of supporting any such public charge, during his lifetime, without the appointment of a guardian; it may, however, be received in payment for such support, upon an order by the insane person entitled thereto, given after his discharge from custody as unrecovered, although even in this case it is ad\'isable that a guardian should be appointed.
Money left in the possession of the treasurers of the several State institutions for the insane by patients who were supported prior to Jan. 1, 1904, as town charges, and who died before that date, should be paid to the overseers of the poor of the places to which such patients were chargeable, if claimed by them on account of charges for the support of such patients; or, if no such claim is made, should be paid to the public administrator of the county in which the institution is situated. Money so retained which belonged to deceased patients who were supported as State charges may be covered into the treasury of the Commonwealth.
BoardT o'f * " ^ ou Fcqucst my opinion with reference to the care and
^ i907_ ' disposition of money belonging to public charges supported in
institutions or in the care of private families under the super-
DANA MALONE, ATTORNEY-GENERAL. 133
vision of the State Board of Insanity, and passing into the Dossession of the officers of such institutions or of such State Board for safe keeping, because such pubhc charges are not competent to care for it. Your specific questions I will answer n order : —
1. May such money be legally deposited in a bank or trust company on the same account as other funds of the institution?
; No. There is no provision of law authorizing the officers of
! !uch institution or Board to receive such money. The practice
s apparently one adopted wholly for the benefit of the patient,
vithout legal authority; and funds should consequently be held,
f at all, in trust for the beneficiary, and not mingled with other
I unds.
2. May it be legally deposited in a bank or trust company on I separate account?
If there is no guardian, and the person in charge of the noney is of the opinion that the bank or trust company is a lafe depository, it may be deposited, but only as an act of kind- less to the patient; there is no legal authority therefor.
3. May it be claimed by the State in payment for support of iuch public charge, without the appointment of a guardian? If 0, by what method?
No; not prior to the death of the insane person. Although \. L., c. 87, §§ 78, 79, jjrovide for the payment of the charges or the support of insane persons by such persons if of sufficient ibility, it would not be proper for the Commonwealth or for my institution to appropriate the money of an insane person or this purpose. A guardian should be appointed, to protect he interest of the patient.
4. May it be taken by the State in payment of his support )n his order, given after his discharge as unrecovered from ■ustody as an insane person?
Yes; after a patient is discharged from the hospital he may )e treated and dealt with as an ordinary person of sound mind, rrespective of whether or not he has been discharged as "un- ecovered." It would seem, however, that money should not be eceived by the State, even on a discharged person's order.
134 OPINIONS OF THE ATTORNEY-GENERAL.
without the appointment of a guardian, if the superintendent of the institution or other person receiving the money is of opinion that the discharged person is unable to look after his affairs with reasonable prudence.
5. The treasurers of the State insane hospitals and asylums have in their possession money left by patients w'ho w-ere sup- ported prior to Jan. 1, 1904, as town charges, and who died previous to that date. . . . You ask what disposition should be made of this money. Must it be returned to the towns or can it be covered into the State treasury?
By the provisions of R. L., c. 87, § 37, the overseers of the poor of the place to w'hich the deceased was actually chargeable are entitled to take possession of all his real and personal property. Consequently, such sums should be paid to the overseers of the poor of the places to wdiich the patients were respectively chargeable, if the said overseers desire to be reim- bursed for the expenses incurred for the pauper. If there are no such charges for expenses as aforesaid, and if the person in charge of the institution, or the Board, has no knowledge of any husband, widow or heir of the deceased who should be notified, the money, if less than twenty dollars in all, should be delivered to a public administrator for the county in wdiich the institution is. See R. L., c. 138, § 18, and 1 Op. Atty.-Gen. 536. If the amount exceeds twenty dollars, and the overseers of the poor of the city or town make no claim upon it, the public administrator of the county in which the institution is situated should be notified of the facts. See R. L., c. 138, § 2. If the public administrator neglects or declines to act, the district attorney of the district in which the institution is situated should be notified. See R. L., c. 138, § 17.
6. The treasurers also have $772.47 wdiich belonged to de- ceased patients who w^ere always supported as State charges. Is it legal for this Board to receive that money, under the provi- sions of section 9, chapter 87, and section 27, chapter 81, of the Revised Laws, and how shall it proceed to do so?
Yes. Section 9 of chapter 87 of the Revised Laws provides, in part: —
DANA MALONE, ATTORNEY-GENERAL. 135
The board shall have the same powers relative to tlie state poor who ,re inmates of the institutions under its supervision and to their property s are vested in towns and overseers of the poor relative to paupers sup- lorted and relieved by towns.
Section 37 of chapter 81 provides that: —
Upon the death of a pauper who at his decease is actualh' chargeable 0 a place within this commonwealth, the overseers of the poor thereof aay take possession of all his real and personal property.
These provisions obviously give the State Board of Insanity )Ower to take the property of such deceased patients as have )een supported as State charges, for the purpose of reimbursing he Commonwealth for the sums expended for their support. Che money so obtained should be covered into the treasury of he Commonwealth.
7. The treasurers of the several institutions mentioned also lave savings bank books which belonged to patients now de- jeased, who were supported during commitment as State charges, and these deposits have been unclaimed for more than ive years. Can the State recover from these deposits the charges for the support of these patients; or, if these unclaimed deposits should be paid to the State Treasurer, under the provi- dons of section 55, chapter 113 of the Revised Laws, is there my method by which the hospitals can be reimbursed for the support of said patients?
The Board has the same right to receive the money on de- posit in a savings bank and apply the same to the indebtedness :)f the patient to the Commonwealth for his support as it has to take and apply the money on hand with the treasurers of the institutions under the provisions quoted in the preceding answer. R. L., c. 113, § 55, does not apply to any deposits made in savings banks other than those made by authority of the pro- bate court, court of insolvency or other court.
136
OPINIONS OF THE ATTORNEY-GENERAL.
To the State Board of Health.
1907 December 9.
Public Records — Letters and Reports in Custody of State Board of Health.
Under the provisions of R. L., c. 35, § 5, that "The words 'public records' shall . . . mean any written or printed book or paper ... in or on which any entry has been made or is required to be made by law, or which any officer or employee of the Commonwealth . . . has received or is required to receive for filing," reports and letters of complaint which are the result of investigation made by the State Board of Health under its general authority to make sanitary investigation and inquiry, which are in the cus- tody of the State Board of Health, are not public records, and therefore are not open to public inspection.
I am asked by the State Board of Health whether certain reports and letters of complaint are public records, within the meaning of sections 5 and 17 of chapter 35 of the Revised Laws, which provide as follows: —
Section 5. In construing the provisfdns of this chapter and other statutes, the words "public records" shall, unless a contrary intention clearly appears, mean any written or printed book or paper, any map or plan of the Commonwealth or of any county, city or town which is the property thereof and in or on which any entry has been made or is required to be made by law, or which any officer or employee of the Commonwealth or of a count}^, city or town has received or is required to receive for filing, and any book, paper, record or copy mentioned in the .six following sections. The word "record" shall, in this chapter, mean any written or printed book, paper, map or plan.
Section 17. Every person who has the custody'' of any public records shall, at reasonable times, permit them to be -inspected and examined by any person, under his supervision, and shall furnish copies thereof on the pajTnent of a reasonable fee. In cities and towns such inspection and furnishing of copies may be regulated by ordinance or by-law.
You say that the Board, under its general authority to make sanitary investigations and inquiries, began on March 1, 1905, a systematic examination of premises where milk is produced for public sale, employing a skilled veterinarian, who up to the present time has examined more than 8,300 dairies; that for convenience and the sake of uniformity the conditions observed at each place are reported to the Board on blank forms, and in case the conditions noted are incompatible with the production of a sanitary milk supply, the secretary of the Board calls the attention of the proprietor thereto, and makes suggestions with
DANA MALONE, ATTORNEY-GENERAL. 137
he request that they be adopted. You say that the publication
if a list of the farmers whose premises have been found to"
aerit criticism would not be for the public good, but that an
ijustice would be done to those farmers who have adopted
he suggestions offered and have continued to keep their cows
nd premises in proper sanitary condition.
These reports and letters of complaint about which you speak
re not incorporated into and are not a necessary part of the
;cord which you are required by law to keep. If they were, it
ould be your duty, upon request, to furnish them for inspec-
on and examination, and to furnish copies of the same. Such
?ing the case, and such papers not forming a part of the record
' the work done in your office, and not being of such a charac-
r that you are required by law to receive them for filing, but
?ing obtained and preserved by you for your own convenience
I the proper administration of your office, you are not obliged
' t exhibit them to any person who may ask to see them.
Similar opinions have been rendered to various departments
{ my predecessors, and I see no reason for departing from the
lie already laid down by them.
\.UPER Law — Contagious Diseases — Quarantine — Tem- porary Aid to Unsettled Paupers — Cities and Towns — Board of Health — Overseers of the Poor.
the family of an unsettled person suffering from contagious disease dangerous to the public health, but not quarantined, is aided for the reason that such family are unable to maintain themselves, and are, therefore, a charge to the city or town where they are domiciled, such aid should be rendered by the overseers of the poor under the provisions of R. L., c. 81, § 21, the tem- porary aid law, so called, and subject to the restrictions therein contained.
. the board of health of such city or town expends money for the support of the family of a person infected with a contagious disease, and therefore quarantined with his family, such expense is incurred for the preservation of the public health, and cannot be recovered either from the city or town where such per- sons are settled, or from the Commonwealth if such persons have no settlement.
1 neither of the above cases does aid so rendered pauperize the persons aided.
Vou seek my opinion upon certain facts which are stated as to the Super-
f I intendent of
1 lows : State Adult
i laborer, thirty years old, is suffering from tuberculosis. He ^^j^^^^ i7 iij been earning $9 a week, and has no money saved. His
138 OPINIONS OF THE ATTORNEY-GENERAL.
attending physician and the local board of health are notified. He has a wife and four children without means of support. Neither his wife nor his children are sick.
Upon these facts you submit the following specific ques- tions: —
Under the statutes, should the board of health provide for the sick person only, and the overseers of the poor provide for the other members of the family who are not sick?
If the overseers of the poor so provide, is the aid rendered by them to the persons not sick hmited as to amount by the terms of the temporarj^ aid law, if the persons so aided have no legal settlement, and reimburse- ment is asked from the Commonwealth?
Does the aid so rendered by the overseers of the poor pauperize the family?
Should the board of health provide not only for the sick person, but also for the other members of the family who are not sick?
Is the aid so furnished by the board of health to the persons not sick limited as to amount by the terms of the temporary aid law if the persons so aided have no legal settlement, and reimbursement is asked from the Commonwealth, or is such aid controlled only by the words "suitable" as to character and "reasonable" as to expense?
The statutes which are material in the premises are St. 1907, c. 386, amending St. 1902, c. 213, § 1, and the temporary aid statute, so called, R. L., c. 81, § 21.
St. 1902, c. 213, § 1, as amended, reads as follows: —
Reasonable expenses incurred by the board of health of a city or town or by the Commonwealth in making the provision required by law for persons infected with smallpox or other disease dangerous to the public liealth shall be paid by such person or his parents if he or they be able to paj^, otherwise by the city or town in which he has a legal settlement, upon the approval of the bill by the board of health of such city or town or by the state board of charity; and such settlement shall be determined by the overseers of the poor, and by the state board of charity in cases cared for by the Commonwealth. If the person has no settlement, such expense shall be paid by the Commonwealth, upon the approval of bills therefor by the state board of charity.
Section 2 as amended provides : —
DANA MALONE, ATTORNEY-GENERAL. 139
No person for whose care and maintenance a city or town or the Com- lonwealth has incurred expense in consequence of smallpox, scarlet !ver, diphtheria, tuberculosis, dog bite requiring anti-rabic treatment, r other disease dangerous to the public health shall be deemed to be a auper by reason of such expenditure.
R. L., c. 81, § 21, so far as it is material to the present ques- on, provides : —
A city or town may furnish aid to poor persons found therein, having ) lawful settlements within the Commonwealth, if the overseers of the )or consider it for the pubhc interest; but, except in cases under the ovisions of section fourteen of chapter eighty-five, not for a greater nount than two dollars a week for each family during the months of I 'ay to September, inclusive, or three dollars a week during the other j onths; and the overseers shall in every case give immediate notice in "iting to the state board of charity, which shall examine the case and if it rects a discontinuance of such aid, shall remove such persons to the ate hospital or to any state or place where they belong, if their neces- ;ies or the public interest requires it, and the superintendent of said jspital shall receive the persons removed thereto as if they were sent ere in accordance with the provisions of section seven of chapter eighty- 's.
This statute was amended by St. 1903, c. 355, but such Qendment does not aflPect the present question. The first question raised by the inquiries above quoted is lether or not the board of health of a city or town, if aid is ! rnished to persons other than the person infected with small- •X or other disease dangerous to the public health, may charge !ch expenses to or collect them from the Commonwealth in ses of unsettled persons.
I am of opinion that under the provisions of St. 1907, c, 386, 1, the board of health of a city or town is not authorized to ' arge to the Commonwealth any expenditures made to the i mily of a person infected with a contagious disease, such aid Hng necessary only when the family of the person aftected is itlated or quarantined. This appears to be the conclusion uched by the court in the case of Haverhill v. Marlborough, 7 Mass. 150, which was a suit brought by the city of Haver-
140 OPINIONS OF THE ATTORNEY-GENERAL.
hill to recover the expenses incurred by such city in consequencel of the illness from smallpox of two persons whose settlement! was in Marlborough. The case was tried without a jury, upon the pleadings and an agreed statement of fact, in the lower court, which disallowed certain items charged by the city of Haverhill against the city of Marlborough. After passing upon certain of the claims which were allowed in the court below and sustaining the decision there rendered, the court says (p. 155):
The other classes of expenses were for services of policemen stationed to enforce the quarantine of the house, and for sicpplies for other persons not ill, furnished because they were also quarantined in the same building. All these expenses were disallowed by the lower court, and we think righth\ They were not incurred for the persons infected with smallpox, but for the preservation of the public health.
This decision would seem to be decisive upon the first ques- tion, and to show, at least in the case of settled persons, that the expenses for which recovery i^ allowed must be strictly limited to those incurred for or in behalf of the person actually afflicted with a contagious disease. I see no reason to distin- guish between those expenses which one city or town may re- cover from another city or town in the case of settled paupers, and those which a city or town may recover from the Common-i wealth in the case of unsettled paupers. It was the evident purpose of the statute to allow a reimbursement for the same expenses in both cases. It follows, therefore, that if the board of health expends money for the support or maintenance of the' family of a person infected with a contagious disease who were quarantined with such person, such expenses must be treated as having been incurred for the preservation of the public health, and cannot be recovered either from a city or town where the sick person is settled, or from the Commonwealth in case such person has no settlement.
If, however, the family of a person suffering from such dis- ease but not quarantined are aided for the reason that such family are unable to care for and maintain themselves, and are, therefore, a charge upon the city or town where they are
DANA MALONE, ATTORNEY-GENERAL. 141
omiciled the aid rendered should, in my opinion, be rendered y the overseers of the poor, under R. L., c. 81, § 21, the tem- orary aid law, so called, and subject to the restrictions there 5tablished, as would be the case where such family had become oor and unable to support themselves, by reason of the death ' injury of the parent whose work it was to provide for them. With respect to the effect of aid rendered under either of lese statutes in cases of contagious diseases dangerous to the iblic health, I am of opinion that such expenditures as are ade by the board of health, whether in behalf of the person flicted or of his family, do not pauperize any of the persons ho receive such aid. Where the aid is rendered by the over- ers of the poor, the question is more difficult; but in that case 30, in my opinion, the aid furnished, if it may properly be said at the expense incurred was in consequence of contagious sease dangerous to the public health, does not pauperize the •rsons aided. This view is confirmed by the fact that the ovision of St. 1907, c. 386, § 2, is broad enough in terms to elude not only aid furnished by the local board of health for e purpose of preserving the public health, but also aid fur- shed by the overseers of the poor, and required by the 'verty of the family of the person afflicted with such disease.
:teran in the Service of the Commonw^ealth — Retire- ment — Compensation — Salary.
1 St. 1907, c. 458, § 1, providing that "a veteran of the civil war in the serv-ice of the commonwealth, if incapacitated for active duty, shall be retired from active serv-ice, with the consent of the governor, at one-half the rate of com- pensation paid to him when in active ser\ace, to be paid out of the treasury of the commonwealth," the word "compensation" is to be limited to salaries the exact amount of which is determined by law, and may not include li\ang expenses or other like advantages, in addition to such salary.
(n answer to Your Excellency's letter, enclosing a communi- xothe c ion from the superintendent of the Medfield Insane Asvlum, i908 '
January 20.
1 regard to the pension case of an employee of said institution,
I eply as follows : —
142 OPINIONS OF THE ATTORNEY-GENERAL.
This question depends upon the meaning of section 1 of chapter 458 of the Acts of 1907, which provides that: —
A veteran of the civil war in the service of the commonwealth, if in- capacitated for active duty, shall be retired from active service, with the consent of the governor, at one-half the rate of compensation paid to him when in active service, to be paid out of the treasury of tlie common- wealth.
In the case submitted for my consideration, the veteran was paid a salary of $1,500 a year, and in addition received his board and lodging; and he now claims to be entitled to be retired at one-half such salary plus one-half the cash value of the board and lodging he was receiving at the time of his application.
R. L., c. 6, § 58, provides that: —
Salaries payable from the treasury sliall, unless otherwise pro\dded, be paid on the first of each month and shall be in full for all services rendered to the commonwealth by the person to whom thej^ are paid.
This section itself, it seems to me, is decisive of the question now under consideration. The living expenses and like advan- tages which certain employees of the Commonwealth may enjoy are given to them not as salary, but as privileges which the nature or place of their duties require the Commonwealth to grant to them to secure the highest degree of efficiency. SuchI privileges may at any time be discontinued and the employee^ required to defray his own living expenses, should such a course be possible without injuring the efficiency of the employee or of any employee who may occupy the same position. It is not probable that the Legislature intended to reduce such items as living expenses to a monetary value without providing some means other than the claims of the employee himself for deter- mining the exact value of such privileges; and it must follow, I think, that the word "compensation" is to be limited to salaries, the exact amount of which is determined by law and may always be speedily ascertained by the Governor and Council.
DANA MALONE, ATTORNEY-GENERAL. 143
'axation — Stkeet Railway Corporation — Receiver — Returns to Local Assessors — Liability for Tax.
t. 1906, c. 463, Part III., § 133, requiring a street railway corporation to make a return to the board of assessors of every city and town of the amount of gross receipts for the j^ear ending on the preceding 30th of September, and of the length of trade operated, requires a street railway company to make such return, notwithstanding such company has gone into the hands of a receiver, and its franchises and property have been sold prior to September 30, under the provisions of St. 1906, c. 463, Part III., § 144, to another cor- poration, organized for the purpose of owning and operating such road; and the tax pro\'ided for by section 134 of Part III. of such statute may be assessed upon it and may be collected from the purchasing company.
You have requested my opinion upon certain facts growing to the Tax ' it of the sale of the property and franchises of the South i908
j f t^ J ^ January 27.
I [iddlesex Street Railway Company to the Middlesex & Boston
:reet Railway Company. You state that the South Middle- X Street Railway Company went into the hands of a receiver, id that its property and franchises were sold by the receiver
July, 1907; that the Middlesex & Boston Street Railway ompany was organized to own and operate said road, and that e former company did not, on Sept. 30, 1907, own or operate ly track.
Your questions are, first, whether the South Middlesex Street ailway Company is required to make a return to the local sessors for the year ending Sept. 30, 1907, of the length of ack operated by it in public ways and places, and of its gross ceipts, in accordance with the provisions of St. 1906, c. 463, irt IIL, § 133; and, second, whether this company is liable
taxation under the provisions of section 134 of this statute, • d, if so, whether the tax may be collected from the purchasing < mpany.
I am of opinion that the original company is required to make i return in accordance with the provisions of section 133 of the utute cited, and is liable to taxation under section 134 thereof.
The statute requires a return of the amount of the gross re- ( pts for the year ending on the preceding thirtieth day of ^ptember, and of the length of track operated. It is not neces- S"y that the company making the return should be operating
144 OPINIONS OF THE ATTORNEY-GENERAL.
the road on the thirtieth day of September. The statute re- quires a statement of the gross receipts for the year ending at that time. UnHke the statute providing for the corporate fran- chise tax (St. 1906, c. 463, Part III., § 125), it does not require that the length of track operated be taken at any particular time. There is no reason why the original company should not make the return required by statute.
Furthermore, there is no reason why it should not be liable for the tax. This tax is not based upon the value of the fran- chise at the time of assessment (see Commonwealth v. Lancaster Savings Bank, 123 Mass. 493), but is a payment for the use of the streets and highways. Such a tax may be laid on a cor- poration in the hands of a receiver as well as a property tax. j City National Bank v. Charles Baker Company, 180 Mass. 40.
If the tax is not laid on the original company, it cannot be laid at all. It is a tax imposed in lieu of payment for the care and repair of streets and highways. Springfield v. Springfield Street Raihvay, 182 Mass. 41, 45; Boston v. Union Freight Rail- road Co., 181 Mass. 205; McDonald v. Union Freight Railroad Co., 190 Mass. 123. It is in lieu of payment for the care and repair of streets and highways for the year covered by the gross receipts returned. Since it is based on gross receipts per mile, the cities and towns in which the railway is operated will receive nothing in lieu of payment for care alid repairs for the period during which the road was operated by the original company, unless a tax is assessed upon such company. Clearly, the Legis- lature did not intend that the cities and towns within which a street railway was operated should be required to bear the bur- den of caring for and repairing streets and highways merely because the franchises and property of the railway company were sold during the tax year.
Though the return must be made by the original company, and the tax assessed upon it, the tax may, in my opinion, be collected from the purchasing company. I assume that the franchises and property of the company were purchased unden authority of St. 1906, c. 463, Part III., § 144, which provides; that the purchaser shall hold and possess the railway, franchises.'
DANA MALONE, ATTORNEY-GENERAL. 145
nd property "subject to the same duties and liabilities as the riginal street railway company;" but it provides that no action lall be wrought against such purchasers "to enforce any lia- ility incurred by said original company, except debts and lia- ilities owing from said original company to any city or town ithin which the railway is operated, and taxes and assessments ir which said original company is liable under the statutes 'lating to street railways, which shall be assumed and paid by lid new company."
The liability for the commutation tax imposed by the sections )ove cited upon the original company is, in my opinion, such a ibility as the purchasing company is required to assume, and
such a liability incurred by the original company as may be
e ground for an action against the new^ company.
^UPER Law — State Pauper — Aid rendered in Place OF Settlement of Wife — City or Town — Reim- bursement BY Commonwealth — Notice.
here a town seeks reimbursement under the provision of R. L., c. 85, § 16, that "if a state pauper has a wife who is also a pauper hav-ing a legal settlement in the commonwealth, he shall be supported by the place where his wife has her settlement, and the commonwealth upon a written notice to the state board of charity within sixty days after aid is first given to him shall reim- burse such place," such town must show that notice was given strictly in accordance with the terms of the provision for reimbursement; and a town is not entitled to be reimbursed for expenses incurred for a period of sixty daj^s prior to the date of notice, when more than sixty days have elapsed since aid was first rendered.
My opinion is requested by you with respect to a claim made to the Supei 1 the overseers of the poor of the town of Easton, under the state Aduil i lowing circumstances : — iocs
^ February 14.
Un Aug. 12, 1907, the town of Braintree notified the State
J'ard of Charity that an unsettled male pauper was receiving luper relief; and on Aug. 16, 1907, Braintree notified the town c Easton that the former was aiding the family, and claimed t It the wife of the pauper and his children had settlements in i ston. These settlements apparently are not denied by the
146 OPIXIONS OF THE ATTORXET-GEXER.U..
town of Easton. Some time subsequent to the latter date the State Board notified the overseers of the poor of Braintree thai it considered the case in question closed, for the reason that the wife had a settlement in Easton, and that if any claim is made upwn the Commonwealth it should come from that place. Or Dec. 3. 1907, the town of Easton notified the State Board making a claim for the man's share of the aid given, to whicl: the State Board repHed that the notice was too late, not cominc within sixtA* days after aid was first rendered to the pauper ii question in accordance with the pro\'i5ions of section 16 o chapter So of the Revised Laws. The town of Easton contend that it is entitled to reimbursement for the period of sixty day prior to its notice, irrespective of the time which has elapses subsequent to the rendering of the first aid. R. L., c. S5. § 16, provides that: —
If a state pauper has a wife who is also a pauper having a legal se::.r ment in this commonwealth, he shall be supported by the place wher- his wife has her settlement; but the commonwealth upon written DOtb' to the state board of charity within sixty days after aid is first givai U him, shall reimburse such place the cost of such support based upon th» expense of supporting him had he been committed to the state hosiatal
In my opinion, the contention of the State Board of Charitj must be sustained. I think the words of the statute are den and unambiguous, to the effect that the Commonwealth shal only reimburse cities and towns upon written notice within sixtj days after aid is first given. I find nothing in the history o this section which tends to put any other interpretation upoi the words used.
D-VXA ^LAXOXE, ATTORNEY-GENERAL. 147
• suranxe — ix^-estmext of fuxds — secured loaxs —
Mortgages.
der the proviaons of St. 1907, c. 576, § 37, that the capital of any domestic lEisuranee company other than Ufe, and three-fourths of the reserve of any domestic stock or mutual life insurance company, shall be invested as therein prescribed, a domestic life insurance company may invest its fiinds in loans secured by assessable stock of any trust company or bank; or in loans se- cured by stock, bonds and other collateral, whether or not such collat-eral is designated in St. 1907, c. 576. § 37. clauses 1 to 5. inclusive; or in loans upon mortgages of real estate to an amount exceeding 60 per cent, of the fair market value of the property mortgaged at the time of such loan.
My opinion is requested by you upon the following ques- To the
Insurance 1 ns: ConuniaaoE
.. Whether or not it is lawful for a domestic life insurance company to 3 est any of its funds in loans secured by assessable stock of any trust « Qpany or bank as collateral.
I. Whether or not it is lawful for such a company to invest any of its i ds in loans secured by stocks, bonds or other coUateral not designat-ed i 5ub-di^-isions 1 to 5, inclusive, of section 37 of chapter 576 of the Acts (1907.
5. Whether or not it is lawful for such a company to invest any of its f ds in loans upon mortgages of real estate to an amount exceeding 60 1 cent, of the fair market value of the ijroperty at the time of such loan.
.n my opinion, all of these inquiries must be answered in the £ rmative. ^t. 1907, c. 576, § 37. pro\"ides: —
Che capital of any domestic insurance company other than life, and 1 3e fourths of the reser\-e of any domestic stock or mutual life insm^ance c ipany . shaU be invested only as f oUows : —
■ In loans upon improved and unencumbered real property in any 81 € of the United States, provided that no loan on such real property d Q exceed sLxty per cent of the fair market value thereof at the time 0 uch loan, . . .
190S February ;
. In loans secured by coUateral security consisting of any of the above.
rhe word "above"" here refers to the earlier clauses pro\'iding f( investment in United States or State bonds, municipal bonds,
148 OPINIONS OF THE ATTORNEY-GENERAL.
school and water district bonds, railroad or street railway bonds and notes,
8. No domestic life insurance company shall invest any of its fund' in any unincorporated business or enterprise, nor in the stocks or e\-i- dcnce of indebtedness of any corporation, the owners or holders of whici stock or evidence of indebtedness may in any event be or become liable on account thereof to any assessment except for taxes, nor shall sucl life insurance company invest any of its funds in its own stock or in th( stock of any other insurance compan5^ No such company shall inves' in, acquire or hold directly or indirectly more than ten per cent of th( capital stock of any corporation, nor shall more than ten per cent of it capital and surplus be invested in the stock of any one corporation. . . nor shall any such company'- enter into any agreement to withhold fron sale any of its property, but the disposition of its property shall be at al times within the control of its board of directors.
9. Nothing herein shall prevent such company from investing or loaninj any funds not required to be invested as provided in sub-divisions om to seven, inclusive, of this section in any manner that the directors of sucl life insurance companj^ maj'' determine : provided, however, that such fund shall not be invested in the purchase of stocks or evidence of indebtednes; prohibited by sub-division eight of this section, and provided that n( loan of such funds shall be made to an individual or firm unless it i secured by collateral security.
It is clear that the capital and one-fourth of the reserve of ( domestic life insurance company is limited only as to invest- ments by clauses 8 and 9. The prohibited investment undei section 8 means the purchase and ownership by a domestic li!( insurance company of stock or evidence of indebtedness of f company liable to assessments other than taxes. That prohibi- tion does not extend to loans made by a domestic company which are limited only by the proviso of clause 9, to the effeci that no loan shall be made unless it is secured by collatera security. In my opinion, the whole of the capital stock anc one-fourth of the reserve of a domestic life insurance compan^ may be invested in loans to individuals or firms secured by stool of a trust company or bank which is assessable otherwise thar for taxes.
The same reasoning applies to the second question. In m} opinion, there is no limitation upon the class or nature of the
DANA MALONE, ATTORNEY-GENERAL, 149
illateral security required under the above quoted proviso of
ause 9. Consequently, the whole of the capital and one-fourth I? the reserve of such a company may be invested in loans
•cured by stocks, bonds or other collateral not designated in
auses 1 to 5, inclusive.
As to the third inquiry, I do not think that mortgages of
al estate are controlled by clause 9, and, except as otherwise j cpressly provided by clause 4 of this section, a company may
vest any of its funds in loans upon mortgages of real estate such an amount as it sees fit, and is not limited to 60 per
nt. of the fair market value.
:CRETARY OF THE COMMONWEALTH — HiSTORY OF UnIT OF
Military Organization of Massachusetts Volunteers — Approval by Proper Veteran Association — Pur- chase OF Copies.
1893, c. 413, § 1, as amended by St. 1899, c. 388, authorizing the purchase by the Secretary of the Commonwealth, subject to the restrictions therein pre- scribed, of 500 copies of a history of any regiment, battery or other unit of military organization of Massachusetts Volunteers, prepared and published "under the sanction and authority of its proper veteran association," per- mits the purchase of the designated number of copies of such a publication sanctioned and approved by certain late ofBcers of the organization appointed by the members thereof for the purpose, although no veteran association exists in connection with such organization.
I have your inquiry of February 20 respecting the authority to the ( certain late officers of the Eighth INIassachusetts Infantry, Secretary.
I iited States Volunteers, to approve, under the provisions of February 25. ' 1893, c. 413, § 1, the publication of a history of such regi-
i-nt during the Spanish war, entitled "Twelve Months with
I I Eighth Massachusetts Infantry in the Service of the United •^ites." Section 1 of the statute above cited is as follows: —
^Vhenever, after the passage of this act, any regiment or battery, or Cicr unit of military organization of Massachusetts volunteers, shall J blish or shall have prepared for publication a history of such organiza- ta, under the sanction and authority of its proper veteran association, ^ ich history shall be shown to the satisfaction of the governor and
150 OPINIONS OF THE ATTORNEY-GENERAL.
council to be, so far as is practicable in such works, faitlifuUy and accu- rately prepared and historically correct, to contain matter not previously published or accessible to the general historian, to be of sufficient reliability and importance to justify the purchase of copies as herein provided for, and to contain a complete roster of the organization, corrected to the date of publication, the secretary of the commonwealth, with the approval of the governor and council, and at a price fixed by them, shall purchase five hundred copies of such history. Said history shall be in one volume, and the price thereof shall not exceed two dollars for a volume of four hundred octavo pages.
The provisions of the statute above quoted were, by St. 1899, c. 388, made applicable to histories of organizations of Massa- chusetts volunteers which saw active service in the field during the Spanish war.
The specific inquiry presented by your communication is whether or not the certificate of approval which you submitted is a sufficient compliance with the provision of St. 1893, c. 413, § 1, requiring that such publication should be under the sanction and authority of the proper veteran association of the military organization whose history is in question. The undoubted pur- pose of such provision was to secure the approval of such veteran association, if any, to the publication of any history of the organization which it represents. In the present instance it is true that there was in existence no regular association of veterans of the Spanish war who had served in the Eighth Massachusetts Volunteer Infantry; but if, as I assume, the members of such regiment who would be eligible to membership in a veteran association associated themselves together and duly selected a committee to represent them, which committee exam- ined the publication and duly sanctioned and authorized the same, as appears from the certificate of approval above referred to, I am of opinion that the terms of the statute have been substantially complied with in the premises, and that the Secretary of the Commonwealth is authorized to deal with the publication alreadv referred to as directed in St. 1893, c. 413, §1.
fl
DANA MALONE, ATTORNEY-GENERAL. 151
ONSTITUTIONAL LaW — APPROPRIATION — PUBLIC PuRPOSE
— Liability of Commonwealth for Act of Insane Person released on Parole.
he Commonwealth is not liable for any act of or injury caused by an insane per- son released from a public asylum on parole, by authority of St. 1905, c. 435, § 1; and an appropriation for the purpose of compensating the widow of a member of an unpaid commission in the service of the Commonwealth, who was killed by an insane person so released on parole, is not for a public pur- pose, and is, therefore, unconstitutional.
You ask my opinion on the following questions: — cCmmittee^on
Ways ind
1. Is the responsibility of the Commonwealth, if any, for injury caused ^'^igos ;■ an insane person released from a public asylum on parole, such as ay constitutionally be recognized by the Legislature through a com- •nsatory appropriation.
March 11.
Chapter 435 of the Acts of 1905 provides in section 1 that: —
The superintendent or keeper of any institution, pubhc or private, used holly or in part for the care of the insane, may permit any inmate thereof mporarily to leave such institution in charge of his guardian, relatives, lends or by himself, for a period not exceeding six months, and may ceive him when returned by any such guardian, relatives, friends or )on his own apphcation within such period, without any further order commitment. The expense of such return of a pauper may be paid .' the state board of insanity, if, in its opinion, a new commitment would herwise be necessary.
It is therefore clear that an insane person may be released om a public asylum on parole. Even if the superintendent ?ted improperly, no government has ever held itself liable to idividuals for the misfeasance, laches or unauthorized exercise " power by its officers and agents. In the language of Judge tory, "it does not undertake to guarantee to any person the delity of any of the officers or agents whom it employs, since lat would involve it in all its operations in endless embarass- lents and difficulties and losses which would be subversive of le public interests." Gibbons v. United States, 8 Wall. 274. 'herefore, whether the insane person was properly released or
152 OPINIONS OF THE ATTORNEY-GENERAL.
not, no liability attached on the part of the Commonwealth. If an appropriation of money to be raised by taxation is con- templated in a case of this kind, it would be by way of gift, and would clearly be an excess of legislative power.
I am of opinion, therefore, that such appropriation cannot be constitutionally made.
2. Would an appropriation to the widow of a member of an unpaid commission be an appropriation for a public purpose?
The power of the government to affect the individual in his private rights of property is confined to purposes and objects alone which the government was established to promote, public uses and the public service.
I am informed that the appropriation suggested is to the widow of one of the five members of the Commission on Com- merce and Industry, appointed pursuant to chapter 104 of the Resolves of 1907. This commission had been appointed about six months, and had not made its report when Edward Cohen, one of the members, was shot in an anteroom of the Executive Chamber at the State House.
The power to give rewards after the event for conspicuous public service, if it exists at all, is limited to cases where a man has deserved greatly of the Commonwealth by military or civil services in which the public advantage 'of recognizing his merit should be the strong element, and "the public welfare alone must be the ground, as it is the only legal justification for this kind of payment." Opinion of Justices, 175 Mass. 602. Can it be fairly said that a member of a commission, paid or unpaid, who had been in the service of the Commonwealth only for a few months, whose report had not been made, has deserved greatly of the Commonwealth by conspicuous service which would be entitled to a reward by way of gift? It seems to me that it cannot be fairly thought that the public good will be served by such a grant, and that in such a case the only public advantage is such as may be incident and collateral to the relief of a private citizen.
DANA MALONE, ATTORNEY-GENERAL. 153
I am of opinion that an appropriation to the widow of such person is not for a public purpose, and cannot be made under le Constitution.
3. Would an appropriation to the widow of one not in the service of le Commonwealth, injured while in a public building, whether or not trough the negligence of any servant of the Commonwealth, be an )propriation for a public purpose?
I understand that this question refers to the shooting by an isane person of Dennis D. Driscoll, who was not in the employ ' the Commonwealth, but w^ho was waiting in the anteroom of le Executive Chamber wdth Edward Cohen for the purpose of terviewing His Excellency the Governor on the question of the irdon of a prisoner in the State Prison at Charlestow^n. I am opinion that a payment by the Commonwealth, to the widow a person shot as aforesaid, of any sum of money merely by
j ason of his happening to be at the State House on an unoffi-
' al matter when he received his injury, would not be for a iblic purpose within the meaning of the law; and that there is ) more reason for such payment than there would be if the ;rson were elsew' here — upon the streets or in any building —
I hen he was shot, and that such an appropriation would not be
j r a public purpose.
3NSTITUTI0NAL LaW — TAXATION — APPROPRIATION OF PUB- LIC Funds — Public Purpose — Religious Society, School or Institution — Sectarian Control.
society, school or institution which is under direct ecclesiastical or sectarian control, and is designed solely or even principally for the benefit of persons of a particular sect or denomination, cannot be held to be maintained for a public purpose such as would justify an expenditure of money raised by taxa- tion ; and an appropriation for the benefit of such societj^ school or institution from the public funds raised by taxation would be unconstitutional.
I have the honor to acknowledge the receipt of an order to the House
. 1 of Repre-
i opted by the Honorable House of Representatives on the senmives. 1 enty-eighth day of February, 1908, requiring my opinion, April 6. i follows : —
154 OPINIONS OF THE ATTORNEY-GENERAL.
Ordered, That the Attorney-General be requested to submit to the House of Representatives his opinion in writing upon the following ques- tion: Under the Constitution and laws of the Commonwealth, can a State, county, city, town, village or other civil division use its property or credit, or any money raised by taxation or otherwise, or authorize either to be used, for the purpose of founding, maintaining or aiding by appropriation or in any other manner any church, religious denomination or religious society, or any institution, school, society or undertaking which is under sectarian or ecclesiastical control?
The question is a somewhat broad one, but for the purposes of this inquiry I assume that the Honorable House of Repre- sentatives in substance desires my opinion on the question whether or not public moneys raised by taxation may, under the constitutional provisions, be expended by the Commonwealth or by any county, city or town thereof for the purpose of founding, maintaining or otherwise aiding any church, religious denomina- tion or religious society or any institution, school, society or undertaking which is under sectarian or ecclesiastical control. On this assumption I submit the following conclusions : —
The right to appropriate public funds for specific purposes is no more extensive than the power to levy taxes for such specific purposes. The power of taxation has been defined and limited by the Constitution of the Commonwealth. Article IV. of section I. of chapter I., part second, declares that the purposes for which the power of taxation in its various forms may be exercised by the Legislature are "for the public service, in the necessary defence and support of the government of the said commonwealth, and the protection and preservation of the subjects thereof." Article XL of section I. of chapter H. re- stricts the issuing of moneys from the treasury to purposes of "the necessary defence and support of the commonwealth; and for the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court."
In Lowell v. Boston, 111 Mass. 454, 460, it is said that: —
The power to levy taxes is founded on the right, duty and responsibility to maintain and administer all the governmental functions of the State, and to provide for the public welfare. To justify any exercise of the
DANA MALONE, ATTORNEY-GENERAL. 155
lOwer requires that the expenditure which it is intended to meet shall be Dr some public service, or some object which concerns the public welfare.
And in Mead v. Acton, 139 Mass. 341, 344, the court said: —
The right to tax is the right to raise money by assessing the citizens jr the support of the government and the use of the State. The term taxation" imports the raising of money for public use, and excludes (le raising of it for private uses. Opinion of the Justices, 186 Mass. 604.
The question is in each case, therefore, whether or not the urpose for which money is to be appropriated and spent is a •ubhc purpose, or, in connection with the precise question under onsideration, whether or not the estabhshment, maintenance r aid of a church, religious denomination or rehgious society r of any institution, school, society or undertaking which is nder sectarian or ecclesiastical control may be a public purpose ;hich would justify the appropriation and use of public money.
With respect to churches and rehgious societies or denomina- ions in general, the question is disposed of by a consideration f the existing provisions of the Constitution and of the history f their enactment. The original provision of the Constitution mbodied in the bill of rights (article III.) expressly empowered he Legislature to compel the several towns, parishes and other lolitical divisions of the Commonwealth to provide for public /orship, and failure so to do was in some cases subject even
0 indictment. See Commonwealth v. Waterborough, 5 Mass. 1.57. As a necessary consequence of this duty, the towns and
parishes of the Commonwealth were authorized to raise money <y taxation for the purpose of maintaining and supporting public Protestant teachers of piety, religion and morality"
1 all cases where such provision was not voluntarily made. t. 1799, c. 87. And fines and penalties were provided for the ailure so to do. It remained for the constitutional amendment uly adopted in 1834 to put an end to taxation for the support f churches or religious societies. The final words of this mending article (article XI. of the articles of amendment) re as follows : —
156 OPINIONS OF THE ATTORNEY-GENERAL.
and no subordination of any one sect or denomination to another shall ever be established by law.
It is true that the Commonwealth still aids churches or re- ligious societies of every sect and denomination by a general exemption from taxation of their property (see R. L., c. 12, § 5, cl. 7); but I am constrained to conclude that in respect of particular religious societies or churches an appropriation of public moneys raised by taxation for their benefit would be un- constitutional and void," for the reason that such appropriation would not be for a public body, but for an association of in- dividuals (see Kingman v. Brockton, 153 Mass. 255), and might be objectionable for the reason that it effected a subordination of one sect or denomination to another, contrary to the final provision of article XI. of the Amendments to the Constitution of the Commonwealth hereinbefore referred to.
In the case of schools, so far as such schools fall within the limits of the system of education required to be established and maintained by the cities and towns of the Commonwealth the rule seems to be equally well established and definite. Article XVIII. of the Amendments to the Constitution is as follows: —
All moneys raised by taxation in the towns and cities for the support of public schools, and all moneys which may be appropriated by the state for the support of common schools, shall be applied to, and expended in, no other schools than those which are conducted according to law, under the order and superintendence of the authorities of the town or city in which the money is to be expended; and such money shall never be appropriated to any religious sect for the maintenance, exclusively, of its own school.
The terms "public schools" and "common schools," as used in this amendment, have been repeatedly defined. So in Jenkins V. Andover, 103 Mass. 94, 99, the court said: —
These are the schools to which the eighteenth article appUes, — schools which towns are required to maintain, or authorized to maintain, though not required to do so, as a part of our system of common education, and which are open and free to all the children and youth of the towns in which they are situated, who are of proper age or qualifications to attend
DANA MALONE, ATTORNEY-GENERAL. 157
lem, or which adjoining towns may unite to support as a part of the ,me system. . . . This class of schools does not include private schools hich are supported and managed by individuals; nor colleges or acade- ies organized and maintained under special charters for promoting the gher branches of learning, and not specially intended for, nor limited ', the inhabitants of a particular locahty.
In the case of all such schools an appropriation of public oney to or for the benefit of any religious sect for the mainte- ince exclusively of its own school is expressly forbidden. See mkins v. Andover, above cited.
Upon the other hand, it has long been the custom of the ommonwealth to aid by grants of land, by immunity from xation, and even by direct appropriation of money, the estab- ;hment and maintenance of colleges, technical schools and :her institutions of higher learning. The distinction between 1 appropriation for public schools and for the institutions of I gher learning has been pointed out in Merrick v. Aviherst, 12 [len, 500, 508, as follows: —
The phrases "public schools" and "common schools" have acquired ider the legislation and practice of this State a well-settled signification, tiey are never applied to the higher seminaries of learning, such as in- ■rporated academies and colleges. These, in a certain broad and com- •ehensive sense, are pubhc institutions, because they are controlled by ■rporations and are usually open to all persons who are willing to comply ith the terms of admission and tuition. But the broad line of distinction 'tween these and the "public or common schools" is, that the latter e supported by general taxation, that they are open to all free of expense, id that they are under the immediate control and superintendence of ;ents appointed by the voters of each town and city. That the amend- ent was intended to apply only to these schools is manifest, not only Dm the terms in which it is expressed, but also from the history of its igin and adoption as part of the organic law.
The assistance granted the higher institutions of learning, lerefore, is based upon the proposition that the constitutional •Qvision did not apply to them, and that the establishment and aintenance of such institutions is a public purpose for which le Constitution does not forbid the appropriation of money
158 OPINIONS OF THE ATTOENEY-GENERAL.
raised by taxation. Upon the other hand, a school, society or institution which is under direct sectarian or ecclesiastical con- trol, and was designed solely, or even principally, for the benefit of persons of that particular sect or denomination, and for no others, could not be deemed to be maintained for a public pur- pose which would warrant an appropriation of the public funds. Replying to the specific question of the Honorable House of Representatives, the principles above described are in my opinion equally applicable to any institution, society or under- taking for which it is asked that public money be appropriated. I apprehend that the question in each case must be whether or not the purpose which it is sought to aid is a public purpose, and such question is to be determined upon the facts then presented.
Civil Service — Exemption — Officer — Clerk of Chief
OF Police.
The clerk of the chief of police of the city of Worcester, who is appointed by such chief of police, subject to confirmation by the city council, and whose duties are such clerical duties as may be prescribed by such chief of police, is not an "officer" within the meaning of R. L., c. 19, § 9, which excepts from the operation of the civU service law and rules " and officers . . . whose appoint- ment is subject to confirmation by the . . . city council of any city," and the appointment of such clerk must be made in accordance with the require- ments of such law and rules.
ciVifservice ^^^ rcqucst my opinion upon certain questions in regard Co^.^mis8ion. ^^ ^^^ positiou of clcrk of the chief of police of the city of Aprim. Worcester. You advise me that on Feb. 3, 1908, the city
council of that city passed an ordinance which provides as
follows : —
Section 1. In the month of February, nineteen hundred and eight, and in the month of January of each alternate year thereafter, the chief of police shall appoint a clerk, subject to confirmation by the city council as hereinafter provided.
Section 2. The appointment of clerk of the chief of police, made as provided in section one of this ordinance, shall take effect when confirmed by the city council of the city of Worcester, and approved by the mayor.
Section 3. The clcrk of the chief of police shall be under the sole direc- tion of, and his duties shall be such as are prescribed by, the chief of police.
DANA MALONE, ATTORNEY-GENERAL. 159
No statement is made by you as to the duties prescribed for ,uch clerk by the chief of police, but I assume that they are )rdinary clerical duties.
You make several inquiries, but in my view of the law a reply 0 one of them will, I think, be sufficient to enable you to per- orm your duty in the premises. This question is as follows: —
Is the appointment of a clerk of the chief of police, made under the hove ordinance and without due requisition and certification under he civil service law and rules, a legal appointment?
My answer is that such appointment is not a legal appoint- nent. The position of clerk of the chief of police is within the •ivil service rules, unless it is expressly excepted therefrom. The only exception which with any show of reason could be held 0 apply to a person holding that position is the exception of officers . . . whose appointment is subject to confirmation by he . . . city council of any city." R. L., c. 19, § 9. In my )pinion, however, a clerk of a chief of police is not an "officer" vithin the meaning of the word as here used.
That there is a distinction between public "office" and public 'employment" is well settled. Broicn v. Russell, 166 Mass, 14, 15; Attorney-General v. Drohan, 169 Mass. 534, 535. See, also, Opinion of the Justices, 166 Mass. 589. This distinction is ecognized in the statutes of this Commonwealth relating to •ivil service. R. L., c. 19, §§ 9, 23, 25, 26, 28 and 32. Cf. St. .884, c. 320, §§ 2, 14. See, also. Brown v. Russell, swpra; Opinion of the Justices, supra. The principal test as to whether )r not a position is an office, as distinguished from an employ- nent, is whether or not it involves "a delegation of a portion of he sovereign power to, and possession of it by, a person filling he office." 1 Op. Atty.-Gen. 72. The position in question loes not satisfy this requirement. The method of appointment md the period of service, whether fixed or otherwise, may prop- erly be considered in determining whether or not a position is in "office" or an "employment," but are not decisive. "The lecisive question is whether the real character and functions of he place in question make it an office or an employment in the
160 OPINIONS OF THE ATTORNEY-GENERAL.
sense of the law and in view of the distinction thereby estab- Hshed." 1 Op. Atty.-Gen. 72, 73.
The line of distinction between offices and employments is clearly not the same as that between positions in the official service and in the labor service, under civil service rules. j\Iany positions in the official service are not offices within the meaning of the word as used in section 9 of chapter 19 of the Revised Laws.
In my view of the law I am sustained by an opinion of my predecessor, from which I have quoted above, in which he stated that in his opinion a clerk to the board of overseers of the poor of the city of Lawrence, holding a position which called merely for clerical service and assistance to the chief clerk, was not an "elective officer" within the meaning of the civil service law as it then stood. St. 1884, c. 320, § 15.
The principles which I have stated are equally applicable to the position of night janitor of the city hall of Salem. The ordinary duties of a night janitor are not such as to constitute him an "officer", within the meaning of section 9 of chapter 19 of the Revised Laws.
Constitutional Law — Public Funds — Appropriation — Public Purpose — Money not directly raised by Taxation.
Since the relief of persons who have suffered los^ by fire, or by other great and general calamity, is not a public purpose which will justify the expenditiire of public funds, an appropriation of public money for such purpose is uncon- stitutional, and it is immaterial that the money sought to be so appropriated was not directly raised by taxation, but was received from the sale and rental of lands belonging to the Commonwealth.
Commiuee*on ^ havc the houor to acknowledge the receipt of a communica- ^"mi ^^^^ from the Senate committee on rules, requesting my opinion
Aprin4. «gg ^Q ^Y^^ constitutionality of the enclosed bill accompanjing
the petition of William j\I. Robinson for legislation for the relief of the sufferers by the recent fire in Chelsea." The bill sub- mitted with such communication is in the form of a resolve, and is as follows: —
Resolved, That there may be expended for the relief of sufferers from the recent fire in the city of Chelsea a sum not exceeding one hundred
DANA MALONE, ATTORNEY-GENERAL. 161
Dusand dollars, the same to be taken from the CommoDwealth's flats provement fund, created by chapter two hundred and thirty-seven of 3 acts of the j^ear eighteen hundred and seventy-eight, and to be ex- ided under the direction of the governor.
It has long been established in this Commonwealth that )ney raised by taxation may be expended only for a public rpose. Lowell v. Oliver, 8 Allen, 247, 253; Mead v. Acton, 9 Mass. 341, 344; Kingman et al., Petitioners, 153 Mass. 566; )inion of the Justices, 155 Mass. 598, 601; Opinion of the stices, 186 Mass. 603, 605; Opinion of the Justices, 190 Mass. 1, 613. And it is equally well settled that the relief of per- is who have suffered loss by fire or by other great and general amity is not in a legal sense a public purpose. So, in the ie of Lowell v. Boston, 111 INIass. 454, at page 472, in con- ering the constitutionality of St. 1872, c. 364, an act author- ug the city of Boston to issue bonds and lend the proceeds on ] )rtgage to the owners of land, the buildings upon which were rned by the great fire of 1872, the court, through Mr. Justice ells, said : —
i As a judicial question the case is not changed by the magnitude of the I amity which has created the emergency, nor by the greatness of the \ ergency or the extent and importance of the interests to be promoted. 1 ese are considerations affecting only the propriety and expediency < the expenditure as a legislative question. If the expenditm'e is, in its 1 ;ure, such as will justify taxation under any sta.te of circumstances, 1 Delongs to the Legislature exclusively to determine whether it shall be i :horized in the particular case ; and however slight the emergency, or 1 .ited or unimportant the interests to be promoted thereby, the court 1 5 no authority to revise the legislative action.
On the other hand, if its nature is sucli as not to justify taxation in any i 1 all cases in which the Legislature might see fit to give authoritj^ t irefor, no stress of circumstances affecting the expediencj^, importance ( general desirableness of tlie measure, and no concurrence of legislative i 1 municipal action, or preponderance of popular favor in am' particular ( e, will supply the element necessary to bring it within the scope of 1 islative power.
The proposed resolve does not, upon its face, disclose or indi- (te an expenditure of the sum appropriated thereby for any
162 OPINIONS OF THE ATTORNEY-GENERAL.
exclusively public purpose, and I conceive, therefore, that the precise inquiry upon which your committee seeks my opinion is the question whether or not the fact that the proposed appro- priation is to be made from a specific fund created from moneys received from the sale or use of the Commonwealth's lands (see St. 1878, c. 237) is sufficient to distinguish the present case in principle from those already cited, so as to permit an appro- priation of public monej's for purposes not strictly public.
Upon this question I am constrained to advise your com- mittee that in my opinion it is immaterial that the proposed resolve contemplates an expenditure of money which was not raised directly by taxation, but which was received from the ,. sale and rental of lands belonging to the Commonwealth. I
It must, I think, be obvious that money so received is aE asset of the Commonwealth and is public money available foi public purposes, and that its employment for other than publi( purposes must necessarily require sums to replace it which cai be raised only by taxation. Upon this point my opinion is con firmed by the language of the highest court of the Common wealth in considering St. 1904, c. 458, an act which providec for the payment of bounties to certain veterans of the civil wai (Opinion of the Justices, 186 Mass. 603, 605), which was as follows : —
Section 6 authorizes an issue of bonds of the Commonwealth to provide for the pajTnents to be made under the act, and authorizes an appropria- tion of money to pay the bonds, out of the sums that shall be received from the United States government for expenses incurred by the Common- wealtli in connection with the civil war. Under St. 1903, c. 471, these sums are to be paid into the treasury of the Commonwealth for the reduc- tion of the pubhc debt, and the effect of the statute before us is to take from the treasury, for the pajanent of these bounties, money which ultimately can be replaced onlj^ by taxation. We are therefore brought to the question whether it is in the power of the Legislature to tax the people of the Commonwealth to provide money for this purpose.
Moreover, the question seems also to have been decided m Loioell V. Boston, above cited, where, on page 461, the court say: —
DANA MALONE, ATTORNEY-GENERAL. 163
The incidental advantage to the pubhc or to the State, which results cm the promotion of private interests and the prosperity of private iterprises or business, does not justify their aid by the use of public oney raised by taxation, or for which taxation maj'- become necessary.
Since the resolve under consideration provides for the expendi- I're of money from the public treasury for purposes not neces- rily public, which can be ultimately replaced only by taxation, am unable to distinguish between the present case and those ses which have been discussed; and I must, therefore, advise e honorable Senate committee on rules that in my opinion the solve as submitted to me is not in conformity with the Consti- tion of the Commonwealth.
)RPORATioN — Foreign Corporation — Laws of District OF Columbia.
1903, c. 437, § 56, which defines a foreign corporation to be any corporation organized "under laws other than those of the commonwealth for the purposes for which domestic corporations may be organized under the provisions of section seven" of such chapter, extends to and includes a corporation chartered under the general laws of the District of Columbia.
You request my opinion upon the followina; question: — xothe
^ Commissioner
of Corpora- Is the fact that a corporation is organized under the general laws of the ^°m8 j strict of Columbia a reason sufficient to excuse said corporation from ^^"^ "^" ! ng its annual certificate of condition and paying the excise tax as 1 [uired of foreign corporations b}^ chapter 437 of the Acts of 1903?
I am of opinion that your question should be answered in the igative. A corporation chartered by Congress legislating di- I'tly for the District of Columbia is a foreign corporation nhin the meaning of St. 1903, c. 437, § 56, which defines the tm " foreign " corporation " as including every corporation (artered "under law^s other than those of the commonwealth I' purposes for which domestic corporations may be organized vder the provisions of section seven." See Daly v. National J^e Insurance Co., 64 Ind. 1; Layden v. Knights of Pythias,
164 OPINIONS OF THE ATTORNEY-GENERAL.
128 N. C. 546. The regulation of such a corporation is not an interference with interstate commerce, nor is it an interference with the carrying on of governmental functions.
Civil Service Commission — Certificatiox of Pay Rolls OF THE City of Boston — Police Force.
Members of the police force of the city of Boston are not persons "in the service oi employment of the city of Boston," within the meaning of St. 1908, c. 210 providing in substance that the Civil Service Commission shall certify all pay rolls, bills and accounts for salary or compensation of persons in th( service or employment of such city.
Jp ^.Jie . You ask mv opinion as to whether the Police Commissioneii
Civil bervice ^ i t
^igos'^^'""' ^^^ members of the police force of the city of Boston are per-| Apni^s. g^j^g ajj^ ^j^g service or employment of the city of Boston,"
wuthin the meaning of chapter 210 of the Acts of 1908, in sub stance providing for the certification by the Civil Service Com' mission of all pay rolls, bills and accounts for salary of persons in the service of the city of Boston.
I am of opinion that they are not. St. 1906, c. 291, § 8 provides that: —
All expenses for the maintenance of buildings, the pay of the police clerks, stenographers and other emploj^ees, and all incidental expenses incurred in the performance of the duties of said commissioner or in th( administration of said police, shall be paid by the city of Boston upoD the requisition of said police commissioner.
The Legislature has established a special public officer, ap pointed by the Governor, independent of any control or direc tion on the part of the city of Boston, as the head of the police department of such city. The city has no control over him oi the police officers. That statute requires the payment of the bills upon the requisition of the Police Commissioner. Undei these circumstances, I am of opinion that chapter 210 of the) Acts of 1908 does not apply. See Malioncy v. Boston, 171 Mass. 427.
DANA MALONE, ATTORNEY-GENERAL. 165
Ietropolitan Park Commission — Rules and Regulations FOR Government of Police Force — Punishment of Breach of Regulations by Forfeiture of Pay — Transfer — Civil Service — Veteran — Waiver by Officer of Benefit of Civil Service Rules.
le Metropolitan Park Commission under existing provisions of law has authority to establish rules for the government of its police force, and under such rules to punish a police officer, who has committed an offence, by a forfeiture of pay for a period not exceeding thirty days ; or to transfer a poHce officer who is a veteran from a reservation or parkway in one city or town to a reserva- tion or parkway in another city or town within the jurisdiction of such commission.
le authority of the Metropohtan Park Commission in the premises is not limited by St. 1904, c. 314, § 1, which provides that persons holding office or employ- ment in the public ser\'ice of the Commonwealth, classified under the civil service rules, "shall hold such office or emploj^ment and shall not be removed therefrom, lowered in rank or compensation, or suspended, or, without his consent, transferred from such office or employment to any other except for just cause and for reasons specifically given in writing; or by St. 1905, c. 150, § 1, and R. L., c. 19, § 23, which extends a like protection to veterans in the public service of the Commonwealth.
1 agreement signed by a police officer upon entering the ser\'ice of the Metropolitan Park Commission, to the effect that he will obey and be bound by such rules and regulations as are or may be from time to time adopted by such com- mission, would not constitute a waiver by such officer of any rights under the statutes above quoted; and such agreement is material only as evidence that at the time of entering the service of such commission the subscriber was aware of the rules and regulations then in force.
In a letter of recent date you state that the Metropolitan to the Metro-
1 /-I . . . . 1 1 • p politan Park
irk Commission request my opinion as to the authority or commission.
le commission in certain matters pertaining to the adminis- May 25.
ation of its police force, and you call my attention to a rule
ily enacted by vote of the commission, and now in force, for
e government thereof, to the effect that any member of such
rce may be punished by the Board in its discretion, either by
primand, by forfeiture of pay for not exceeding thirty days for
ly one offence, by being reduced in rank, or by dismissal from
e force on conviction by the commission of any one of a num-
T of enumerated offences, such as intoxication, any act of
subordination, neglect of duty, neglect or disobedience of
ders, any legal offence, immoral conduct, etc. You also have
lied to my attention the following agreement, which every
lOG OPINIONS OF THE ATTORNEY-GENERAL.
police officer upon entering the service of the commission is re- quired to sign: —
In consideration of my employment as a member of the Metropolitan Park Police, I agree to obey and be bound by such rules and regulations as are or may be from time to time adopted for the govermnent of the Police Department of the Metropolitan Park Commission.
The specific questions to which you request answers, in the order in which you ask them, are: —
1. If the Board finds a police officer guilty of any offence under this rule, has it the authority to punish such officer by forfeiture of his pay for a period not exceeding thirty days?
2. Is such a forfeiture a lowering of " compensation" within the meaning of St. 1904, c. 314, § 1, or of St. 1905, c. 150, § 1?
3. If such police officer so found guilty is a veteran within the meaning of R. L., c. 19, § 20, has the Board authority to impose upon him, without a hearing before the Board of Conciliation and Arbitration, a punishment not amounting to a transfer from his office or employment, an abolition of his office or a lowering of compensation, within the meaning of said chapter 150 of the Acts of 1905?
4. If the Board transfers a police ofP-cer who is a veteran from a reserva- tion or parkway in one town where he has been performing police duty to a reservation or parkway in another city or town for service, is such transfer a transfer of office or employment within the meaning of said act of 1905, so that such officer is entitled to a hearing before said Board of Conciliation and Arbitration?
5. Whether or not the signing of the agreement quoted, by a police officer upon entering the service of the commission, has any effect upon his legal obUgations to the commission and upon the authority^ of the commission over him?
The answers to the first three questions depend, of course, upon the authority of the commission to make rules for the administration of its police force, and upon the authority of the commission in the enforcement of those rules to punish viola- tions of the rules.
It may be assumed as beyond dispute that the Legislature, in giving to the commission its powers, intended to confer upon it exclusive and complete authority and control over the reserva-
DANA MALONE, ATTORNEY-GENERAL. 167
tions and parkways acquired by it. St. 1893, c. 407, § 4; St. 1894, c. 288, §§ 1 and 3. 1 Op. Atty.-Gen. 588, 590; 2 Op. Atty.-Gen. 303, 366. In furtherance of this object, the com- mission is given power to employ a suitable poUce force, and the policing of the reservations and parkways obviously, therefore, becomes as much a part of the duty of the commission as the doing of any other duly authorized act of administration and maintenance. The express grant of authority to employ a suit- able police force would, however, be somewhat futile if it did not carry with it, at least by implication, the authority to enact reasonable rules for the effective administration of that police force. It obviously follows, also, that the power to enact rules and regulations would be a useless power if it were not accom- panied by the authority to enforce by reasonable means obedi- ence to those rules and regulations. The position of the com- mission in these matters is not to be distinguished from the position of every public officer in similar matters; and therefore the familiar principle is applicable, that public officers have not only the powers expressly conferred upon them by law, but also by necessary implication such powers as are requisite to enable them to discharge the official duties devolved upon them. 23 Am. & Eng. Ency. Law. 365. Vose v. Deane, 7 Mass. 280.
Moreover, the power of the commission to enforce by reason- able measures discipline in its police force results not only from the very nature of the authority and responsibility conferred upon the commission by law, but also from the nature of the oflSce of a police officer. The police officer, in his employment, is not acting under a contract, strictly speaking, but he is essen- tially a State oflBcer bound to preserve its peace and to execute its laws. Philliys v. Boston, 150 Mass. 491. The conditions of his employment are, therefore, not fixed by contract, and his duties and responsibilities are not to be interpreted by the rules governing the interpretation of contracts. He is responsible to the superior agency of the government which appoints him, and must conform in the performance of his duties to such reason- able conditions as such superior agency may prescribe.
IG8 OPINIONS OF THE ATTORNEY-GENERAL.
jNIy opinion upon the question of the general authority of the commission, therefore, is that the commission has authority to establish rules for the government of its police force, and under those rules to punish a police officer who has committed an offence. This opinion seems to be amply sustained by Malcolm V. Boston, 173 Mass. 312.
Your first question asks whether the commission have author- ity in the exercise of this general power to impose as a specific penalty forfeiture of pay for a brief period not exceeding thirty days. From what has already been said it follows that the commission have this authority, unless it has been taken from them by statutory modification of their general powers. The general powers of the commission have been somewhat qualified by the statutory requirements in the cases of persons not veterans who are employed under the civil service law. St. 1904, c. 314, provides: —
Section 1. Every person holding office or employment in the public .service of the commonwealth or in any countj'^, city or town thereof, classified under the civil service rules of the commonwealth, shall hold such office or employment and shall not be removed therefrom, lowered in rank or compensation, or suspended, or, without his consent, trans- ferred from such office or employment to any other except for just cause and for reasons specifically given in writing.
Section 2. The person sought to be remqved, suspended, lowered or transferred shall be notified of the proposed action and shall be furnished wit h a copy of the reasons required to be given by section one, and shall, if he so requests in writing, be given a public hearing, and be allowed to answer the charges preferred against him either personally or by counsel. A copy of such reasons, notice and answer and of the order of i-cnioval, suspension or transfer shall be made a matter of public record.
But the effect of these qualifications is rather a prescription as to the method of enforcing the powers already possessed than a curtailing of the powers. The statute quoted was amended by St. 1905, c. 243, by adding to section 2 the following: —
provided, hoivever, that nothing contained in this act shall be construed to prevent temporary suspension for a period not exceeding thirty days made without compliance with the provisions of this act and pending further action under this act.
DANA MALONE, ATTORNEY-GENERAL. 109
In my opinion there is nothing in these statutes which de- prives the commission of the authority which it had under its general powers to punish an ojfficer guilty of an offence by a forfeiture of his pay for a period not exceeding thirty days, and I therefore answer your first question in the affirmative.
The answer to your second question is embraced in the an- swer to the first; but answering it upon the particular point raised, as to whether such a forfeiture is a lowering of compen- sation within the meaning of the statute cited, I am of opinion that it is not. The compensation of an officer is not lowered, within the meaning of the statute, unless the rate of compensa- tion be lowered.
The provision in regard to increasing or diminishing tlic pay manifestly refers to the salary which has been or may be established, and not to such reductions as may occur through fines or forfeitures established to preserve and promote the discipline and efficiency of the force. Morton, J., in Malcolm v. Boston, 173 Mass. 321.
Your third question raises the point of the authority of the commission over the members of its police force who are veterans within the meaning of R. L., c. 19, § 20, and are there- fore entitled by law to certain special privileges. The authority of the commission over the veterans in its police force does not differ from its authority over other members of the force, except so far as that authority may have been qualified by statute. The only modification of the general authority of the commis- sion as above stated, so far as it applies to veterans, is in St. 1905, c. 1.50, amending R. L., c. 19, § 23, so as to read as follows: —
No veteran who holds an office or employment in the public service of tb.e commonwealth, or of any city or town therein, shall be removed or suspended, or shall, without his consent, be transferred from, such office or employment, nor shall his office be abohshed, nor shall he be lowered in rank or compensation, except after a full hearing of which he shall have at least seventy-two hours' written notice, with a statement of the reasons for the contemplated removal, suspension, transfer, lowering in rank or compensation, or abolition. The hearing shall be before the state board of conciliation and arbitration, if the veteran is a state em-
170 OPINIONS OF THE ATTORNEY-GENERAL.
ployee, or before the maj^or of the city or selectmen of the town of wliich he is an employee, and the veteran shall have the right to be present and to be represented by counsel. Such removal, suspension or transfer, lowering in rank or compensation, or such aboUtion of an office, shall be made only upon a written order stating fully and specifically the cause or causes therefor, and signed by said board, mayor or selectmen, after a hearing as aforesaid.
In my opinion, none of the provisions of the act cited curtail the authority which the commission had under its general powers to impose upon a poUce officer, who is a veteran and has been found guilty of an offence, a punishment not amounting to a transfer of his office or employment, an abolition of his office or a lowering of his rank or compensation without a hearing before the State Board of Conciliation and Arbitration. I therefore answer your third question in the affirmative.
The fourth question I answ^er in the negative. The transfer of a police officer who is a veteran, from a reservation or park- way in one tow^n to a reservation or parkway in another city or town within the jurisdiction of the commission, assuming that his service is that of police duty in each place, is not a transfer of office or employment within the meaning of St. 1905, c. 150, above cited. His office under the transfer is still that of a police officer, and his employment is still that of police duty; the officer himself has been transferred from one locality to an- other, but there cannot be said to have been a transfer either of office or employment, within the meaning of the act, the obvi- ous purpose of which is to prevent changes of grade and classification.
In reply to your inquiry as to the effect upon the legal obliga- tions of a police officer to the commission, and upon the author- ity of the commission over him, resulting from the signing of the agreement quoted upon entering the service of the commission, my opinion is that the signing of the agreement has little if any effect upon the legal obligations of the officer to the commission, and no legal effect upon the authority of the commission over him. Even if the agreement was made by the officer for w^hat can actually be proved to be a good consideration, it is hard to
DANA MALONE, ATTORNEY-GENERAL. 171
see any practical value to the commission in the technical civil right thus acquired in addition to the greater rights which it already possessed under its general authority, and it is clear that it does not affect the authority of the commission over the DfRcer.
By signing such an agreement the officer cannot, in my opin- ion, be held to have waived any rights under the civil service law. The civil service law applicable to the case is to be re- garded as a general law, and an agreement to waive the provi- sions of a general law of this nature is generally held to be invalid as opposed to public policy. See Washington National Bank v. Williams, 188 Mass. 103.
The only practical value of the signing of such an agreement is that evidence is furnished that the officer, at the time of SQtering the service of the commission, knew of the rules estab- lished by it, which evidence might become material in any hearing upon the case.
Insurance — Officer or Director of Insurance Company — Investment of Funds.
By R. L., c. 118, § 25, relating to domestic insurance companies, it is provided that "no officer of the company, and no member of a committee thereof, charged with the duty of investing its funds, shall borrow the same or be directly or indirectly liable for, or on account of, loans thereof to others;" and a director of such an insurance company who is also a member of the finance committee thereof violates such provision by renewing a mortgage loan or by giving a new loan to trustees of a real estate trust of which such director was both a trustee and a shareholder, the legal title to the trust estate being in the trustees and the equitable title thereto in such persons as are for the time being shareholders.
You ask my opinion whether a director of a domestic insur- to the ance company, who was also a member of the finance committee commissioner. and "charged with the duty of investing its funds," has violated June 3. the provisions of R. L., c. 118, § 25, by (a) renewing a mortgage loan to certain trustees of a real estate trust of which the di- rector was both a trustee and a shareholder; and (6) making a new loan to another real estate trust of which the director was also a trustee and a shareholder.
OPINIONS OF THE ATTORNEY-GENERAL.
The dates of these occurrences are subsequent to the Revised Laws, but prior to the going into effect of St. 1907, c. 576, and consequently the question is one to be determined by the lan- guage of the Revised Laws. This section provides in part that : —
No officer of the company and no member of a committee thereof charged with the duty of investing its funds sliall borrow the same or be directly or indirectly liable for or on account of loans thereof to others; nor shall any director or other officer take or receive to his own use any fee, brokerage, commission, gift or other consideration for or on account of a loan made by or on behalf of such company.
Copies of the declarations of trust have been submitted to me. In each declaration of trust the following provision appears: —
The trustees shall have no power to bind the shareholders personally. In every written contract they may make, reference shall be made to this declaration of trust. The person or corporation contracting with the trustees shall look to the funds and property of the trust for the payment under such contract, or for the payment of any debt, mortgage, judgment or decree, or of any money that may otherwise become due or payable by reason of the failure on the part of said trustees to perform such contract in whole or in part, and neither the trustees nor the shareholders, present or future, shall be personally liable therefor;
and each declaration of trust provides that the term "share holder" shall mean holder of record of a receipt or a certificate from the trustees thereunder. It is clear, I think, that the whole legal title to the trust estate is in the trustees, and that the whole equitable title is continuously in such persons as are for the time being shareholders under the declaration of trust. See Howe v. Morse, 174 Mass. 491, 503.
Copies of the mortgage notes have also been submitted to me, from which it appears that the trustees under the declarations of trust, to which reference was therein expressly made, did "as trustees thereunder, but not individually, promise to pay" the amount of the mortgage to the insurance company.
As was pointed out in the case of Bowditch v. Neiv England Life Imurance Co., 141 Mass. 292, 295, referred to in your letter to me, the statute under discussion — ^1
DANA MALONE, ATTORNEY-GENERAL. 173
is designed to forloid officers, who are charged with the dutj'- of investing the funds of the corporation, borrowing of themselves, and thus to prevent the risk of the funds being invested bjr them, under the promptings of self-interest, upon insufficient securitj^ In other words, the purpose is to protect the corporation and the policy holders from the dishonesty or self-interest of the officers. It is intended as a shield to the corporation.
Adopting this exposition of the purpose of the statute, I am of opinion that the director mentioned by 3'ou, charged with the duty of investing the funds of a domestic insurance company, has violated the provisions above quoted, inasmuch as he, as trustee, and while an owner of shares in the trust, has borrowed money of the corporation, and thus created a debt for which the property of the trust is liable to be taken on execution. Al- though the director is not apparently directly or indirectly per- sonally liable for or on account of the loan, yet, as owner of both the legal title and a portion of the equitable title of the property which is directly liable, I conceive that he is brought within the rule laid down in the case above cited, because the loan might be made "under the promptings of self-interest, upon insufficient security."
Subsequent to the doing of the acts referred to by you, the law was changed by St. 1907, c. 576, § 26, which now provides in part that: —
All investments and deposits of the funds of the company shall be made in its corporate name, and no director or other officer thereof, and no member of a committee having any authority in the investment or dis- position of its funds, shall accept, or be the beneficiary of, either directly or remotely, any fee, brokerage, commission, gift or other consideration for or on account of any loan, deposit, purchase, sale, payment or exchange made by or in behalf of such companj'', or be pecuniarilj'^ interested in any such purchase, sale or loan, either as borrower, principal, co-principal, agent or beneficiary except that if a policy holder he shall be entitled to all the benefits accruing under the terms of his contract.
In my opinion, the acts of the director above set forth would be clearly in violation of the law as it stands to-dav.
174 OPINIONS OF THE ATTORNEY-GENERAL.
State Highway — Defect or Want of Repair — Liability OF Commonwealth — Construction or Repair — Use OF Liquid Asphalt — Damage.
By the provision of R. L., c. 4t, § 13, that "the commonwealth shall be liable for injuries sustained by persons while traveling on state highways in the manner and subject to the limitations, conditions and restrictions provided in sections eighteen, twenty and twenty-one of chapter fifty-one, except that notice of the injury shall be given to a member of the commission or to its secretary," no liability is imposed upon the Commonwealth for damages to the person or property of a traveler upon a State highway other than for damages caused by reason of a defect or a want of repair or of a sufficient railing in or upon such highway. To constitute such defect or want of repair there must be something in the condition of the highway, either by reason of defective construction or want of repair or in the nature of an obstruction, which is dangerous to the safety of the person or property of the traveler; and where the property of such traveler upon a State highway is damaged by splashes of liquid asphalt used in connection with the construction or repair of such highway, the statute above cited affords no remedy.
>ias'J^chu3etts The Massachusctts Highway Commission has referred to me commTssion. foF siich action as I may deem proper certain claims for damage June 16. to the Wearing apparel and vehicles of travelers upon State
highways, occasioned by preparations used in the repair and maintenance of such highways. Of these claims, the case pre- sented in the communication from one Leon Samuels appears to be typical. The facts as stated by the claimant are: —
It appears that while going through a certain portion of the road which was under repair, a part which was tarred over had proper signs theieon, denoting that it was not open for travel; another part, however, which was completely covered with dirt and gravel, had no such signs, thereby indicating that it was open for travel. In crossing said supposedly com- pleted part in her automobile, she [the wife of the claimant] was splashed with tar which apparently had not hardened into condition to make the road fit for traffic, and as a result her automobile coat, Panama hat, pair of gloves and chiffon veil were completely ruined, and occasioned a loss of SIOO.
Other claims are made by H. C. Poore and G. F. Saumsiegle, respectively, for damages occasioned by liquid asphalt used in sur- facing a State highway. In both of these cases the report of the division engineer states that proper signs and warnings were dis- played, calling attention to the condition of the road at the time.
DANA MALONE, ATTORNEY-GENERAL. 175
The liability of the commission is fixed by R. L., c. 47, § 13, which is as follows : —
The commonwealth shall be hable for injuries sustained by persons while traveUng on state highways, in the manner and subject to the limitations, conditions and restrictions provided in sections eighteen, twenty and twentj^-one of chapter fifty-one, except that notice of the injiuy shall be given to a member of the commission or to its secretar}'. The commonwealth shaU not be liable for an injury which may be sus- tained upon the sidewalk of a state highway or during the construction of such liighway. The amount wliich may be recovered for anj such injury shall not exceed one-fifth of one per cent of the state valuation last preceding the commencement of the action of the city or town in which the injurj^ was received, nor shall it exceed four thousand dollars.
Section 18 of chapter 51 of the Revised Laws, above referred to, is as follows: —
If a person sustains bodily injury or damage in his property by reason of a defect or a want of repair or a want of a sufficient raihng in or upon a way, causeway or bridge, and such injmy or damage might have been prevented, or such defect or want of repah or want of railing might have been remedied by reasonable care and diligence on the part of the county, city, town or person by law obliged to repair the same, he may, if such county, cit}', to^\^l or person had or, by the exercise of proper care and dihgence, might have had reasonable notice of the defect or want of repair or want of a sufficient railing, recover damages therefor from such county, city, to'W7i or person; but he shall not recover from a county, city or town more than one-fifth of one per cent of its state valuation last pre- ceding the commencement of the action nor more than four thousand dollars, and no action therefor shall be maintained by a person whose carriage and the load thereon exceeds the weight of six tons.
It has been held that there is no liability upon a city or town for damages to the person or property of a traveler upon its ways, except such as is fixed and imposed by statute. Monies V. Lyn7i, 121 Mass. 442. And such damage must be caused by reason of "a defect or a want of repair or a want of a sufficient raihng in or upon a way, causeway or bridge." The question to be determined is, therefore, whether the application of liquid asphalt or tar in connection with the construction of a highway
176 OPINIONS OF THE ATTORNEY-GENERAL.
in and of itself constitutes a defect or a want of repair in the highway, within the meaning of the statute.
It is, I think, obvious that the application of the substance above mentioned to the highway cannot constitute "a want of repair," if, as must be assumed, it is a proper material to be used in the repair and maintenance of the surface of a highway, and is properly applied without negligence upon the part of .the contractor or of the agents of the Commonwealth.
The statutes have nowhere defined what is to be considered as a "defect."
The duty of a town is to make the highway safe and con- venient for travelers. Raymond v. Lowell, 6 Cush. 524; Horfon V. Ipsiuich, 12 Cush. 488. In the present case no question of the safety of the traveler arises, since the injury is analogous to that occasioned by the spattering of mud or water from the moist surface of the highway, which latter does not constitute a defect. See Stone v. Ilubbardsion, 100 Mass. 49, 56; McAidei V. Boston, 113 Mass. 503; Williams v. Lawrence, 113 Mass 506; McGowan v. Boston, 170 INIass. 384. Taking all the cases together, I am of opinion that, in order to constitute a defect within the meaning of the statute, it is necessary that there should be something in the condition of the highway, either h} reason of defective construction or want of repair or in th( nature of an obstruction, which is dangerous to the safety of th( traveler, and not merely damaging to the appearance of hi; attire or to the conveyance in which he travels. Here the roac was properly posted, so as to draw the attention of the travelei to its condition of recent repair and to put him upon his guarc in passing across it, and the only result of the application o the material by which damage was occasioned would have been had these warnings been heeded, the inconvenience of seeking another route of travel. For mere inconvenience, occasione( even by a defect, there appears to be no remedy given under thi statutes. Brailey v. Southhorough, 6 Cush. 141; Holman v Townsend, 13 Met. 297, 299; Smith v. Dedham, 8 Cush. 522.
I am further of the opinion that even if the method of th, application of the liquid asphalt to the way in question was im
DANA MALONE, ATTORNEY-GENERAL. 177
])roper or negligent npon the part of the contractor or agents of the Commonwealth, such negligence would not make the exist- ence of liquid asphalt upon the surface of the way a defect, within the meaning of the statute. For mere negligence of cities or towns, not constituting defects in the way, the statute in question affords no remedy. See Billings v. Worcester, 102 Mass. 329, 333.
I am therefore of the opinion that the claims in these in- stances have no basis in law, and that the Commonwealth is not liable therefor.
Labor — Employment of Children — Child under Four- teen Years of Age — Certificate of Ability to Read AND Write — Factory or Workshop.
Under the provisions of R. L., c. 106, § 28, as amended bj^ St. 1905, c. 267, § 1, that "no child under the age of fourteen years and no child who is over four- teen and under sixteen years of age who does not have a certificate as required by the following four sections certifying to the child's ability to read at sight and to write legibly simple sentences in the English language shall be employed in any factory, workshop or mercantile establishment," no school committee or superintendent of schools or other person is authorized to issue to a child under fourteen years of age the certificate above referred to, and such child may not at any time be employed in a factory or workshop.
Your communication of recent date requests my opinion xo the upon certain questions relative to the interpretation to be given Massachusetts to R. L., c. lOG, § 28, as amended by St. 1905, c. 267, § 1. D'«*ftP°'-^-
The statute above referred to, as amended by St. 1905, c. 267,
§ 1, is as follows: —
No child under the age of fourteen years and no child who is over fourteen and under sixteen years of age who does not have a certificate ' as required by the following four sections certifying to the child's ability to read at sight and to wTite legibly simple sentences in the English language shall be employed in any factory, workshop or mercantile es- tablishment. No child under the age of fourteen years shall be employed at work performed for wages or other compensation, to whomsoever pay- able, during the hours when the public schools of the city or town in which he resides are in session, or be employed at work before six o'clock in the morning or after seven o'clock in the evening.
178 OPINIONS OF THE ATTORNEY-GENERAL.
A modification of St. 1905, c. 267, has, however, been made by St. 1906, c. 284, § 2, which is as follows: —
Minors to whom said chapter two hundred and sixty-seven applies shall be permitted to work on Saturdays between the hours of six in the moniing and seven in the evening, in mercantile establisliments.
The specific questions upon which my opinion is required are: —
Can d cMld under fourteen years of age, and who has a certificate from the authorized school authorities certifying the child's ability to read at sight and to wiitc logibly simple sentences in the English language, be legally employed in any factoiy, workshop or mercantile establishment during the hours when the public schools of the city or town in which he resides are not in session?
If a child under fourteen years of age can read at sight and write legibly simple sentences in the English language, can the school committee, superintendent of schools, or person authorized by the school committee, issue him a certificate as provided in section 32, chapter 106, Re\ised Laws?
Since both questions refer to the possession by a child of a^ certificate issued by the school authorities certifying to the ability of the child to read and write, it may simplify the issues if I state at the outset that in my opinion the provisions of the statutes quoted and the subsequent sections of chapter 106 of the Revised Laws, relative to the certificate mentioned, have no application whatever to a child under fourteen years of age.
It therefore follows that the fact stated in your first question, that the child under fourteen years has a certificate of ability to read and write, can have no bearing upon the question as to the legality of the employment of the child in a factory, workshop or mercantile establishment during the hours when the public schools of the city or town in which he resides are not in sessionj
By the provisions of R. L., c. 106, § 28, as amended by St.1 1905, c. 267, § 1, quoted above, the employment of any childl under fourteen years of age in any factory, workshop or mer- cantile establishment, was absolutely prohibited.
The employment of a child over fourteen years of age, but
DANA MALONE, ATTORNEY-GENERAL. 179
inder sixteen, was prohibited, unless that child had attained to
prescribed degree of education, and could obtain a certificate rom the proper authorities certifying to that fact.
The obvious intent of the statute was to preserve the original (revision of the statute preventing the employment of a child inder fourteen years of age, under any circumstances, in a work- hop, factory or mercantile establishment; and, further, to pro- ide additional opportunity for the education of children by reating a second class of children, consisting of those more han fourteen but less than sixteen years of age, who might not >e employed in the establishments specified until they were able 0 pass a prescribed educational test.
Construing the provisions of the statute, therefore, in accord- nce with the clear purpose of the act, it is obvious that the )rovisions relative to the educational qualification refer only to he second class mentioned, — the children between fourteen ind sixteen years of age.
Construing the provisions of the statute according to the well- ecognized rule of statutory construction, — that a limiting :lause is to be confined in its application to the last antecedent mless the subject-matter of the act requires a different con- truction, — the same conclusion is reached.
The modification of St. 1905, c. 267, by St. 1906, c. 284, § 2, quoted above, permits the employment of the minors to whom 5t. 1905, c. 267, applies, on Saturdays between the hours of 6 in ;he morning and 7 in the evening in mercantile establishments, md leaves unchanged the law as to employment in factories and vorkshops.
Upon your first question, therefore, my opinion is that a child mder fourteen years of age may not be employed in a factory )r workshop at any time, and may be employed in a mercantile establishment only on Saturdays between the hours of 6 in the norning and 7 in the evening.
Upon your second question my opinion is, that no school .'ommittee, superintendent of schools or other person is author- zed by the statutes to issue to a child under fourteen years of ige a certificate under the provisions of R. L., c. 106, § 32.
July 9.
180 OPINIONS OF THE ATTORNEY-GENERAL,
Proprietary or Patent Medicines — Label — Fractional Part of Original Package — Prosecution — Public Notice — State Board of Health.
St. 1906, c. 386, as amended by St. 1907, c. 259, providing in section 1 that "upon every package, bottle or other receptacle holding any proprietary or patent medicine . . . shall be marked or inscribed a statement on the label of the quantity or proportion of each of said substances contained therein," requires that the container of fractional parts sold from the original package by pre- scription shall be also marked with the prescribed label.
The provision of St. 1906, c. 386, § 6, as amended by St. 1907, c. 259, that the State Board of Health shall not cause the prosecution of persons violating the provisions of such act "for the sale at retail or for the gift or exchange of any patent or proprietary medicine or food preparation containing any drug or preparation the sale of which is prohibited or restricted as aforesaid," until after public notice, is not applicable to sales of unlabeled quantities.
sute Board ^'^^ Fcquest my opinion as to the construction to be given
°mf'^' to St. 1906, c. 386, as amended by St. 1907, c. 259. Section 1
of the amended act, so far as it is material upon the questions
presented, is as follows : —
Upon every package, bottle or other receptacle holding any proprietary or patent medicine, or any proprietary or patent food preparation, which contains alcohol, morphine, codeine, opium, heroin, chloroform, cannabis indica, chloral hydrate, or acetanilid, or any derivative or preparation of any such substances, shall be marked or inscribed a statement on the label of the quantity or proportion of each of said substances contained therein. The size of type in which the names of the above substances shall be printed on the labels as above, shall not be smaller than eight point (brevier) caps: provided, that in case the size of the package will not permit the use of eight point cap type the size of the type may be reduced proportionately. The provisions of section nineteen of chapter seventy-five of the Revised Laws, so far as they are consistent herewith,! shall apply to the manner and form in which such statements shall bei marked or inscribed.
Section 3 prohibits the sale of any patent or proprietary med- icine containing certain substances.
Section 4 prohibits the sale of certain drugs except under cer- tain restrictions.
Section 5 exempts certain classes from the prohibitions of sec- tions 3 and 4. »
DANA MALONE, ATTORNEY-GENERAL. 181
Section 6 is as follows : —
Whoever manufactures, sells or offers for sale any medicine or food reparation in violation of the provisions of this act shall be punished y a fine of not less than five nor more than one hundred dollars. It hall be the duty of the state board of health to cause the prosecution f all persons violating the provisions of this act; but no prosecution shall e brought for the sale at retail, or for the gift or exchange of any patent r proprietary medicine or food preparation containing any drug or reparation the sale of which is prohibited or restricted as aforesaid, nless the said board has, prior to such sale, gift or exchange, given public otice in such trade journals or newspapers as it may select that the ift, exchange or sale at retail of the said medicine or food preparation ■Quld be contrarj^ to law.
You state that a number of retail druggists have asked rhether it is necessary for them, within the meaning of the hove statute, to label with the prescribed label fractional parts old from the original package by prescription; and they have lointed out the practical difficulty in carrying a stock of labels dT the very large variety of patent medicines which they are bliged to sell.
It seems to me that the law requires the labeling of the con- ainer of fractional parts of the original package. The language ■f the act is very comprehensive, — " every package, bottle or 'ther receptacle holding any proprietary or patent medicine." -^hese words must be given their ordinary meaning, unless some eason appears for giving them a different meaning. If the -legislature had intended the act to apply only to original pack- ges, it would have been easy so to limit the scope of the act. Che words should also be interpreted in such a way as to carry tut what appears to have been the intent of the Legislature. Che most obvious and natural purpose of the act is the protec- ion of all who are to buy the patent and proprietary medicines, t cannot have been the intent of the Legislature to protect •nly the druggists dealing in these medicines; and yet, if a ractional part of the original package is not to be marked, he public are no better informed as to the ingredients of vhat they are buying than they were before the passage of
182 OPINIONS OF THE ATTORNEY-GENERAL.
the act, unless they take pains to ask to be shown the original package.
As to the second point, by section 6 the seUing without label of patent or proprietary medicines in any quantity is made a distinct offence with a fixed penalty, and the offender is liable to a penalty upon the commission of the offence. The clause o) the statute referring to prosecution after public notice refers tc the sales prohibited and restricted by sections 3 and 4, which dc not include and are not to be construed as connected with the sale of an unlabeled quantity.
Public Officer — Register of Deeds — Official Bond.
A bond given by the register of deeds of a county to the county commissioner; thereof, and running to such commissioners, does not satisfy the requiremen of R. L., c. 22, § 7, that "each register shall give bond to the county for th( faithful performance of his official duty, with such sureties and in such mm as the commissioners or mayor [in the county of Suffolk] respectively shal approve."
Controller Replying to your letter, in which you ask whether it is im-
AcSS* perative that a bond of a register of deeds run to the treasurei
September 20. of thc couuty, or whether a bond given to the county commis-
sioners is sufficient, I have to inform you that the statute
applicable to the matter is R. L., c- 22, § 7, which reads as
follows : —
Each register of deeds, except in the county of Suffolk, shall be sworn before the county commissioners and, in the county of Suffolk, before one or more of the aldermen of the city of Boston. Each register shall give bond to the county for the faithful performance of his official duty Avith such sureties and in such sum as the commissioners or mayor, re- spectively, shall approve.
It is therefore necessary that to comply with the statute the bond in question should run to the county of Dukes County, and not to either the county commissioners or the county treas- urer. I therefore must advise you that all public officials should be required to give bonds strictly complying with the
DANA MALONE. ATTORNEY-GENERAL. 183
•ovisions of the above statute, and bonds not in statutory rm should not be held by the supervising authorities to be ifficient or accepted as such.
i.viNGS Banks — Authorized Investments — Bonds, Cou- pon Notes or Other Evidences of Indebtedness of the New York, New Haven & Hartford Railroad Com- pany.
mds, coupon notes or other evidences of indebtedness of the New York, New Haven &. Hartford Railroad Company, a corporation chartered by the laws of this Commonwealth, payable more than twelve months after the date of issue and issued prior to the passage of St. 1908, c. 620, in excess of the capital stock of such railroad corporation, which do not fall within any of the excep- tions set forth in St. 1906, c. 463, part II., § 66, are issued in violation of the provision of such section that "a railroad corporation, unless expressly authorized by its charter or by special law, shall not issue bonds, coupon notes or other evidences of indebtedness payable at periods of more than twelve months after the date thereof to an amount which, including the amount of all such securities previously issued and outstanding, exceeds in the whole the amount of its capital stock at the time actually paid in ;" and such bonds, coupon notes or other evidences of indebtedness not being "issued according to law," within the meaning of R. L., c. 113, § 26, cl. 3, h, are not legal investments for savings banks in this Commonwealth.
You request my opinion as to whether the issue of New To the Bank
^ 1/ X- Commissioner.
ork, New Haven & Hartford Railroad Company 6 per cent. October 12 ibenture bonds is a legal investment for Massachusetts^savings inks. R. L., c. 113, § 26, relating to savings banks, provides: —
Deposits and the income derived therefrom shall be invested only as Uows: —
Third, . . .
h. In the bonds and notes of the New York, New Haven and Hartford ailroad Company issued according to law, notwithstanding the e.xistence 1 the twenty-first day of March in the year eighteen hundred and ninety- X of a mortgage indebtedness not then matured upon the whole or a part
the road of said company.
This provision was first enacted in St. 1896, c. 178. I am ot aware that it has ever been passed upon by our Supreme "ourt or by the Attorney-General.
184 OPINIONS OF THE ATTORNEY-GENERAL.
Section 65 of part II. of chapter 463 of the Acts of 1906, wliich provides for the determination by the Board of Railroad Commissioners of the reasonable necessity of any proposed issue of railroad stock, bonds or notes payable at periods of more than twelve months from date, contains also a provision that: —
The provisions of this section shall not require the approval of the board of railroad commissioners to the issue of capital stock or bonds, or of coupon notes or other evidences of indebtedness as aforesaid, author- ized by law of this commonwealth, the proceeds of which are to be expended in another state or countiy, or wliich are to pay for borrowed money expended in another state or country.
Section 66 provides that : —
A railroad corporation, unless expressly authorized by its charter or by special law, shall not issue bonds, coupon notes or other evidences of indebtedness payable at periods of more than twelve months after the date thereof to an amount which, including the amount of all such securi- ties previously issued and outstanding, exceeds in the whole the amount of its capital stock at the time actually paid in; but this limitation shall not apply to the issue of bonds for the purpose of paying and refunding at maturitj^ bonds lawfully issued prior to the second day of June in the year eighteen hundred and ninety-seven; nor shall it apply to such of the bonds issued or to be issued under a mortgage as are deposited to retire at or before maturity bonds or other evidences of indebtedness previously issued and outstanding at the date of such mortgage, and as do not exceed the par value of the funded or other debt so to be retired; and such corporation shall not issue the securities specified in this section unless authorized by a vote of its stockholders at a meeting called for the purpose.
The fact that the excepting clause of section 65 is omitted from section 66 seems to indicate that the latter section was in- tended to apply to the issue of all evidences of indebtedness, payable at periods of more than twelve months, of railroads chartered by this Commonwealth, irrespective of the purposes for which the money raised by such issue is to be expended, whether in another State or country or in this Commonwealth. Section 66 provides that the amount, including the amount of all such securities previously issued and outstanding, with cer-
DANA MALONE, ATTORNEY-GENERAL. 185
;ain exceptions, shall not exceed in the whole the amount of a •ailroad's capital stock at the time actually paid in. From a nemorandum furnished me of the capital stock issued and out- standing of the New York, New Haven & Hartford Railroad IJompany, the amount of bonds, coupon notes or other evi- lences of indebtedness payable at periods of more than twelve nonths after the date thereof, issued prior to the issuance of the ) per cent, debenture bonds about which you inquire, appears 0 be largely in excess of the capital stock actually paid in. It nay be that some of these bonds come within the exceptions nentioned in section 66, but, unless this is so, the issue would lot be duly authorized in this Commonwealth under the provi- ions of St. 1906, c. 463, part H., § 66, above quoted, as it rould be in excess of the capital stock paid in. Consequently, he bonds so issued would not be legal investments for savings )anks, because they would not be "issued according to law," vithin the meaning of R. L., c. 113, § 26, cl. 3, h.
In my opinion, it makes no difference for what purpose the )roceeds of such issue are to be used, whether within or without he Commonwealth. See Attorney-General v. Neiv York, Neiv '{men & Hartford Railroad Co., 198 Mass. 413.
Having received no information as to the amount of bonds ailing within these exceptions in the case of the New York, New laven & Hartford Railroad Company, I make no final decision dth respect to the debentures under discussion, but merely idvise you as to the principles of law to be applied in determin- ng the cases presented to you after the facts have been fully .scertained.
My attention has been called to chapter 590 of the Acts of 908, relative to savings banks, and chapter 620 of the Acts •f 1908, relative to railroad securities. Neither of these statutes lowever, affects the present question, the latter because it did lot take effect until June 12, 1908, which was subsequent to the late of the issue of the debenture bonds under discussion, and he former because it provides (as does the section of the Re- 'ised Laws above quoted) that railroad securities, to be valid nvestments, must be bonds or notes issued "in accordance with
180 OPINIONS OF THE ATTORNEY-GENERAL.
the laws of this Commonwealth." See St. 1908, c. 590, part V.,
§ G8, cl. 3, a.
As a general principle, I would say that bonds, coupon notes or other evidences of indebtedness payable at periods of more than twelve months after their date, issued in excess of the capital stock of a railroad corporation, would not be issued in accordance with the laws of this Commonwealth, and conse- quently would not be legal investments for savings banks in Massachusetts, whether the proceeds of such issue are to be used within or without the Commonwealth. See Common- icealth V. Smith et als., 10 Allen, 448.
Master in Chancery — Removal from County — Vacancy — Appointment — Governor.
It is the duty of the Governor, under the provisions of R. L., c. 165, § 52, to appoint masters in chancery as vacancies occur, "so that the number thereof in the several counties shall be eleven in Suffolk, nine in Essex, seven in Middlesex, seven in Worcester and not more than five in any other county;" and where a master in chancery appointed for the county of Middlesex removes there- from with the intention of permanently residing elsewhere, a vacancy is created in the list of such officers for such county, which the Governor is authorized to fill by appointment.
t
Governor. Through the executive secretary you, inquire whether or not
October 19. a master in chancery appointed under the provisions of R. L., c. 165, § 52, for the county of Middlesex, and who thereafter removes from Middlesex County to Suffolk County, by such removal vacates the office held by him, so that the appointment by the Governor of an additional master in chancery to be cred- ited to Middlesex County would be warranted. R. L., c. 165, § 52, is as follows: —
The governor, with the advice and consent of the council, shall, as vacancies occur, appoint masters in chancery so that the number thereof in the several counties shall be eleven in Suffolk, nine in Essex, seven in Middlesex, seven in Worcester and not more than five in any other county. They shall be sworn, and shall hold their offices for a term of five years, unless sooner removed h\ the governor and council.
DANA MALONE, ATTORNEY-GENERAL. 187
By St. 1904, c. 348, the number of masters in chancery for Middlesex County was increased to eleven.
The obvious purpose of the statute above quoted was to pre- serve in the several counties named therein the designated num- ber of masters in chancery, who should there perform the duties imposed upon them by statute, in order that the convenience of residents of such counties might be properly served, and that opportunity might be given to gain access to a master in chan- cery whenever necessity might arise.
I am therefore of opinion that where a master in chancery appointed for Middlesex County removes therefrom and resides elsewhere, a vacancy is created in the list of masters in chancery for such county, and that the Governor is authorized to appoint a master in chancery to fill such vacancy. My opinion is not affected by the provisions of St. 1906, c. 187, which has con- ferred upon masters in chancery jurisdiction to act throughout the Commonwealth, and has provided that their commissions should be "issued for the Commonwealth," for the reason that the requirement of residents of the several counties as masters in chancery therein is equally strong, whether or not the juris- diction of such officers extends throughout the Commonwealth.
Corporation — Foreign Corporation — Usual Place of Business within the Commonwealth.
A foreign corporation engaged in the business of operating mines beyond the limits of the Commonwealth, which maintains an office within the Commonwealth as a place for meetings of its board of directors, has a usual place of business therein, within the meaning of St. 1903, c. 437, § 58, and must comply with the requirements of sections 58-60 of such chapter.
You ask my opinion on the question as to whether the Bing- To the Com-
, "" . , ^ missioner of
ham Metal Mmmg Company, a corporation organized under Corporationa. the laws of the State of Maine, is doing business within this October^26. Commonwealth so as to be subject to chapter 437 of the Acts of 1903, by reason of the following facts: —
1. It is a foreign corporation, operating mines in the State of Utah, where all of its mining business is transacted.
KS8 OPINIONS OF THE ATTORNEY-GENERAL.
2. It has rented an office in Boston, and owns office furniture therein.
3. The purpose of the Boston office is simply to have a place for meetings of its board of directors.
4. It also has an account with a Boston bank.
You ask: "Upon this statement of facts, is it my duty to require the Bingham Metal Mining Company to file the usual papers under sections 58-60 of chapter 437 aforesaid?"
The question is a close one, but I am inclined to the opinion that the corporation has such a usual place of business. The original statute imposing a tax on mining companies incorpo- rated elsewhere and doing business outside the Commonwealth applied to a corporation "having an office or place of business within the Commonwealth for the direction of its affairs or transfer of shares." St. 1865, c. 283, § 8. Such corporations were required to semiannually make returns to the Tax Com- missioner, and to pay to the Treasurer of the Commonwealth a tax of one-twentieth of one per cent, upon the par value of the capital stock. This provision appears in Pub. Sts., c. 13, § 43. By St. 1882, c. 106, a foreign corporation engaged in mining, " which shall for any period exceeding ten days establish, set up, have or keep principal or branch, subscription, treasury or trans- fer office or agency within this Commonwealth," was required to file a certificate setting forth the name of the corporation, etc., and to pay a tax. In R. L., c. 14, § 51, it was provided that a foreign corporation engaged outside the Commonwealth in min- ing, and having "a usual place of business in this common- wealth," should make a semiannual return to the Tax Commis- sioner, and pay a tax.
The history of the statute seems to indicate that the corpora- tions which were originally included in St. 1865, c. 283, § 8, were intended to be included within R. L., c. 14, § 51; that is, that the phrase "usual place of business" used in the Revised Laws is broad enough to include corporations which had within this Commonwealth offices used solely for directors' meetings or transfer offices. There is certainly no indication of any intent to change the law.
DANA MALONE, ATTORNEY-GENERAL. 189
The business corporation act, St. 1903, c. 437 (§ 95), ex- pressly repeals R. L., c. 14, § 51. The provisions of this act, however, so far as they are the same as those of statutes existing at the time of its passage, are to be construed as a continuation of those statutes. The words "usual place of business" occur in section 58 of the later act, and are to be construed as- they were to be construed under the earlier act. If, therefore, the Bing- ham Metal Mining Company w^as within the provisions of R. L. c. 14, § 51, it is also, in the absence of anything to indicate a contrary intention, within the provisions of St. 1903, c. 437, §§58-60.
I think, therefore, that it is your duty to require the Bingham Metal Mining Company to file the usual papers under sections 58-60 of chapter 437 aforesaid.
Fisheries and Game — Pursuit of Wild Fowl — Launch or
Power Boat.
The shooting of wild fowl from a launch or power boat, which has been used to reach a place frequented by such wild fowl, and is there anchored, constitutes a violation of the provisions of R. L., c. 92, § 11, as amended by St. 1906, c. 241, which forbids the pursuit of wild fowl "with or by aid of a boat pro- pelled by steam or naphtha, or of a boat or vessel propelled by any mechan- ical means other than sails, oars or paddles."
In a letter of recent date your Board requests my opinion ^^^j^^ as to whether it would be a violation of R. L., c. 92, § 11, as onFiTher'^r" amended by St. 1906, c. 241, "if a resident of Gloucester ^^ loos"''
November 12.
should go out on Gloucester Bay in a steam launch, anchor it, set decoys, shoot out of the boat, and get the dead birds by means of a row boat."
So far as material, the statute above cited provides that "whoever . , . pursues any wild fowl with or by the aid of a boat propelled by steam or naphtha, or of a boat or vessel pro- pelled by any mechanical means other than sails, oars or pad- dles, . . . shall be punished by a fine of not exceeding twenty dollars for each offence."
In my opinion, the act described would constitute a violation of this provision.
ion OPINIONS OF THE ATTORNEY-GENERAL.
The obvious intent of the statute is that the hunter shall not be able to get a greater advantage over the game which he is pursuing than he is able to obtain without the aid of a power boat or similar mechanical means.
In the case stated, the pursuit of the birds was begun when the hunter started from home; and, although the hunter has brought his power boat to a stop before shooting, and perhaps has completed the pursuit of the game by row boat, he has, nevertheless, pursued the birds with or by the aid of the power boat, and is therefore within the prohibitions of the statute.
Civil Service — Exemption — Heads of Principal Depart- ments OF a City — City Bookkeeper.
The office of city bookkeeper, established by the charter of the city of North Adams (St. 1895, c. 148), does not constitute the incumbent the head of any principal department in the governmental organization of such city, and, in the absence of other grounds for exemption, is within the operation of civil service rule VII., class 4, which includes "bookkeepers and persons doing similar work in the service of the Commonwealth and of any city thereof."
cfvii'service ^^^ inquire whether the office of city bookkeeper, established dommbsion. by the city charter of the city of North Adams (St. 1895, c. 148, Docemb_er4. | 34)^ ^^^^^ ^j^j^j^ ^.^jj ^^^^j^^ ^^^^ yjj^ ^j^^^ 4, — " book- keepers and persons doing similar work' in the service of the Commonwealth and of any city thereof." You cite, as appli- cable to the office of bookkeeper, the following provisions, to be found in the city charter of North Adams, viz.: —
Section 34. There shall be the following administrative officers, who shall be appointed by the mayor and who shall perform the duties by law^ and hereinafter prescribed for them, respectively, and such further duties not inconsistent with the nature of their respective offices as the city council may prescribe. . . . VIII. A city bookkeeper, who shall also be clerk of the board of public w^orks. and shall keep the accounts of all the departments as herein otherwise provided. . . .
Section 43. All city officers not hereinbefore mentioned shall perform such duties as are or may be from time to time prescribed by law, and such other duties, not inconsistent herewith or with general laws, as the council may from time to time prescribe.
DANA MALONE, ATTORNEY-GENERAL. 191
Section 44. The administrative officers and boards above-named in his title, and all administrative officers and boards hereafter established y the city council and not coming within the department of anj'' officer r board so above-named, shall have the power, except as herein otherwise ■rovided, to appoint or employ and to remove or discharge, all officers, lerks and employees in their respective departments. Such appointments hall not be for any specified term but shall hold good until removal or ischarge. . . .
A city bookkeeper is obviously within the scope of the civil ervice law and rules, unless he is exempted by section 9 of hapter 19 of the Revised Laws, which provides as follows: —
Judicial officers and officers elected bj^ the people or by a city council, ir whose appointment is subject to confirmation by the executive council ir city council of any city, officers elected by either branch of the general curt and the appointees of such officers, heads of principal departments )f the commonwealth or of a city, the employees of the treasurer and eceiver-general, of the board of commissioners of savings banks, and of .he treasurer and collector of taxes of any city, two employees of the nty clerk of anj'- city, teachers of the public schools, the secretaries and •onfidential stenographers of the governor, or of the mayor of any city, 3olice and fire commissioners and chief marshals, or chiefs of police and ire departments, shall not be affected as to their selection or appointment )y any rules made as aforesaid; but, with the above exception, such •ules shall apply to members of police and fire departments.
Although it is not specifically so stated, I assume that the city bookkeeper is not an officer whose appointment is subject to con- firmation by the city council of North Adams, and that if ex- empted at all it is because he comes within the provisions exempting the heads of principal departments of a city. A de- partment is defined to be "a distinct part of a governmental organization; a branch of government." Thus, in the Consti- tution of Massachusetts, article 30 of the Bill of Rights, the word "department" is applied to the legislative, judicial and executive powers. A principal department of a city is one of the several divisions of governmental organization into which the government of a city readily separates itself. Broadly speaking, those departments would be the executive, as repre- sented by the mayor; the legislative, as represented by the city
192 OPINIONS OF THE ATTORNEY-GENERAL.
council; and the administrative, as represented by administra- tive officers appointed by the mayor or elected by the city council. Undoubtedly, however, the statute had particularly in view certain principal and easily recognized divisions in the administrative department of a city; such as, for instance, the division relating to public works, the division including the care and maintenance of the poor, and certain other distinct fields for administrative activity. See Attorney-General v. Trehy, 178 Mass. 186.
Upon this definition it is obvious that the office of city book- keeper, as established by the charter of the city of North Adams does not constitute the incumbent the head of any principal department of the governmental organization of the city, and, in the absence of other grounds for exemption, such officer would be subject to the civil service law and rules.
Inspection of Buildings — Sanitation and Ventilation — Inspection Department of District Police.
Under the provisions of St. 1907, c. 537, § 5, and St. 1908, c. 369, the inspection department of the Massachusetts District Police has no jurisdiction over matters of sanitation or ventilation in buildings subject to inspection, other than to order changes in construction for ventilating or sanitary purposes, when the necessity therefor is reported to such department by the State Board of Health. /
Chief of the ^- ^^^"^ letter of November 6 you require my opinion upon
dXc'i'poUcc. t^^t^ question whether or not, under the existing laws, the in- Decembcrii. spcctors of factoHes and public buildings in the inspection department of the District Police are authorized or required to take any independent and initial action with respect to the inspection of ventilation and sanitary appHances in public buildings.
Under the provisions of Pt. L., c. 104, § 41, and c. 106, §§ 41-45, inclusive, all jurisdiction with respect to matters of sanitation and ventilation in public buildings was vested in the factory inspectors of the District Police. This authority was, however, specifically repealed by St. 1907, c. 537, § 5, which is as follows : —
DANA MALONE, ATTORNEY-GENERAL. 193
The state inspectors of health shall, under the direction of the state
)ard of health and in place of the inspection department of the district
)lice, enforce the provisions of section forty-one of chapter one hundred
id four of the Revised Laws so far as said section provides that factories
all be well ventilated and kept clean, sections forty-one, forty-four
d forty-seven to sixty-one, inclusive, of chapter one hundred and six
the Revised Laws, chapter three hundred and twenty-two of the acts
the year nineteen hundred and two, chapter four hundred and seventy-
e of the acts of the year nineteen hundred and three, chapter two
ndred and thirty-eight of the acts of the year nineteen hundred and
e, and chapter two hundred and fifty of the acts of the year nineteen
ndred and six; and the powers and duties heretofore conferred and im-
sed upon the members of said inspection department of the district
lice by section eight of chapter one hundred and eight of the Revised
ws in respect to the foregoing sections and acts, and in respect to all
:s in amendment thereof or in addition thereto, and in respect to any
ler laws, are hereby conferred and imposed upon said state inspectors
health or such other officers as the state board of health may from
1 16 to time appoint : provided, however, that neither said board of health
I r any inspector thereof shaU have authority to require structural
i erations to be made in buildings, but shall report the necessity therefor
■ the inspection department of the district police. Wherever in said
] )visions of law the words "inspector" or "inspectors" of factories and
Wic buildings, "inspection department of the district police," "in-
i ictor" or "inspectors" of the district police, "district pofice," "factory
i pector" or "inspectors," and "member" or "members" of the district
] ice occur, they shall be taken to mean state inspector or inspectors
( health. Wherever the words "chief of the district police" occur, they
i ill be taken to mean the state board of health.
While this section is inartificial and in some respects obscure i to construction, it is not necessary for the purposes of this i [uiry to go beyond the express repeal of the sections of chap- t s 104 and 106 of the Revised Laws, above quoted. Upon the aproval of this act, the duties and powers theretofore vested in t ' members of the inspection department of the District Police ■V re transferred to and imposed upon the State inspectors of 1 dth, or such other officers as the State Board of Health might a )oint.
St. 1907, c. 537, was in effect amended by St. 1908, c. 389, e.itled "An Act to define the powers and duties of the in-
194 OPINIONS OF THE ATTORNEY-GENERAL.
specters of factories and public buildings," Such inspectors were given the power to enter any building, structure or enclo- sure, for the purpose of examining the methods of prevention of fire, means of exits and means of protection against accidents; and they were further authorized to make investigations as to the employment of children, young persons and women, "except concerning health and the influence of occupation upon health." They may also enter any public building and public or private institution or schoolhouse, church, theatre, or other place of public resort, and make such investigations and order such structural or other changes as may be necessary in connection with the construction, occupation and heating appliances and conditions, but they are expresslj^ forbidden to order changes for ventilating or sanitary purposes. The section then proceeds: "provided, however, that they may order structural changes for any purpose whenever the necessity therefor has been reported in accordance with the provisions of section five of chapter five hundred and thirty-seven of the acts of the year nineteen hun- dred and seven." The provision of St. 1907, c. 537, § 5, re- ferred to, relates to notice from the State Board of Health, and has already been quoted.
It results, from this proviso, that, while the inspectors of fac- tories have no powers to investigate, inspect or upon their own initiative order changes in methods of ventilation in buildings 1 subject to their jurisdiction, it becomes their duty, upon report of the State Board of Health, to order such changes as may be deemed proper in the premises.
From a consideration of the statutes above referred to, it clearly follows that the only connection with matters pertaining to sanitation or ventilation which the inspection department of the Massachusetts District PoHce still retain is the single duty to order structural changes in buildings for ventilating and san- itary purposes when the necessity therefor is reported to the inspection department of the District Police bv the State Board of Health.
DANA MALONE, ATTORNEY-GENERAL. 195
Corporation — Purpose of Organization — Buying and SELLING Real Estate.
The Commissioner of Corporations has no authority to approve the incorporation of certain persons for the purchase of waste, undeveloped or partially devel- oped lands with a view to their development and sale, such purpose being forbidden by St. 1903, e. 437, § 7, as amended by St. 1906. c. 286, § 1, that "three or more persons may associate themselves . . . with the intention of forming a corporation under the general laws for any lawful purpose . . . except to buy and sell real estate."
In a letter of Jan. 21, 1909, you have requested my opinion Tothe IS to whether or not you have authority to approve the incor- of Corpora-
Doration of certain persons for purposes as follows : —
To buy and make waste, undeveloped and partially developed land nto useful property; to survey and divide the same into building lots md roads, to build factories thereon and sell, or develop a manufacturing jusiness in the same, or improve it in any other way; to accept pay herefor in stocks, or mortgages. To sell houselots for cash, or on land ;ontracts, or bonds. To establish parks and pleasure grounds on the iame, and to make, vend, buy and sell any and all kings of manufactured irticles and to do any and all other things necessary or convenient to ;arry out the general purposes specified, so far as the same shall not ;onflict with the laws of the Commonwealth.
The provision of the statute upon the subject is clear and iefinite. St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, provides as follows : —
Three or more persons may associate themselves by a written agree- nent of association with the intention of forming a corporation under ■he general laws for any lawful purpose which is not excluded by the )rovision of section one except to buy and sell real estate.
Among the purposes of the proposed corporation is the pur- )ose to buy and sell real estate, which is obviously not a pur- )ose for which incorporation is permitted by the statute.
In my opinion, therefore, you are quite correct in your ruling 0 the effect that you had no authority to approve of the incor- Doration proposed for the purposes described.
tions.
1909 January 21.
19G
OPINIONS OF THE ATTORNEY-GENEKAL.
To the State Board of Health.
1909 January 22.
Boards of Health — Causes of Sickness — Contagious Diseases — Right to enter Schools — Inspectors of Health.
A local board of health may, under its general authority conferred by R. L., c. 75, if in fact a contagious disease as a cause of sickness is found in a school, or if such board has reasonable and proper grounds for believing that a contagious disease may be found therein, enter such school and make all necessary examinations in the premises, and, if pupils suffering from contagious diseases dangerous to the public health are found, may remove such pupils to a hospital or quarantine station, but, in the absence of any reasonable grounds for believing that contagious disease existed in a school, such board or its agents would have no authority to enter therein for the purpose of making an exami- nation of the physical condition of the pupils in attendance.
State inspectors of health, acting under their general powers as defined in St. 1907, c. 537, § 3, providing that such inspectors "shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district," would not be authorized to enter a school or hospital for the purpose of making a physical examination of in- di^^dual pupils or patients.
You require my opinion upon the question "whether a local board of health, or its agents, acting under its general powers in investigating causes of sickness within its town and removing or preventing the same, has authority to enter public schools for the purpose of detecting causes of sickness, and, in case of discovery of infection in a pupil, to exclude such pupil from the school, and to make such further quarantine regulations as it may in case of disease in a house for' the protection of the public."
I assume that your inquiry is directed to the exercise by local boards of health of the general powers conferred upon such boards, with respect to causes of sickness, by R. L., c. 75, § 65, which is as follows : —
The board of health shall examine into all nuisances, sources of filth and causes of sicloiess within its town, or on board of vessels within the harbor of such town, which may in its opinion be injurious to the pubhc health, shall destroy, remove or prevent the same as the case may require and shall make regulations for the public health and safety relative thereto and relative to articles which are capable of containing or convey- ing infection or contagion or of creating sickness which are brought into or conveyed from its town, or into or from any vessel. Whoever violates any such regulation shall forfeit not more than one hundred dollars.
DANA MALONE, ATTORNEY-GENERAL. 197
and that your inquiry is further limited to the authority of a local board of health, where contagious diseases have been found actually to exist, to enter a school and discover whether or not such disease is actually present among the pupils attending such school. If it be further assumed that entries into such school for purposes involving an examination of the physical condition of the scholars therein are based upon reasonable grounds for believing that cases of sickness, which are in fact and effect causes of sickness, exist in such school, I am of opinion that local boards of health have the necessary power in the premises. Where sources of sickness actually exist, the powers of local boards of health are broad and comprehensive. See Belmont v. New England Brick Co., 190 Mass. 442; Stone v. Heath, 179 Mass. 385. And such powers are not weakened where the causes of sickness are cases of contagious disease so numerous as to form an epidemic. See Oliver v. Gale, 182 Mass. 39, 40. Chapter 75 of the Revised Laws itself contains provisions for dealing with diseases dangerous to the public health, and gives to a local board of health the power to remove or to quarantine a person suffering from a disease of that character. See sec- tions 42, 43, 44 and 45.
It follows, therefore, that if in fact contagious disease as a cause of sickness is found in a school, or if a local board of health has reasonable and proper grounds for believing that such contagious disease may be found therein, such board has authority to enter such school and to make all necessary exam- inations in the premises, and if pupils suffering from conta- gious diseases dangerous to the public health are found therein, to remove them to a hospital or quarantine station, in accordance with the provisions of section 42 above referred to. Upon the other hand, however, I am of opinion that a local board of health has no greater powers with respect to investigating generally the state of health of the pupils in a school than such board would have with respect to any other individual; and that, in the absence of any reasonable ground to believe that contagious disease as a cause of sickness exists in any school, such board of health, or its agents, would have no authority to
19S OPINIONS OF THE ATTORNEY-GENERAL.
enter upon the premises for the purpose of making an examina- tion of the physical condition of the pupils in attendance at such school.
Your communication further inquires whether State inspec- tors of health, acting under their general powers as defined in St. 1907, c. 537, § 3, which provides that each State inspector of health "shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district," have authority to enter school- houses and hospitals for the purpose of obtaining such informa- tion. The State inspectors of health are appointed under the provisions of St. 1907, c. 537, which provides in section 3 that: —
Every state inspector of health shall inform himseK respecting the sanitary condition of his district and concerning all influences dangerous to the public health or threatening to affect the same ; he shall gather aU information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district, shall disseminate knowledge as to the best methods of preventing the spread of such dis- eases, and shall take such steps as, after consultation with the state board of health and the local state authorities, shall be deemed advisable for their eradication; he shall inform himself concerning the health of all minors emploj^cd in factories within his district, and, whenever he may deem it advisable or necessary, he shall call the ill health or physical unfitness of any minor to the attention of his oi' her parents or employers and of the state board of health.
You do not, in this question, state the character of the in- formation of which the health inspector is assumed to be in search. If such inspector desires to enter ^ school or hospital for the purpose of making a physical examination of individual pupils or patients, I am of opinion that the statute above quoted would not authorize him so to do. He has, how-ever, the same right to enter a hospital or school that is possessed by any other individual in search of information, independent of statute. If the statute above quoted confers upon such inspec- tor any right of entry into hospitals or schools, such right or authority must be found in the first clause of section 3, and
DANA MALONE, ATTORNEY-GENERAL. 199
nust be for the purpose of enabling the inspector to inform limself concerning the sanitary conditions of his district, which jonceivably might include the sanitary condition or method of construction of either a hospital or a school, and such other nformation of like nature as might be deemed necessary or mportant. Upon the other hand, if the information which he .eeks is to be gained by an examination of persons or of records )f case in the custody of a hospital or school, or other similar nformation, I am of opinion that the statute does not contem- )late the acquisition thereof as a matter of right, and does not ;onfer authorit}^ upon the inspector to enter either a hospital )r a school for any such purpose.
Boston & Maine Railroad — Extension of Line — Con- solidation WITH OTHER CORPORATIONS — LIABILITY TO
Forfeiture of Charter.
The ownership and control of the Portsmouth Street Railway and the purchase of the Eastern Railroad Company, both corporations of the State of New Hampshire, by the Boston & Maine Railroad, were duly authorized by the Legislature of this Commonwealth, and such acquisition and control do not render the charter of the Boston & Maine Railroad liable to forfeiture under the provision of St. 1906, c. 463, part II., § 47, that "if a railroad corporation owning a railroad in this commonwealth and consolidated with a corporation owning a railroad in another state . . . without authority of the general court, . . . extends its line of railroad, or consolidates with any other corpora- tion, . . . the charter and franchise of such corporation shall be subject to forfeiture."
The acquisition and control of the Concord Street Railway and the extension of its line from Concord to Manchester, by the Concord & Montreal Railroad Company, was an acquisition and extension of a New Hampshire corporation of its own line, under proper authority from the State of New Hampshire, and such acquisition and extension do not render liable to forfeiture under the provision of law above cited the charter of the Boston & Maine Railroad, which operates the Concord & Montreal Railroad under a lease authorized by the Legislature of this Commonwealth.
On January 26 an order of the tenor following was adopted '^^^^^l 3y the Honorable Senate: — February le.
Ordered, That the Attorney-General be requested to inform the Senate ■vhether in his opinion the Boston & Maine Railroad Company, or any )ther raihoad corporation owning a railroad in the Commonwealth and -onsolidated with a railroad in another State, has subjected itself to the
200 OPINIONS OF THE ATTORNEY-GENERAL.
forfeiture of its charter and franchise by reason of the provision of the general raihoad and railway law contained in chapter four hundred and ninety-tliree of the statutes of nineteen hundred and six which forbids such a corporation to extend its line of raikoad without the authority of the General Court, or by reason of any other provision of section forty- seven of part two of said chapter.
I have the honor to acknowledge the receipt of the foregoing order, and to reply thereto as follows: —
I assume that the Honorable Senate, by reference to " chapter four hundred and ninety-three of the statutes of nineteen hun- dred and six," intended to designate chapter 463 of the Acts of said year, which is entitled "An Act relative to railroad cor- porations and street railway companies," and to require my opinion upon the effect of section 47 of part II. of said chapter with reference to the present status of the Boston & jNIaine Railroad and of any other railroad corporation owning a rail- road within the Commonwealth and consolidated with a rail- road in another State.
The section referred to, St. 1906, c. 463, part II., § 47, pro- vides that : —
If a railroad corporation owning a raihoad in this commonwealth and consolidated with a corporation owning a railroad in another state increases its capital stock, or the capital stock of such consolidated corporation, except as authorized by tliis act, without authority of the general court, or without such authority extends its line of railroad, or consolidates with any other corporation, or makes a stock dividend, the charter and fran- cliise of such corporation shall be subject to forfeiture.
No evidence was transmitted to me by the Honorable Senate, or is officially before me, with respect to any specific act or acts of the Boston & Maine Railroad, or of any other consolidated corporation operating a railroad within the Commonwealth, ex- cept the New York, New Haven & Hartford Railroad Company, upon the legal status of which, with respect to certain provi- sions of the section above quoted, I have already expressed an opinion, which is before the Honorable Senate in my annual report; and I am awnre of no provision of law which would
DANA MALONE, ATTOKNEY-GENERAL. 201
equire or even authorize the Attorney-General officially to sccrtain or determine the facts material and necessary to a oiisideration of the present inquiry, in order to perform intelli- ently the duty imposed upon him by the provisions of R. L., . 7, § 7, to "give his opinion upon questions of law submitted 3 him by the governor and council or by either branch of the eneral court."
I am informed, however, that, although the question in the 3rm submitted involves an investigation of fact with respect to he history of the several consolidated railroad corporations /hich operate railroads within the Commonwealth, which it is eyond the power of the Attorney-General to make, the Honor- ble Senate had particularly in view certain definite and specific cts of the Boston & Maine Railroad, upon the legality of .'hich, with respect to the provisions of the statute above uoted, my opinion is desired, viz., the acquisition or control of he Concord Street Railway and the extension of its road to lanchester, the ownership and control of the Portsmouth treet Railway and the purchase of the Eastern Railroad Com- any.
With respect to these transactions the material facts are mat- ers of record, and are before me. The Concord Street Railway i directly owned and operated by the Concord & Montreal iailroad Company, a corporation of the State of New Hamp- hire, which has extended the line of such street railway to the ity of Manchester. Both the original purchase and the subse- uent extension were effected under and by virtue of the pro- isions of the general laws of the State of New Hampshire, /hich permit a railroad corporation to construct and operate its nes by electricity in or upon the public highways. The sec- ions above referred to are as follows (St. (N. H.) 1895, c. 27, § 22 and 23) : —
Section 22. Every railroad corporation established under the laws f this state, and operating railroads therein with steam for a motive ower, are hereby authorized to operate their railroads, or any part hereof, by electricity; and for the purpose of making the necessary hanges from steam to electricity as motive power, every such raihoad
202 OPINIONS OF THE ATTORNEY-GENERAL.
corporation may, with the consent of the railroad commissioners, and subject to the provisions of sections seventeen and eighteen of this act, issue such an additional amount of capital stock as may be necessary to defray the expenses of making such change in motive power and equipment.
Section 23. If any existing steam railroad shall build extensions, branches, or additions to its hues, to be operated by electricity as the motive power, such steam railroad shall have the same right to build and operate such extensions, branches, and additions in the public high- ways, and be subject to all the duties, Uabilities, and restrictions as to that part of said extensions, branches, and additions operated by elec- tricity in public highways, as by the provisions of this act are conferred and imposed upon street railways in their use of public highways.
See St. (N. H.) 1903, e. 102.
The connection of the Boston & Maine Railroad with these transactions arises from the fact that it operates the Concord & Montreal Railroad Company under a lease dated June 29, 1895, and duly authorized by the Legislatures of Massachusetts and of New Hampshire, in New Hampshire by chapter 5 of the Acts of the year 1889, and in Massachusetts by St. 1893, c. 263. See St. (N. H.) 1893, c. 100; St. (N. H.) 1889, c. 146.
It appears, therefore, that the acquisition of a street railway line in Concord and the extension of such line from Concord to Manchester by the Concord & Montreal Railroad Company was an acquisition and extension by a New Hampshire corporation of its own line, duly authorized thereto by the laws of that State.
The Portsmouth Street Railway Company was constructed and is operated as a part of the Dover & Portsmouth Railroad Company, under authority of chapter 27 of the Acts of the year 1895, of New Hampshire, the general law of the State of New Hampshire, which, as before stated, permits the operation by steam roads of extensions, branches or additions to its lines operated by electricity in the public highways (see sections 22 and 23 of chapter 102 of the statutes of New Hampshire for the . year 1903); and such street railway formed a part of the line of
the Dover & Portsmouth Railroad Company on Jan. 1, 1900, when such company was acquired by purchase by the Boston &
j DANA MALONE, ATTORNEY-GENERAL. 203
ilaine Railroad. This acquisition was effected under the ex- ress authority of the State of New Hampshire, given in St. 889, c. 5, § 10, which authorized the purchase of the road, 'anchises and property of the Eastern Railroad Company, the )astern Railroad in New Hampshire, the Portsmouth, Great alls & Conway Railroad, the Portsmouth & Dover Railroad, nd certain other railroads therein named. The Massachusetts uthority for the purchase of the Portsmouth & Dover Railroad ppears to have been conferred by St. 1891, c. 308, which in action 1 provided that: —
The Boston and Maine Railroad is hereby authorized to acquire by urchase, the road, franchises and property of any railroad corporation 'hose road is now operated by it under lease, contract or through owner- hip of stock, and whether said road belongs to a corporation organized nder the laws of this Commonwealth or organized under the laws of the tate of Maine, the state of New Hampshire, or the state of ^^ermont.
Prior to the passage of this statute the relation of the Boston i Maine Railroad to the Portsmouth & Dover Railroad Com- )any had been that of lessor to lessee. It therefore appears hat the street railway in question forms a part of a railroad ;orporation whose property, rights and franchises are owned by ;he Boston & Maine Railroad; that prior to such ownership iuch extensions as may have been made of the lines of the Portsmouth Street Railway were extensions of the line of the Portsmouth & Dover Railroad Company; and that subsequent :o such ownership there have been, as I am informed, no exten- sions thereof.
The acquisition of the Eastern Railroad Company, as has been stated, was authorized in New Hampshire by St. 1889, c. 5, which in section 10 authorized the Boston & Maine Rail- road to acquire by purchase the road, franchises and property of the Eastern Railroad Company, and thereafter to acquire by purchase the roads, franchises and property of the Eastern Rail- road of New Hampshire, the Portsmouth, Great Falls & Con- way Railroad, and certain other railroads therein specified. In section 12 the Boston & Maine Railroad was further authorized
204 OPINIONS OF THE ATTORNEY-GENERAL.
"to acquire by purchase the road, franchises and property of any railroad corporation incorporated under the laws of either the state of Massachusetts, Vermont or Maine whose road is now leased to or operated by said Boston & Maine Railroad
. .", — a general provision identical with that contained in the • Massachusetts statute of 1891, chapter 308, which has already been quoted. In Massachusetts a like permission was granted to the Boston & Maine Railroad by St. 1888, c. 250, which in section 1 provided for the acquisition of the Eastern Railroad Company, with authority subsequently to acquire by purchase the road, franchises and property of the Eastern Railroad Com- pany of New Hampshire and of the Portsmouth, Great Falls & Conway Railroad (see St. 1890, c. 195). In accordance with the authority conferred by these statutes of Massachusetts and New Hampshire, respectively, the Boston & Maine Railroad acquired by purchase the road, franchises and property of the Eastern Railroad Company on May 9, 1890, the Eastern Railroad in New Hampshire on June 15, 1899, and the Portsmouth, Great Falls & Conway Railroad on May 9, 1890.
From these facts it is clear that the Boston & Maine Railroad has not in the specific instances discussed consolidated with any other railroad within the State of New Hampshire, and has not within that State extended its own line contrary to the prohibi- tion of St. 1906, c. 463, part II., § 47. - It must follow, there- fore, that if by reason of any of these transactions the charter of the Boston & Maine Railroad has become liable to forfeiture under the provision of law already referred to, it has become liable thereto by reason of the extension of the line of the Con- cord & ^Montreal Railroad Compahy, a New Hampshire corpora- tion leased by the Boston & Maine Railroad, from Concord to Manchester in the State of New Hampshire, — an extension which was duly authorized by the laws of New Hampshire. Upon this point I am constrained to say to the Honorable Senate that in my opinion the provisions of section 47 cannot be extended to include, even by implication, an extension of the lines of a New Hampshire corporation so authorized and ef- fected. Even if the extension under consideration were of the
DANA MALONE, ATTORNEY-GENERAL. 205
nes of the Boston & Maine Railroad itself, the scope and
''Urpose of the provision in section 47, with respect to exten-
|ions of the lines of railroads beyond the limits of the Com-
lonwealth, would not be wholly free from doubt. In the
ase of Attorney-General ex rel. v. New York, New Haven &
lartford R.R. Co., 198 Mass. 413, the court, in discussing a
onsolidated corporation similar to the Boston & Maine Rail-
: oad, and the mutual concessions by the several States by
/hich it was created, said (page 422) : —
How far, by reason of the peculiar nature of the corporation, or by Dree of express provisions in the statutes, has Massachusetts given up ts right of control of this corporation, or relieved it of the application I f our general laws, and how far has it retained such control? As creating I , corporation to build and operate a railroad in two different States, and ! >y the language quoted from St. 1844, c. 28, § 2, the Legislature recog- I lized the fact that the corporation might have certain franchises, rights, )0wers, privileges and property granted or acquired under the laws of )nly one of the two States. As to such rights and powers as pertain , )nly to local matters, like the location of the railroad, the possession and nanagement of real estate, the crossing of highways and other railroads, I -he State in which they were to be exercised would have exclusive juris- liction. This fact is enough to show the reason for using the language •eUed on by the defendant. In regard to all such matters, the action )f only one State would be appropriate and sufficient. How far this mplied authority to grant powers and franchises without the co-opera- tion of the sister State should be held to extend, it is unnecessary in this 3ase to decide. Whether it should go so far as to include the acquisition jf other raihoads within the State where the power is granted, or the .ocation and construction of new fines and extensions there, and an increase Df the capital stock for such purposes, is a question upon which it is not Qecessary to express an opinion.
See 1 Op. Atty.-Gen. 118, 137.
It further appears that all issues of stock and bonds of the Boston & Maine Railroad have been made in conformity' to the laws of the Commonwealth, and have been approved by the Board of Railroad Commissioners.
This being so, I have to advise the Honorable Senate that such facts as I now have before me do not disclose any acts of
20G OPINIONS OF THE ATTORNEY-GENERAL.
the Boston & Maine Railroad, or, with the exception herein- before stated, of any other consoHdated corporation which operates a railroad within the Commonwealth, which would render liable to forfeiture the charters of such corporations under the provisions of section 47 of part II. of chapter 463 of the Acts of 1906.
To the
Commissioners on Fisheries and Game.
1909 February 26.
Registration of Hunters — Citizen — Residence on Land
USED exclusively FOR AGRICULTURAL PURPOSES.
Under the provisions of St. 1908, c. 484, § 3, which exempts, from the requirement prescribed by the statute of a certificate of registration, citizens who are bona fide residents on land owned or leased by them, and on which they are actually domiciled, such land being used exclusively for agricultural purposes, a person who is resident in a city or town and not upon a farm, but who is the owner of a wood lot used for growing wood, is not exempt from registration. A farmer, however, who is actually resident upon land used exclusively for agricultural purposes, may hunt without registration in a wood lot which is a part of his farm.
In a letter of present date you have requested my opinion upon the construction to be given to section 3 of chapter 484 of the Acts of 1908, requiring citizens of the United States resident in Massachusetts, who desire to hunt in Massachu- setts, to be registered and to pay a registration fee. The section referred to is as follows : —
Every citizen of the United States who is a bona fide resident of this state shall pay for such certificate a fee of one dollar: provided, however, that this act shall not apply to any such citizen who is a bona fide resident on land owned or leased by him and on which he is actually domiciled, which land is used exclusively for agricultural purposes, and not for club or shooting purposes.
Your inquiries, as I understand them, are: first, whether a person who lives in a city or town and not upon a farm, but is the owner of a wood lot used for growing w^ood, may hunt in that wood lot without registration; and, second, whether a per- son who does live upon a farm and carries on agriculture as a vocation, and is the owner of a wood lot used for growing wood, may hunt in that wood lot without registration.
!
DANA MALONE, ATTORNEY-GENERAL. 207
In my opinion, the first question is to be answered in the legative. The clear intent of the proviso quoted is to exempt he farmer from restrictions upon his freedom to hunt within ;he hmits of his own farm. The resident of a town or city who s not a farmer, but owns a wood lot, is not actually domiciled md resident on land used exclusively for agricultural purposes. He is therefore within neither the intent nor the terms of the statute, and is clearly not exempt from registration.
In reply to the second question, my opinion is that a farmer ivho is actually domiciled and resident upon land used exclu- >ively for agricultural purposes may hunt without registration m a wood lot which is part of his farm. All the land embraced m the farm which he operates as a farm, whether it is tillage, pasture or woodland, is to be considered as land used for agri- cultural purposes. Such w^ood lot, while it need not be actually contiguous to the rest of the farm, must, in my opinion, be so nearly adjacent as to be considered as in fact a part of the farm upon which the farmer lives, and to be so used.
Pauper Law — Insane Person — Removal from the Com- ■ monwealth — settlement.
The provision of R. L., c. 80, § 6, that "a person who is absent from the common- wealth for ten consecutive years shall lose his settlement," is applicable to an insane person who was removed to an asylum in another state and there maintained for more than ten consecutive years.
In a letter of recent date you have requested my opinion To the state upon the question arising upon the following facts: a woman ^"jg?^*^- fifty years of age had an undoubted settlement in Massachu- m^^^. setts, when, in 1896, she was taken to Mount Hope Asylum in Baltimore, Md., where she has remained continuously since that time supported as a private patient. Her relatives now de- sire to have her returned to Massachusetts and committed to an insane hospital of this Commonwealth.
The question upon which you have asked my opinion is, whether the woman's settlement in Massachusetts has been lost under the provision of the last clause of R. L., c. 80, § 6, that —
20S OPINIONS OF THE ATTOKNEY-GENERAL.
A person who is absent from the commonwealth for ten consecutive years shall lose his settlement.
The clause of the statute quoted, which has been held to be prospective in operation, was enacted in 1898, and has, there- fore, been in effect during more than ten years of the patient's absence.
In my opinion, the statute operates upon the settlements of the sane and insane with the same effect, and whether a settle- ment has been lost under its provisions depends not upon the mental condition of the person in question, but solely upon her actual residence during the ten years under consideration.
The patient referred to has, therefore, in my opinion, lost the settlement which she had in Massachusetts in 1896.
To the House of Ucpre- sentativea.
1909 March 25.
Animals — Slaughter or Killing — Healthy Condition — Meat from Carcasses of Cattle infected with Tuber- culosis — Sale.
St. 1908, c. 329, providing in section 1 that "the sale, offer or exposure for sale, or delivery for use as food, of the carcass ... of any animal which has come to its death in any manner or by any means otherwise than by slaughter or killing while in a healthy condition . . . shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than six months," does not permit meat derived from the carcasses of cattle infected to any degree with tuberculosis or any other disease to be sold as food within this Commonwealth.
I have the honor to acknowledge the receipt of an order adopted by the Honorable House of Representatives on March 10, last, requiring the opinion of the Attorney-General "as to whether the laws and statutes of this Commonwealth permit cattle which are infected to any degree with tuberculosis to be killed and sold as food in this Commonwealth."
I am aware of no provision of law which forbids the killing of cattle which are infected with tuberculosis; on the contrary, the killing of cattle so infected is in certain cases expressly re- quired (see R. L., c. 90, §§ 4, 6), and I therefore assume that the Honorable House of Representatives in substance requires my opinion upon the question whether or not the laws of the
DANA MALONE, ATTORNEY-GENERAL. 209
ommonwealth permit the sale of food products in any form erived from the carcasses of cattle which are found to have een to any degree infected with tuberculosis. Upon that ssumption I reply as follows: —
The general supervision and inspection of slaughtered animals lid of all meat and other food products derived therefrom is ested in boards of health of cities and towns. R. L., c. 56,
70, provides in part that: —
Boards of health of cities and towns may inspect the carcasses of all aughtered animals and all meat, fish, vegetables, produce, fruit or revisions of any kind found in their cities or towns, and for such purpose ay enter any building, enclosure or other place in which such carcasses • articles are stored, kept or exposed for sale. If, on such inspection,
is found that such carcasses or articles are tainted, diseased, corrupted, 5cayed, unwholesome or, from any cause, unfit for food, the board of 3alth shall seize the same and cause it or them to be destroyed forthwith ' disposed of otherwise than for food.
See R. L., c. 56, § 73.
By section 99 of chapter 75 of the Revised Laws it is pro- ided that the proprietor of everj^ slaughter house, canning, alting, smoking or rendering establishment, and of every estab- shment used for the manufacture of sausages or chopped meat f any kind, who is engaged in the slaughter of neat cattle, heep or swine, the meat or product of which is to be sold or sed for food, shall be annually licensed by the mayor and Idermen of the city, the selectmen of the town, or, in towns, aving a population of more than five thousand, by the board f health, if there be any.
Section 101 provides that: —
A licensee under the provisions of the preceding section sh?ll not laughter any such animals, or cause them to be slaughtered at such laughter house or establishment, on any days other than those specified 1 the application for such license, except in the presence of a member f the board of health or of an inspector appointed therefor by said board; ut he may at any time change the days for slaughtering such animals, y giving at least seven days' written notice thereof to the board or officer uthorized to issue hcenses, who shall immediately give written notice of uch change to such inspector of such city or town.
210 OPINIONS OF THE ATTORNEY-GENERAL.
Section 102 provides that: —
Such inspector as has been appointed by the board of health shall be present at all licensed slaughter houses or establishments upon the days designated for slaughter by the licensee, as provided in the preceding section, and there carefully examine the carcasses of all animals at the time of slaughter. Such inspection shall be made in such manner and under such rules and regulations as the board of catcle commissioners may determine and direct. If, in the opinion of an inspector, any carcass, or any meat or product thereof is diseased, cormpted, unwholesome or unfit for food, he shall seize it and cause it to be destroyed, as provided in section seventy of chapter fifty-six.
Section 103 provides that in a slaughtering establishment wherein inspection and branding is not carried on under the rules and regulations for the inspection of live stock and other products, established by the United States department of agri- culture, the carcasses of animals slaughtered shall at the time of slaughter, if not condemned, be stamped or branded by the in- spector thereof in like manner as those inspected by the United States Bureau of Animal Industry for interstate trade.
By section 104 a penalty is provided for the sale of un- stamped carcasses, which shall be deemed unfit for food. See St. 1903, c. 220; St. 1908, c. 329.
R. L., c. 90 (originally St. 1894, c. 491), dealt w^ith the con- tagious diseases of domestic animals, arid in general authorized the Board of Cattle Commissioners, established by its provi- sions, from time to time to make orders and regulations relative to the prevention, suppression and extirpation of contagious dis- eases of domestic animals, and relative to the inspection, ex- amination, quarantine, care and treatment or destruction of such animals which are affected with, or have been exposed to, such diseases. Section 7 is as follows: —
The board may make regulations for the inspection of meat, which shall conform to the regulations of the United States bureau of animal industry for the inspection of meat for export and for interstate commerce.
By St. 1902, c. 116, the Board of Cattle Commissioners was abolished, and a Bureau of the State Board of Agriculture, to
DANA MALONE, ATTORNEY-GENERAL. 211
1)6 known as the Cattle Bureau, was created. In section 3 it 7as provided that the Governor should annually appoint a ^hief of the Cattle Bureau, who should have the powers and lerform the duties heretofore imposed and conferred upon the Joard of Cattle Commissioners, with the additional proviso hat no orders or regulations made by him under authority of actions 4 and 7 of chapter 90 of the Revised Laws should ake effect until approved by the Governor and CounciL
R. L., c. 90, § 12, provided for the appointment in cities, ex- ept Boston, and in all towns, of one or more inspectors of ani- nals. By section 13 authority was conferred upon the Cattle Commissioners, whose powers are now vested in the Chief of he Cattle Bureau, to appoint such inspector or inspectors in iny city or town which failed to comply with the provisions of ection 12, above cited. Sections 14 and 15 deal with the luties of such inspectors. Section 16 is as follows: —
An inspector shall comply with and enforce all orders and regulations vhich may be directed to him by the board of cattle commissioners or by my of its members. If he refuses or neglects so to do, he shall be punished )y a fine of not more than five hundred dollars.
The effect of the statutes above cited is to provide that the nspection of slaughter houses, and of the carcasses of cattle slaughtered therein and the products derived therefrom, so far IS such inspection relates to food products, is within the juris- liction of the local boards of health. See R. L., c. 75, §§ 100- 108; c. 56, §§ 70-76. It is also apparent from such statutes ;hat the Cattle Bureau of the State Board of Agriculture is zested with authority to examine and inspect living animals and :he carcasses of animals which may be killed as a result of such nspection, in order to ascertain whether or not such animals ivere affected with any contagious or infectious disease. See R. L., c. 90, §§ 12-34. It is to be observed, however, that the nspection conducted by the Cattle Bureau does not include an investigation of the food products derived from cattle, such in- spection being within the jurisdiction of local boards of health, but is limited to an inspection of living cattle and a post-
212 OPINIONS OF THE ATTORNEY-GENERAL.
mortem examination of cattle which have been killed for the reason that they appeared to be affected with some contagious disease enumerated in R. L., c. 90, § 28.
The inspection of meat within this Commonwealth is guided by certain rules and regulations prepared by the Chief of the Cattle Bureau and submitted for approval to the Governor and Council, under authority of R. L., c. 90, § 7, as amended by St. 1902, c. 116, § 3, which rules and regulations, in accordance with the direction contained in that section, are in conformity with the regulations established by the United States Bureau of Animal Industry for the inspection of meat for export and for interstate commerce. The rules and regulations of the Federal Bureau, promulgated by authority of an act of Congress, ap- proved June 30, 1906 (34 St. 674), provide in section 13, as fol- lows : —
Paragraph 1. The following principles are declared for guidance in passing on carcasses affected with tuberculosis : —
Principle A. — The fundamental thought is that meat should not be used for food if it contains tubercle bacilli, if there is a reasonable possibility that it may contain tubercle bacilli, or if it is impregnated with toxic sub- stances of tuberculosis or associated septic infections.
Principle B. — On the other hand, if the lesions are localized and not numerous, if there is no evidence of distribution of tubercle bacilh through the blood, or by other means, to the muscles or ],o parts that may be eaten with the muscles, and if the animal is well nourished and in good condition, there is no proof, or even reason to suspect, that the flesh is unwhole- some. . . .
Principle D. — By localized tuberculosis is understood tuberculosis limited to a single or several parts or organs of the body without evidence of recent invasion of numerous bacilli into the systemic circulation.
Paragraph 2. The following rules shall govern the disposal of tuber- culosis meat : —
Rule A. — The entire carcass shall be condemned —
(a) When it was observed before the animal was killed that it was suffering with fever.
(h) When there is a tuberculous or other cachexia, as shown by anemia and emaciation.
(c) When the lesions of tuberculosis are generalized, as sliown by their presence not only at the usual seats of primary infection, but also in parts
DANA MALONE, ATTORNEY-GENERAL. 213
I f the carcass or the organs that may be reached by the baciUi of tuber- ulosis only when they are carried in the systemic circulation. Tubercii- )sis lesions in any two of the following-mentioned organs are to be ccepted as evidence of generalization when they occur in addition to )cal tul)erculous lesions in the digestive or respiratory tracts, including he lymphatic glands connected therewith; spleen, kidney, uterus, udder, vary, testicle, adrenal gland, brain, or spinal cord or their membranes. Numerous uniformly distributed tubercles throughout both lungs also fford evidence of generalization.
(d) When the lesions of tuberculosis are found in the muscles or inter- luscular tissue or bones or joints, or in the body lymphatic glands as a ?sult of draining the muscles, bones or joints.
(e) When the lesions are extensive in one or both body cavities.
(/) When the lesions are multiple, acute, and actively progressive. Evidence of active progress consists in signs of acute inflammation about he lesions, or liquefaction necrosis, or the presence of young tubercles.)
Rule B. — An organ or a part of a carcass shall be condemned —
(a) When it contains lesions of tuberculosis.
{b) When the lesion is immediately adjacent to the flesh, as in the case f tuberculosis of the parietal pleura or peritoneum, not only the mem- irane or part affected but also the adjacent thoracic or abdominal wall 3 to be condemned.
(c) When it has been contaminated by tuberculous material, through ontact with the floor, a soiled knife, or otherwise.
(d) All heads showing lesions of tuberculosis shall be condemned.
(e) An organ shall be condemned when the corresponding lymphatic ;land is tuberculous.
Rule C. — The carcass, if the tuberculous lesions are limited to a single ir several parts or organs of the body (except as noted in Rule A), without :\ndence of recent invasion of tubercle bacilh into the systemic circulation, hall be passed after the parts containing the localized lesions are removed md condemned in accordance with Rule B.
Rule D. — Carcasses which reveal lesions more numerous than those lescribed for carcasses to be passed (Rule C), but not so severe as the esions described for carcasses to be condemned (Rule A), may be rendered nto lard or tallow if the distribution of the lesions is such that all parts 'ontaining tuberculous lesions can be removed. Such carcasses shall be cooked by steam at a temperature not lower than 200 degrees Fahrenheit or not less than four hours.
Acting under authority of R. L., c. 90, § 7, the Chief of the ^-/attle Bureau established certain regulations, approved by the
214 OPINIONS OF THE ATTORNEY-GENERAL.
Governor and Council in accordance with the terms of St. 1902, c. 116, § 3, and thereby having the force of law, which are in substantial accord with the rules and regulations of the Federal Bureau of Animal Industry.
It is clear, therefore, that the statutes and the rules and regu- lations of the Cattle Bureau, which conform to the regulations of the United States Bureau of Animal Industry, did permit cattle which were infected only to the extent of showing lesions which were locaHzed and not numerous, where there was no evi- dence of the distribution of tubercle bacilli through the blood, or by other means, to the muscles or to parts that might be eaten with the muscles, to be killed if well nourished and in good con- dition, and the meat derived from the carcasses of such cattle to be sold as food, under proper inspection, within the Com- monwealth, since under such conditions there is no proof, or even reason to suspect, that such meat is unwholesome; but such statutes and regulations did not permit the sale of any meat which was infected with tuberculosis.
Upon April 30, 1908, chapter 329 of the Acts of 1908 became a law. This act provided in section 1 as follows: —
The sale, offer or exposure for sale, or delivery for use as food, of the carcass, or any part or product thereof, of any animal which has come to its death in any manner or by any means otherwise than by slaughter or killing while in a healthy condition, or which at the time of its death is unfit by reason of disease, exhaustion, abuse, neglect or otherwise for use as food, or of any calf weighing less than forty pounds when dressed, with head, feet, hide and entrails removed, is hereby declared to be unlawful and prohibited. Whoever sells or offers or exposes for sale or delivers or causes or authorizes to be sold, offered or exposed for sale or delivered for use as food any such carcass or any part or product thereof, shall be punished l^y fine of not more than two hundred dollars or by imprison- ment for not more than six months.
Section 2 placed upon the State Board of Health and its in- spectors, the State inspectors of health and all boards of health of cities and towns, and their inspectors, officers, agents and as- sistants, the duty of, and conferred upon them the necessary powers for, enforcing this statute.
DANA M ALONE, ATTORNEY-GENERAL. 215
Section 5 placed all slaughter houses under the supervision of ;he State Board of Health, and subject to inspection by the 5tate inspectors of health.
Section 7 provided that "nothing in this act shall afifect or rapair the rights, powers or authority of any board or officer lot herein mentioned." This section obviously refers to the en- "orcement of the earlier provisions of the act, and does not ifFect or limit the application of such provisions.
Section 1 of chapter 329 of the Acts of 1908 appears in a draft of legislation accompanying a petition by the Massachu- setts Society for the Prevention of Cruelty to Animals, which sets forth that such society represents "that there is need of further legislation for the prevention of cruelty to animals, espe- cially to protect them against cruelty in transportation, and to protect the public against the sale or use for food, or other im- proper use, of the carcasses of animals which have died in con- sequence of cruelty, maltreatment or neglect or otherwise than by regular slaughter; and to provide further means and agencies for enforcing the laws in relation thereto by extending the pow- ers of the State Board of Health or its officers or agents or of local health officers or otherwise." The act itself, however, is much broader and more drastic than the petition, and, by pro- viding that the sale, offer or exposure for sale or delivery for use as food of the carcasses, or of any part or product thereof, of any animal which has come to its death in any manner or by any means otherwise than by slaughter or killing while in a healthy condition, in my opinion does in terms forbid the sale — although not the killing — of any animal infected to any degree with tuberculosis, notwithstanding that such infection is local, and that the meat derived from the carcass thereof is not in any way affected by such disease.
Replying specifically to the order of the Honorable House of Representatives, therefore, I am constrained to say that in my opinion the laws and statutes of this Commonwealth do not per- mit meat derived from the carcasses of cattle infected to any degree with tuberculosis, or with any other disease, to be sold as food within this Commonwealth.
216
OPINIONS OF THE ATTORNEY-GENERAL.
I desire to point out, however, the obvious inconsistency which exists between St. 1908, c. .329, § 1, and other provisions of the laws of the Commonwealth and the provisions of the laws and rules and regulations of the Federal government in the premises.
To the State Board of Health.
1909 March 2fi.
Receptacle for Proprietary or Patent Medicine or Food Preparation — Label — Statement of Contents — Alcohol.
Where a proprietary or patent medicine or food preparation containing alcohol is put up in a glass bottle enclosed in a pasteboard wrapper, the provisions of St. 1906, c. 386, § 1, as amended by St. 1907, c. 259, § 1, requiring that "upon every package, bottle or other receptacle holding any proprietary or patent medicine or any proprietary or patent food preparation which contains alcohol . . . shall be marked or inscribed a statement on the label of the quantity or proportion of each of said substances contained therein," are complied with if a proper statement is inscribed upon the pasteboard wrapper, so long as such bottle is contained therein. If, however, the glass bottle is removed from such wrapper and separatelj' sold or offered for sale, the statutes above cited would require a statement of the quantity or pro- portion of alcohol contained in such bottle to be inscribed upon the bottle itself.
You have submitted to me an inquiry as to whether, in the case of a proprietary or patent food preparation containing alcohol, which is put up in a glass bottle enclosed in a paste- board wrapper, the requirements of St.- 1906, c. 386, § 1, as amended by St. 1907, c. 259, § 1, are complied with, if a state- ment of the quantity or proportion of alcohol contained therein is properly inscribed upon the pasteboard wrapper; that is, whether such statement must also be inscribed upon the glass bottle.
St. 1906, c. .386, § 1, as amended by St. 1907, c. 259, § 1, pro- vides in part that: —
Upon every package, bottle or other receptacle holding any proprietary or patent medicine, or any proprietary or patent food preparation, which contains alcohol, morphine, codeine, opium, heroin, chloroform, cannabis indica, chloral hydrate, or acetanilid, or any derivative or preparation of any such substances, shall be marked or inscribed a statement on the label of the quantity or proportion of each of said substances contained
DANA MALONE, ATTORNEY-GENERAL. 217
Dherein. . . . The pro\'isions of section nineteen of chapter seventy- ive of the Revised Laws, so far as they are consistent herewith, shall j,pply to the manner and form in which such statements shall be marked )r inscribed.
Section 6 of this statute imposes a penalty upon "whoever nanufactures, sells or offers for sale any . . . food preparation n violation of the provisions of this act ..."
R. L., c. 75, § 19, provides in part that "the required label ihall be firmly attached to or printed on the exterior of the said irticle, on the top or side thereof and in plain sight."
In my opinion, the requirements of these statutes are com- plied with so long as the glass bottle is within the pasteboard .vrapper, if a proper statement is inscribed upon the pasteboard vrapper. The required label is then "on the exterior of the )ackage or envelope." If, however, the glass bottle is removed rom the pasteboard wrapper and in this condition sold or of- 'ered for sale, these statutes are not complied with unless the itatement be properly marked or inscribed upon the glass bottle tself.
Che Soldiers' home in Chelsea — Charitable Corpora- tion — Purposes of Incorporation — Soldiers and Sailors.
The charitable corporation called the "Trustees of the Soldiers' Home in Massa- chusetts," created by the provisions of St. 1877, c. 218, for the purpose of establishing and maintaining in the city of Chelsea a home "for deserving soldiers and sailors and such members of their families as said trustees maj^ deem to be proper," may receive in such home or institution any deserving soldier or sailor, who has served in the organized military or naval forces either of the commonwealth or of the United States; and the transfer con- templated by St. 1908, c. 199, § 3, providing that "all real and personal estate held by said trustees shall revert to the commonwealth when the purpose for which the trustees were incorporated shall have been accomplished," may not be made upon failure to find inmates for the institution who have served in the late war of the rebellion.
I have vour letter of April 8, in w'hich vou inquire, on behalf TotheCom-
■" * ' . mittee on
>f the committee on finance of the Executive Council, "in re- {;-j,"guj|Ve^ ^''^ ;ard to the future transfer of the Chelsea Hospital by its board "^""gog"' 'f trustees to the Commonwealth." ^.5!!ll*-
218 OPINIONS OF THE ATTORNEY-GENERAL.
By the name "Chelsea Hospital" you doubtless intend to designate the home for worthy soldiers and sailors maintained in the city of Chelsea by the "Trustees of the Soldiers' Home in Massachusetts," a charitable corporation created by the pro- visions of St. 1877, c. 218, for the purpose of establishing and maintaining a home "for deserving soldiers and sailors and such members of their families as said trustees may deem to be proper." The Commonwealth has repeatedly appropriated money in aid of the institution so established. See Res. 1905, c. 50; 1906, c. 53; 1907, c. 12, etc. In addition to the an- nual appropriation so made by the Commonwealth, there have been from time to time other appropriations for the construction of additional buildings for the use of the institution. See Res. 1905, c. 77; St. 1906, c. 48; Res. 1907, c. 105, etc. In 1908 the charter of the corporation (St. 1877, c. 218) was amended by St. 1908, c. 199, which provided, among other things, for the representation among the trustees of the institution, three of whom are appointed by the Governor by and with the advice and consent of the Council, of the voluntary associations known as the "Massachusetts Division, Sons of Veterans, United States of America," and the "Department of Massachusetts, United Spanish War Veterans." In section 3 of this act there is a provision that "all real and personal estate held by said trustees shall revert to the commonwealth when the purpose for which the trustees were incorporated shall have been ac- complished," — a provision probably attached to the act for the reason that most of the property held or controlled by the corporation was donated or paid for from appropriations made by the Commonwealth.
Upon these facts I assume that in substance you desire to be advised whether or not "the purpose for which the trustees were incorporated" is to be deemed to have been accomplished when there may be no longer deserving soldiers or sailors who have served in and are veterans of the war of the rebellion. It is to be observed that the purposes of the institution, as expressed in St. 1877, c. 218, § 1, are not in any way limited to deserving soldiers or sailors who have served in any particular war, or,
DANA MALONE, ATTORNEY-GENERAL. 219
ideed, to soldiers who have served in any war; and in my pinion such purposes are sufficiently broad to include and apply 0 any deserving soldier or sailor who has served in the or- anized military or naval forces either of the Commonwealth r of the United States, and cannot fail so long as the United tates or the Commonwealth may maintain a regular military r naval force of enlisted soldiers or sailors. It is therefore my pinion that the transfer contemplated by St. 1908, c. 199, § 3, lay not be made upon failure to find inmates for the institu- ion known as the "Soldiers' Home in Massachusetts" who ave served in the late war of the rebellion, and that other eserving soldiers and sailors who are not veterans of that war lay be ehgible to become inmates thereof. In reaching this onclusion I do not deem it necessary to consider whether or ot the provisions of the section above referred to are effective t any time to secure in the manner contemplated the transfer ■f the real and personal estate held by the trustees of such in- titution.
NSURANCE — Accident and Health Disability — Form of Policy — Insurance Commissioner — Approval — Ex- ercise OF Legislative Power by Ministerial Of- ficer — Constitutional Law\
I proposed act, vesting in the Insurance Commissioner authority to approve the form of every policy of accident or health disability insurance issued in this Commonwealth, and constituting such approval a condition precedent to the issuance and delivery of such policy, without prescribing any standard form therefor or directing what, in substance, such policy shall contain, would be unconstitutional under the Constitution of Massachusetts, Article XXX. of the Bill of Rights, as a delegation of legislative power to a ministerial officer.
By your letter of April 5 you seek my opinion upon the To the onstitutionalitv of a proposed act relative to accident, health insurance.
\ . . 1909
nd disability insurance, which contains the following pro- April 21. isions: —
Section 1. On and after January first, nineteen hundred and ten, 10 policy of accident or health disability insurance shall be issued or lelivered in this commonwealth that does not provide for a period of :race in the pajTiient of premiums of at least thirty days during which
220 OPINIONS OF THE ATTORNEY-GENERAL.
period the policy shall remain in force nor until a copy of the form thereof has been filed at least thirty days with the insurance commissioner, and has been approved by him.
Section 2. If the insurance commissioner refuses to approve the form of policy aforesaid, he shall notify the proper officer of said com- pany, with a statement of the reasons of said commissioner for the refusal of his approval; and said company may, within a reasonable time after the receipt of such notification, petition the supreme court to review the said action of the insurance commissioner.
Insurance against bodily injury or death by accident and upon the health of individuals is authorized by St. 1907, c. 576, § 32, as amended by St. 1908, c. 248, which provides that: —
Ten or more persons residents of this commonwealth may form an insurance company for any one of the following purposes: —
Fifth, To insure any person against bodily injury or death by accident, or any person, firm or corporation against loss or damage on account of the bodily injury or death by accident of any person, or against damage caused by automobiles to property of another, for which loss or damage said person, firm or corporation is responsible, and to make insurance upon the health of individuals.
It is well established that the Legislature may prescribe a standard form of policy for any one or more of the kinds of in- surance authorized under the section above quoted, or may enact substantive provisions for all policies {Neio York Life In- surance Co. V. Hardison, 199 Mass. 190; Hewins v. London Assurance Corporation, 184 Mass. 177; Quinn v. Fire Association, 180 Mass. 560; Boyden v. Massachusetts Masonic Life Assn., 167 Mass. 242; St. 1907, c. 576, §§ 60, 91 and 93), and may em- power the Insurance Commissioner to pass upon and approve or disapprove both the form and substance of insurance policies submitted to him, in regard to such standard form or to any other requirement of law, vesting in the court the authority to review such finding upon petition of any company aggrieved thereby. Aetna Life Insurance Co. v. Hardison, 199 Mass. 181; Provident Savings, etc.. Society v. Cutting, 181 Mass. 261; St. 1907, c. 576, § 75.
DANA MALONE, ATTORNEY-GENERAL. 221
It is to be observed, however, that the authority of the In- surance Commissioner to approve or disapprove the form or substance of a pohcy of insurance, in the cases above cited, rests upon some statutory declaration of the essentials which such policy shall contain, and that the function of the commissioner is to determine, as a ministerial officer and in the management of the details in the administration of the law, whether or not such policy conforms to the requirements of law, his determina- tion being subject to judicial review. New York Life Insurance Co. v. Hardison, supra, p. 197.
With respect to the kinds of insurance here under considera- tion, to wit, accident, health and disability insurance, the Legis- lature has not established any standard form of policy, nor directed what in substance the contract shall contain; and in approving or disapproving any policy submitted to him under the provisions of section 1 of the proposed statute, the Insur- ance Commissioner must act upon his own unguided judgment, discretion and experience. In other words, the act in effect au- thorizes the Insurance Commissioner to establish such standard form or forms as he may deem applicable or proper in the premises, without in any particular indicating what shall be in- cluded therein. An authority so sweeping cannot be deemed to be the mere working out of details under a legislative act, or de- termination of facts upon which the application of a law has been made to depend, or discretion in its execution (see Com- monwealth v. Sisson, 189 Mass. 247), but is rather an authority to make or change the law itself. In other jurisdictions, where no standard form or other requirement has been established for contracts of insurance, a power vesting in the Insurance Com- missioner, or some other officer with like duties, to formulate and prescribe the nature of such contracts, has been held to be unconstitutional as a delegation of the legislative authority to a ministerial officer. King v. Concordia Fire Insurance Co., 140 Mich. 258, 268; O'Neil v. Insurance Co., 166 Pa. St. 77; An- derson V. Assurance Co., 59 Minn. 182; Phoenix Insurance Co. V. Perkins, 19 So. Dak. 59; Bowling v. Insurance Co., 92 Wis.
222 OPINIONS OF THE ATTORNEY-GENERAL.
73; and I see no reason to doubt the application in this Com- monwealth of the principals so established.
I am therefore of opinion that section 1 of the proposed act is unconstitutional, for the reason that it purports to delegate to and vest in a ministerial officer authority which may be con- stitutionally exercised only by the Legislature itself. Constitu- tion of Massachusetts, Bill of Rights, Article XXX.
I may add that in my opinion section 2 of the proposed act is objectionable upon like grounds, since it purports to impose upon the Supreme Judicial Court duties which are ministerial and not judicial in their nature. Case of Supervisors of Elec- tions, 114 Mass. 247.
Insurance — Corporation — Transaction of Insurance Business — Place of Contract — Jurisdiction.
A Massachusetts corporation maintaining a department store, which, in combina- tion with certain other corporations, persons and co-partnerships within and beyond the Commonwealth, has given to a resident in the State of New York a power of attorney to make contracts of insurance in its behalf with each of such other corporations, persons and co-partnerships in which all of the other corporations, persons and co-partnerships bear a proportionate and distinct liability, is transacting the business of insurance within the provisions of St. 1907, c. 576, § 3, which provides that "a contract of insurance is an agreement by which one party for a consideration promises to pay money or its equiva- lent or to do an act valuable to the assured upon the destruction, loss or injury of something in which the other party has an interest ..." If, however, such contracts are made in the State of New York, and no act in connection therewith is done within this Commonwealth, such corporation is not engaged in the business of insurance within the Commonwealth.
i5.i?ance ^^^ ^^k my Opinion upon the question whether or not a
commiasioner. Massachusctts Corporation maintaining a department store for -^^' the sale of dry goods and other merchandise, upon the facts
stated by you, should be held to be engaged in the business of insurance, and with respect thereto subject to the regulations and restrictions imposed by the laws of the Commonwealth upon the conduct of the business of insurance.
Upon the facts submitted it may be assumed that the cor- poration in question, and other persons, copartnerships and cor- porations within and beyond the Commonwealth, have given to a person resident in the State of New York their several powers
DANA MALONE, ATTORNEY-GENERAL. 223
of attorney which authorize such person to make contracts of in- surance with each of such persons, copartnerships and corpora- tions, in which all of the other persons, copartnerships and cor- porations shall bear a proportionate and distinct liability. By the powers of attorney so given an association has been created for the purpose above stated, which is managed and directed by a committee of five, representing those who have executed such powers of attorney, which committee has the power to dis- qualify and close the account of any member of such association; to maintain a general supervision over the acts of the attorney in fact; and to take charge of money received by him, subject to the deduction of his compensation, and to invest the same.
Upon these facts two questions are presented; first, whether or not the transactions above described constitute the business of insurance as defined by the provisions of the laws of the Commonwealth; and, second, if such transactions do constitute the business of insurance, whether or not such business may be regulated in accordance with the insurance laws.
No difficulty is presented by the first question. St. 1907, c. 576, § 1 , provides that : —
In this act, unless the context otherwise requires : — "Company" or "insurance company" includes all corporations, asso- ciations, partnerships or individuals engaged as principals in the business of insurance.
Section 3 provides : —
A contract of insurance is an agreement by which one party for a con- sideration promises to pay money or its equivalent or to do an act valu- able to the assured upon the destruction, loss or injury of something in which the other party has an interest, and it shall be unla^^^ul for a com- pany to make a contract of insurance upon or relative to any property or interests or lives in this commonwealth, or with any resident thereof, or for any person as insurance agent or insurance broker to make, negotiate, solicit or in any manner aid in the transaction of such insurance, except as authorized by the provisions of this act or the laws relating to "fra- ternal beneficiary corporations" and "assessment insurance." All con- tracts of insurance on property, lives or interests in this commonwealth shall be deemed to be made therein.
224 OPINIONS OF THE ATTORNEY-GENERAL.
The transaction of the corporation in question, in my opinion, clearly constitutes the business of insurance. The corporation by its authorized agent receives a contract of insurance under which, in case of loss, each member of the association is sever- ally and distinctly bound to pay a proportionate part. Such corporation, also through its agent, makes with each and every other member a similar contract, upon which it in turn is severally liable for its proportionate share of the total amount of insurance provided for in such contract. It follows that the corporation, through its agent, has made as many separate con- tracts of insurance as there are persons, copartnerships or cor- porations which have filed powers of attorney with the com- mon agent; or, in other words, it has participated in separate contracts of insurance equal in number to the total number of such powers of attorney. It is to be observed that this is not the case of a corporation which insures in a mutual insurance company, thereby binding itself by a single contract to pay assessments wherever loss is incurred by any member of the company; the distinction being that in such case there is but a single contract, providing for the payment of such assessments as may be necessary, while here the corporation has written as many separate contracts of insurance as there are members of the association, and it will continue to write additional and separate policies as often as new members are admitted thereto.
I am confirmed in the view already expressed by section 91 of chapter 576 of the x\cts of 1907, which provides for the regula- tion of associations of individuals wdio conduct the business of insurance in the manner known as Lloyds, " whereby each asso- ciate underwriter becomes liable for a proportionate part of the whole amount insured by a policy."
Upon the second inquiry a more difficult question is pre- sented. Although it is not specifically so stated, I assume that the contracts made under authority of the power of attorney given by the corporation in question are made in New York, that payments upon them by way of premiums or other charges and payments of losses are there made, and that no business is in fact conducted within this Commonwealth. This being so,
DANA MALONE, ATTORNEY-GENERAL. 225
t would seem that if the association, with the exception of the Vlassachusetts corporation, w^ere composed of persons, copart- lerships or corporations which were not domiciled or located vithin the Commonwealth, the insurance by such corporation if its property in Massachusetts with such association could not )e regulated by the laws of this Commonwealth. In Allgeyer \ Louisiana, 165 U. S. 578, 591, the court, in holding that the )tate of Louisiana could not constitutionally prohibit the mak- Qg of contracts by its citizens with corporations not permitted 0 do business in the State of Louisiana, where such contracts rere made beyond the limits of that State, said : —
In the privilege of pursuing an ordinary calling or trade and of acquir- ig, holding and selling property must be embraced the right to make all roper contracts in relation thereto, and although it may be conceded hat this right to contract in relation to persons or property or to do busi- ess within the jurisdiction of the State may be regulated and sometimes rohibited when the contracts or business conflict with the policy of the tate as contained in its statutes, yet the power does not and cannot xtend to prohibiting a citizen from making contracts of the nature in- olved in this case outside of the limits and jurisdiction of the State, and .•hich are also to be performed outside of such jurisdiction; nor can the tate legally prohibit its citizens from doing such an act as writing this ?tter of notification, even though the property which is the subject of he insurance may at the time when such insurance attaches be within he limits of the State.
It must, I think, be equally true that a person resident in Massachusetts and engaged in other business therein may be- 'ond the limits of the Commonwealth execute a contract to nsure a person domiciled in another State, and that persons nay go from Massachusetts into other jurisdictions with the •urpose either of insuring or of being insured, and may execute dth citizens of other States such contracts as they desire to nake. It can hardly be that, if persons so minded meet in nother jurisdiction and assume toward each other the rela- ions of insurer and insured under a contract made and to be performed in such jurisdiction, doing no act in connection herewith in this Commonwealth, they may, upon their return
OPINIONS OF THE ATTORNEY-GENERAL.
The transaction of the corporation in question, in my opinion, clearly constitutes the business of insurance. The corporation by its authorized agent receives a contract of insurance under which, in case of loss, each member of the association is sever- ally and distinctly bound to pay a proportionate part. Such corporation, also through its agent, makes with each and every other member a similar contract, upon which it in turn is severally liable for its proportionate share of the total amount of insurance provided for in such contract. It follows that the corporation, through its agent, has made as many separate con- tracts of insurance as there are persons, copartnerships or cor- porations which have filed powers of attorney with the com- mon agent; or, in other words, it has participated in separate contracts of insurance equal in number to the total number of such powers of attorney. It is to be observed that this is not the case of a corporation which insures in a mutual insurance company, thereby binding itself by a single contract to pay assessments wherever loss is incurred by any member of the company; the distinction being that in such case there is but a single contract, providing for the payment of such assessments as may be necessary, while here the corporation has WTitten as many separate contracts of insurance as there are members of the association, and it will continue to write additional and separate policies as often as new members are admitted thereto.
I am confirmed in the view already expressed by section 91 of chapter 576 of the Acts of 1907, which provides for the regula- tion of associations of individuals who conduct the business of insurance in the manner known as Lloyds, "whereby each asso- ciate underwriter becomes liable for a proportionate part of the whole amount insured by a policy."
Upon the second inquiry a more difficult question is pre- sented. Although it is not specifically so stated, I assume that the contracts made under authority of the power of attorney given by the corporation in question are made in New York, that iniymoTits upon them by way of premiums or other charges and payments of losses are there made, and that no business is in fact conducted within this Commonwealth. This being so,
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DANA M ALONE, ATTORNEY-GENERAL.
: would seem that if the association, with the exception of the Massachusetts corporation, were composed of persons, copart- irships or corporations which were not domiciled or located [thin the Commonwealth, the insurance by such corporation its property in Massachusetts with such association could not e regulated by the laws of this Commonwealth. In All gey er . Louisiana, 165 U. S. 578, 591, the court, in holding that the tate of Louisiana could not constitutionally prohibit the mak- ig of contracts by its citizens w^ith corporations not permitted ) do business in the State of Louisiana, where such contracts ere made beyond the limits of that State, said : —
In the privilege of pursuing an ordinary calling or trade and of acquir- g, holding and selling property must be embraced the right to make all oper contracts in relation thereto, and although it may be conceded at this right to contract in relation to persons or property or to do busi- within the jurisdiction of the State may be regulated and sometimes ohibited when the contracts or business conflict with the policy of the ate as contained in its statutes, yet the power does not and cannot tend to prohibiting a citizen from making contracts of the nature in- •)lved in this case outside of the limits and jurisdiction of the State, and ich are also to be performed outside of such jurisdiction; nor can the •ate legallj^ prohibit its citizens from doing such an act as -RTiting this Dter of notification, even though the property which is the subject of e insurance may at the time when such insurance attaches be within e limits of the State.
225
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It must, I think, be equally true that a person resident in Massachusetts and engaged in other business therein may be- )nd the limits of the Commonwealth execute a contract to sure a person domiciled in another State, and that persons ay go from Massachusetts into other jurisdictions with the irpose either of insuring or of being insured, and may execute ith citizens of other States such contracts as they desire to ake. It can hardly be that, if persons so minded meet in lother jurisdiction and assume toward each other the rela- 3ns of insurer and insured under a contract made and to be ■rformed in such jurisdiction, doing no act in connection icrewith in this Commonwealth, they may, upon their return
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226 OPINIONS OF THE ATTORNEY-GENERAL.
thereto, be held to be conducting in Massachusetts the business of insurance. If all the acts with relation to the creation of such a contract are in fact accomplished in another jurisdic- tion, the mere residence of the parties in Massachusetts would not confer upon this Commonwealth any jurisdiction to regu- late either the form of the contract or the performance of its obligations. And if a single contract is beyond the jurisdic- tion of the Commonwealth when made under such circum- stances, a series of contracts so made is equally beyond such jurisdiction, and the making of such" contracts would not con- stitute the business of insurance within the Commonwealth solely by reason of the fact that the contracting parties were resident therein.
Upon the assumption already made, therefore, that all the contracts of insurance referred to are in fact made in the State of New York, and that no act in connection therewith is done within this Commonwealth, I am of the opinion that the cor- poration in question is not engaged in the business of insurance within the Commonwealth, and that such business conducted in the State of New York cannot be regulated or controlled by the laws of this Commonwealth.
Governor and Council — Authority to Investigate Ex- penditures OF Departments and Institutions — Com- mittee ON Ways and Means.
The Governor and Council may make investigations for the purpose of ascertaining whether or not money appropriated by the Legislature for the several depart- ments and institutions ■which, or the expenditures of which, are by law subject to their supervision, is being expended in a proper manner; but they may not constitutionally prevent the expenditure of money so appropriated for the purposes for which it was appropriated.
The committee on ways and means of the Legislature may at any time ask the advice of the Governor and Council in regard to a proposed appropriation, but is not required so to do.
Governor. Replying to Your Excellency's letter, in whicn you say,
AprT26. " It h^s been intimated that under the Constitution of the Com-
monwealth the Governor and Council has authority to investi- gate the expenditures in any department and to familiarize
DANA MALONE, ATTORNEY-GENERAL. 227
;self as much as it sees fit with any of the expenditures of the 'ommonwealth," and ask whether or not this is so, and also hether the ways and means committee of the Legislature lay ask the advice of the Council in regard to any proposed ppropriations for expenditures.
As to the duties of the Council, the Constitution of ^Nlassa- ausetts, part second, chapter II, section III, article I, pro- ides: —
There shall be a council for advising the governor in the executive part ' the government . . . ; and the governor, with the said councillors, or v^e of them at least, shall and may, from time to time, hold and keep council, for the ordering and directing the affairs of the commonwealth, ;cording to the laws of the land.
Article V of said section provides : —
The resolutions and advice of the council shall be recorded in a regis- T, and signed by the members present ; and this record may be called ! r at any time by either house of the legislature; . . .
I Under chapter II, section I, article XI, of the Constitution it ' provided : —
No moneys shall be issued out of the treasury of this commonwealth, id disposed of (except such sums as may be appropriated for the redemp- Dn of bills of credit or treasurer's notes, or for the payment of interest ising thereon) but by warrant under the hand of the governor for the me being, with the advice and consent of the council, for the necessary ;fence and support of the commonwealth; and for the protection and ■eservation of the inhabitants thereof, agreeably to the acts and resolves
the general court.
R. L., c. 6, § 28, provides as follows: —
Except as hereinafter provided, no money shall be paid from the treas- y without a warrant from the governor drawn in accordance with an )propriation in some act or resolve of the same or of the preceding year ter the demand or account to be paid has been certified by the auditor; it the principal and interest on all public debts shall be paid when due thout any warrant, and the governor may, without an appropriation.
228 OPINIONS OF THE ATTORNEY-GENERAL.
draw his warrant for the pajaiient of his own salary and the salaries of the justices of the supreme judicial court, for the payments required to be made from the income of the school fund, and for repayments required by section sixty-eight of chapter fourteen. No certificate shall be required from the auditor for payment of the pay rolls of the members of the council and general court.
The articles of the Constitution and the statutes above quoted are the only general laws defining the duties of the Governor and Council in reference to expenditures. The Legis- lature frequently by an act or resolve provides that payments shall be made only upon approval of the Governor and Council, and in such cases statutes should be carefully examined in order to ascertain what are the prerequisites to the exercise of the authority of the Governor, with the advice and consent of the Council, to draw a warrant on the treasury. Whenever it appears that by such act or resolve the Legislature has either referred a claim or demand to any other officer or board or the Auditor of Accounts to be examined and audited, or has indicated an intention that money appropriated shall be paid upon the warrant of the Governor, with the advice and consent of the Council, then the general law above quoted will be so far modified. See Opinion of the Justices, 13 Allen, 594.
As Your Excellency knows, appropriations are made by the Legislature after hearings before the ways and means committee or otherwise as in the judgment of the Legislature seems best. The Governor and Council have no right to withhold an appro- priation by refusing to draw a warrant therefor merely because such appropriation is thought by them to be unwise. The time for the Governor to object to an appropriation is when the act or resolve comes before him for signature after it has been en- acted by the Legislature. That power is always open to him, and should be exercised when in his judgment an expenditure is thought by him to be unwise or unwarranted.
I quote, as to the duty of the Auditor of Accounts in refer- ence to expenditures, section 15 of chapter 6 of the Revised Laws, which is as follows : —
1 o'
DANA MALONE, ATTORNEY-GENERAL. 229
He shall examine all accounts and demands against the commonwealth, xcepting those for the salaries of the governor and of the justices of the upreme judicial court, those due on account of the principal or interest if a public debt, or of the pay rolls of the executive council, the senate or he house of representatives. He may require affidavits that articles lave been furnished, services rendered and expenses incurred, as claimed, luch affidavit for any state institution may be made by the disbursing fficer thereof. The auditor shall in all cases make a certificate specifying he amount due and allowed on each demand, the name of the person to .-horn such amount is payable, the law authorizing the same and the ead of expenditure to which it is chargeable. If the general court, by xpress statute, authorizes a board or public officer to approve demands gainst the commonwealth, and an appropriation therefor has been lade, the auditor shall, when such demands have been properly approved, romptly audit and certify such an amount, not exceeding the appropria- ion for that piirpose, as he may deem correct; and if it appears to him iiat there are improper charges in said accounts, he shall report the same 3 the governor and council, with a separate certificate therefor. He shall 3tain in his office copies of all such certificates and transmit the origi- als to the governor, who, with the advice and consent of the council, lay issue his warrant to the treasurer and receiver general for the amount aerein specified as due.
Also section 19 of said chapter, which is as follows: —
All original bills and vouchers on which money has been or may be aid from the treasury upon the certificate of the auditor or the warrant f the governor shall be kept in the auditor's department; and all boards, ommissions or public officers authorized to make contracts under which loney may be payal^le from the treasury shall file with the auditor irtified copies thereof.
The Governor and Council may at any time examine such ills and vouchers in the Auditor's department, and thus fa- liliarize themselves with the expenditures of the Common- ealth as much as they wish. They may take such measures s they see fit to ascertain that the money appropriated for the arious institutions in the Commonwealth is being expended in le manner inteilded by the Legislature, and may make such ersonal investigation at the institutions themselves as may be ecessary to make sure that this is being done; but they have
230 OPINIONS OF THE ATTORNEY-GENERAL.
no right to say that the money appropriated by the Legisla- ture shall not be expended in the way authorized by it. There are various departments under the immediate supervision of the Governor, and in such departments it is his duty to see that the money appropriated is properly expended therein. There are other departments in which it is the duty of the head of such departments to see that the money appropriated is properly expended, and for which the Governor is not re- sponsible, and in which he has no authority except so far as may be necessary to see that the warrants are drawn in ac- cordance with the appropriations authorized by the Legisla- ture. Should the Governor and Council be of opinion that the finances of any institution are not being properly and economically expended, the remedy would be by removal of the trustees or other officers over whom they have authority, in accordance with the statutes in such case made and pro- vided. To this extent, under the Constitution and law of the Commonwealth the Governor and Council have authority to investigate the expenditures of any department, and to familiar- ize themselves as much as they see fit with any of the ex- penditures of the Commonwealth.
Replying further, the ways and means committee of the Legislature, or any legislator, has a perfect right to request the advice of the Governor and Council in regard to any proposed appropriation for expenditures, or the advice of any other per- son; but that committee is not obliged to do so, and it may act upon the advice or not, as it sees fit.
DANA MALONE, ATTORNEY-GENERAL. 231
:sPECTiox OF Buildings — Inspector of Factories and Public Buildings — Plans — Establishment — Accom- modations for Ten or More Employees above Second Story.
le word "establishment," as used in R. L., c. 104, § 22, which in part provides that "no building more than two stories in height which is designed to be used above the second story, in whole or in part, as a factory, workshop or mer- cantile or other establishment and has accommodations for ten or more em- ployees above said story, . . . shall be erected until a copy of the plans thereof has been deposited with the inspector of factories and public build- ings for the district in which it is to be erected . . .", refers to a single business organization, and does not include a number of offices above the second story which are independently occupied, and in none of which are ten or more persons employed.
Your communication of April 2 requires my opinion upon the To the
... " Chief of the
Uowmg question: Massachusetta
° ^ District Police.
1909
Is the person who erects or constructs a building^ or an architect or her person who draws plans or specifications or superintends tlie erec- >n or construction of a building having ten or more rooms above the 3ond floor and which are designed to be used for business offices, and no one of said offices are ten or more persons to be employed, required deposit the plans and specifications of said building with the inspector factories and public buildings of the district in wliich the building is be erected?
Your inquiry appears to relate to R. L., c. 104, § 22, which ovides that: —
Xo building which is designed to be used, in whole or in part, as a blic building, pubUc or private institution, school house, church, eatre, pubhc hall, place of assemblage or place of public resort, and no ilding more than two stories in height which is designed to be used ove the second story, in whole or in part, as a factor\', work-shop or ?rcantile or other establishment and has accommodations for ten or )re employees above said story, and no building more than two stories height designed to be used above the second story, in whole or in part, a hotel, family hotel, apartment house, boarding house, lodging house tenement house, and has ten or more rooms above said story, shall erected until a copy of the plans thereof has been deposited with the
May 17.
232 OPINIONS OF THE ATTORNEY-GENERAL.
inspector of factories and public buildings for the district in which it is to be erected by the person causing its erection, or by the architect thereof. . . .
The interpretation to be given to the above section with re- spect to the present inquiry must depend upon the meaning of the word "establishment," since it is clear that the building to which you refer is not designed for use either as a factory or as a workshop. The word "establishment" in this connection is defined as: —
An organized household or business concern and everything connected with it, as servants, employees, etc.; an institution, whether public or private: as, a large establishment in the country; a large iron or clpthing estahlishvient; a hydropathic or water-cure establishment.
The word "establishment" therefore imports a single busi- ness organization of some extent, and several offices in which are conducted distinct occupations may not be joined together to create an establishment within the meaning of the statute. The section above quoted includes only such an establishment or business, carried on in any building, as may have accommo- dations for ten or more employees above the second story. This language, in my opinion, must be taken to refer to a single establishment, and not to a number of offices which are inde- pendently occupied and in none of which are ten persons em- ployed, although in the aggregate there may be ten or more employees.
Confining myself to the precise form of the question submitted, therefore, and without attempting to otherwise limit or define the meaning of the words "mercantile or other establishment," I am of opinion that the question submitted should be answered in the negative.
I
DANA MALONE, ATTORNEY-GENERAL. 233
Boston Railroad Holding Company — Acquisition of Stock, Bontds, and Other Evidences of Indebtedness OF THE Boston & Maine Railroad — Restraint of Trade — Anti-Trust Act.
The proposed bill (now St. 1909, c. 519) incorporating the Boston Railroad Holding Company, which authorized such company to acquire the stock, bonds and other evidences of indebtedness of the Boston & Maine Railroad, and permitted any railroad corporation existing under the laws of the Common- wealth at the date of the passage of such bill to guarantee the principal of and the dividends and interest upon the capital stock, bonds, notes and other evidences of indebtedness of the Boston Railroad Holding Company, and to acquire and hold such stock, bonds, notes and other evidences of indebtedness, is not in conflict with the provisions of the so-called Anti-Trust Act, the Federal Statute of July 2, 1890 (26 Stat. 209), which provides in section 1 that " every contract, combination in the form of trust or otherwise, or con- spiracy in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared illegal."
The committee on railroads has submitted to me for my To the
^ Committee on
Dpinion the following question : — ^i909°^^^*
May 27.
The committee on raihoads is considering the so-called holding com- pany bill submitted to it by you. The question has been raised as to whether, if the New Haven Railroad were to control, directly or indirectly, this company, it would be a violation of the so-called Sherman Anti-Trust Act or of any other federal statute, or whether the holding company could then be made a party to the federal suit now pending against the New Haven Railroad.
I assume that the inquiry of the committee is directed to any action upon the part of the New York, New Haven & Hartford Railroad Company which may be authorized by the provisions of section 4 of the proposed bill, which, so far as material, are as follows : —
Any railroad corporation incorporated at the date of the passage of this act under the laws of this commonwealth may guarantee the princi])al of and the dividends and interest upon the capital stock, bonds, notes and other evidences of indebtedness of said Boston raihoad holding company, and may acquire and hold said stock, bonds, notes and other evidences of indebtedness: provided, however, that the shares of stock of said Boston railroad holding company shall not be sold or transferable until said stock has been guaranteed as hereinbefore provided. Any
234 OPINIONS OF THE ATTORNEY-GENERAL.
railroad corporation acquiring said stock as hereinbefore provided shall not thereafter sell the same without the express authority of the legislature.
The so-called Sherman Anti-Trust Act, the statute of July 2, 1890 (26 Stat. 209), which is, so far as I am aware, the only federal statute material in the premises, is entitled "An Act to protect trade and commerce against unlawful restraints and monopolies," and provides in section 1 that: —
Every contract, combination in the form of trust or otherwise, or con- sph-acy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punislmients, in the discretion of the court.
It provides in section 2 that: —
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor.
These provisions of law have been the subject of numerous decisions by the Supreme Court of the United States: United States v. E. C. Knight Co., 156 U. S. 1; United States v. Trans- Missouri Freight Association, 166 U. S. 290; United States v. Joint Traffic Association, 171 U. S. 505; Hopkins v. United States, 171 U. S. 578; Anderson v. United States, 171 U. S. 604; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Montague & Co. v. Lowry, 193 U. S. 38; Northern Securities Co. v. United States, 193 U. S. 197; Swift & Co. v. United States, 196 U. S. 375; Loewe v. Laivlor, 208 U. S. 274; Shawnee Com- press Co. V. Anderson, 209 U. S. 423; and see United States v. American Tobacco Co., 164 Fed. 700; Bigeloio v. Calumet & Hecla Mining Co., 167 Fed. 721.
Of the cases above cited, the Northern Securities Co. v. United States (193 U. S. 197), known as the "Northern Securities
DANA MALONE, ATTORNEY-GENERAL. 235
lase," was the most important, as it was the most sweeping in ffect. In that case the basis of the complaint brought by the ?deral government was the acquisition by the Northern Securi- es Company, a corporation of the State of New Jersey, of the ontrol of the Great Northern Railway Company, operating nes of railway which extended from Duluth and St. .Paul in he State of Minnesota, to Portland in the State of Oregon, and 0 Everett and Seattle in the State of Washington, and the s'orthern Pacific Railway Company, operating lines of railway rem Ashland in the State of Wisconsin, and from Duluth and it. Paul in the State of Minnesota, to Portland in the State of )regon, and to Spokane, Seattle and Tacoma in the State of Vashington, which were parallel and competing lines, and were ngaged in active competition for interstate freight and pas- enger traffic. This was effected by means of an exchange of he stock issued by the Northern Securities Company for that »f the two railroads above mentioned, and the possession of uch stock vested in the Northern Securities Company the ;ontrol of both railroads, with the direct and necessary effect, IS the court said, "to restrain and monopolize interstate com- nerce by suppressing or (to use the words of this court in United States v. Joint Traffic Association) 'smothering' compe- -ition between the lines of tAvo railway carriers" (p. 354). A najority of the court held this transaction to be a violation of l:he Anti-Trust Act, so called, and the Northern Securities Com- pany was required to reconvey to the former holders all of the jtock of the Great Northern Railway Company and the North- ern Pacific Railway Company which had come into its posses- sion. After reviewing and summarizing the previous decisions upon the Anti-Trust Act, the majority opinion laid down certain principles as established by such decisions and within which the case before the court was held to fall. These prin- ciples, as declared by the court, speaking through ]Mr. Justice Harlan, were as follows : —
That although the act of Congress known as the Anti-Trust Act has lie reference to the mere manufacture or production of articles or com- modities within the limits of the several States, it does embrace and
236 OPINIONS OF THE ATTORNEY-GENERAL.
declare to be illegal every contract, combination or conspiracy, in what- ever fomi, of whatever nature, and whoever may be parties to it, which directly or necessarily operates in restraint of trade or commerce among the several States or ivith foreign nations;
That the act is not limited to restraints of interstate and international trade or commerce that are unreasonable in their nature, but embraces all direct. restraints imposed by any combination, conspiracy or monopoly upon such trade or conamerce;
That railroad carriers engaged in interstate or international trade or commerce are embraced by the act ;
That combinations even among private manufacturers or dealers whereby interstate or international commerce is restrained are equally embraced by the act;
That Congress has the power to estabhsh rules by which interstate and international commerce shall be governed, and, by the Anti-Trust Act, has prescribed the rule of free competition among those engaged in such commerce;
That every combination or conspiracy which would extinguish com- petition between otherwise competing railroads engaged in interstate trade or commerce, and which would in that way restrain such trade or commerce, is made illegal by the act;
That the natural effect of competition is to increase commerce, and an agreement whose direct effect is to prevent this play of competition restrains instead of promotes trade and coinmerce;
That to vitiate a combination, such as the act of Congress condemns, it need not be shown that the combination, in fact, results or will result in a total suppression of trade or in a complete monopoly, but it is only essential to show that by its necessary operation it tends to restrain interstate or international trade or commerce or tends to create a monopoly in such trade or commerce and to deprive the pubUc of the advantages that flow from free competition;
That the constitutional guarantee of liberty of contract does not pre- vent Congress from prescribing the rule of free competition for those engaged in interstate and international commerce; and
That under its power to regulate commerce among the several States and with foreign nations. Congress had authority to enact the statute in question.
The court also, in eflfect, decided that the Anti-Trust Act might be enforced against a State corporation acting within its charter powers, provided that such action created a combina- tion or conspiracy which was in restraint of interstate trade; and disposed of the contention upon the part of the defendants
DANA MALONE, ATTORNEY-GENERAL. 237
hat if the statute were held to embrace the particular case hen under consideration it would be repugnant to the Consti- ution of the United States.
Such, then, in brief, are the affirmative propositions estab- shed by the Northern Securities case, and the statute must low be taken to extend to every combination or conspiracy in estraint of interstate commerce, whether reasonable or un- easonable. See Shaumee Compress Co. v. Anderson, supra; Jnitecl States v. American Tobacco Co., supra.
If the principle so declared is to be accepted without reserva- ion or qualification, it must be conceded that it would reach ,nd forbid every kind of combination of individuals or corpo- ations in any way engaged in interstate commerce, and would n and of itself be decisive of the present inquiry; but in the s'orthern Securities decision the court did not have before it a :ase which involved the consolidation by express authority of a 5tate of two domestic railroad corporations engaged in inter- ;tate traffic, or the control of one by the other, expressly sanc- ioned by the same authority; on the contrary, the combina- ;ion before the court was expressly forbidden by the State in .vhich one of the constituent railroads was incorporated and DOth were extensively operated (see Gen. Laws of Minn., 1899, 3. 359; Laws of Minn., 1881, p. 109; 1874; p. 154), and was effected by means of a corporation of a State at a distance from :he territory in which such railroads were located.
I conceive, therefore, that the first and more important ques- tion which is presented by the communication of the committee IS in substance whether or not the provisions of the Anti-Trust A.ct include and prohibit a consohdation of two railroad corpora- tions, such consolidation being duly authorized by the State by which they were created, or a control of one such railroad by the other, duly sanctioned by the Legislature of such State; and to this inquiry I reply as follows: —
The right of a State to authorize or require or forbid the con- solidation of corporations which are subject to its jurisdiction is clearly recognized by the decisions of the Supreme Court of the ' United States. In Louisville & Nashville Railroad Co. v. Ken-
238 OPINIONS OF THE ATTORNEY-GENERAL.
tiicky, 161 U. S. 677, where the court was dealing with the con- soHdation of the Louisville & Nashville Railroad Company, the Chesapeake, Ohio & Southwestern Railroad Company and cer- tain subordinate corporations, a consolidation alleged to be in violation of the provisions of section 201 of the Constitution of Kentucky of 1891, which forbade the consolidation of the capital stock, franchise or property, or the pooling of the earn- ings, of certain corporations, including railroad corporations, it is nowhere intimated that the power of a State to authorize or forbid the consolidation of railroad corporations within its limits is to be .confined to lines of railroad engaged exclusively in Mi^rastate commerce. Upon the other hand, the court, at page 702, uses language which expressly concedes and confirms the right of a State to create and to regulate the instruments of interstate commerce within its jurisdiction, even to the extent of permitting the purchase by one railroad corporation of the stock of another : —
It has never been supposed that the dominant power of Congress over interstate commerce took from the States the power of legislation with respect to the instruments of such commerce, so far as the legislation was within its ordinary police powers. Nearly all the railways in the country have been constructed under State authority, and it cannot be supposed that they intended to abandon their power over them as soon as thej' were finished. The power to construct them involves necessarily the power to impose such regulations upon their operation as a sound regard for the interests of the public may seem to render desirable. In the division of authority with respect to interstate railways Congress reserves to itself the superior right to control their commerce and forbid interference therewith; while to the States remains the power to create and to regulate the instruments of such commerce, so far as 'necessary to the conservation of the public interests.
If it be assumed that the States have no right to forbid the consolida- tion of competing lines, because the whole subject is within the control of Congress, it would necessarily follow that Congress would have the power to authorize such consolidation in defiance of State legislation,— a proposition which only needs to be stated to demonstrate its unsound- ness. As we have already said, the power of one railway corporation to . purchase the stock and franchises of another must be conferred by express language to that effect in the charter; and hence, if the charter of the Louisville & Nashville Company had been silent upon that point, it will
DANA M ALONE, ATTORNEY-GENERAL. 239
e conceded that it would have no power to make the proposed purchase 1 this case. As the power to pui-chase, then, is derivable from the State, le State may accompany it with such limitations as it may choose to npose.
See also Railroad Co. v. Maryland, 21 Wall. 456.
The case of Louisville & Nashville Railroad Co. v. Kentucky •as decided on March 30, 1896, more than five years after the assage of the Anti-Trust Act; and while the statute was not ivolved in the question at issue, and was not referred to in the pinion, the court must be deemed to have been well aware of :s provisions, and upon that date to have declared that such revisions did not limit the right of a State to regulate and ontiol domestic railroad corporations so far as necessary to the onservation of the public interests; and that even in the case •f competing railroads such regulation and control did not con- titute an interference with interstate commerce. See Pearsall '. Great Northern Raihvay Co., 161 U. S. 646; Cleveland, etc., ly. Co. V. Illinois, 177 U. S. 514; Wisconsin, Minnesota & ^acific Railroad v. Jacobson, 179 U. S. 287, 297; Louisville & Sashville Railroad Co. v. Kentucky, 183 U. S. 503, 519; see Jso Missouri Pacific Raihvay v. Larrahee Mills, 211 U. S. 612, )21.
It is evident that the several States have never regarded the statute as prohibiting or even limiting their action with respect ;o the regulation and control of domestic railroad corporations IS an exercise of the police power. In this Commonwealth the \'ew York, New Haven & Hartford Railroad Company, the Boston & Maine Railroad and the Boston & Albany Railroad Company, as they now exist, are the result of numerous consoli- lations, leases and other forms of control authorized by the ;tatutes of this Commonwealth and of other States in which ;hey have been incorporated. Subsequent to 1890, when the \nti-Trust Statute was enacted, the Boston & Albany Railroad Company has been leased to the New York Central & Hudson River Railroad Company by authority of St. 1900, c. 468; the Fitchburg Railroad Company has been leased to the Boston k Maine Railroad by authority of St. 1900, c. 426; the Old Colony
240 OPINIONS OF THE ATTORNEY-GENERAL.
Railroad Company has been leased to the New York, New Haven & Hartford Railroad Company by authority of the general law (1894); and numerous other statutes have been enacted authorizing consolidations or leases of railroads within the Commonwealth. See St. 1894, c. 53; St. 1898, cc. 194, 399; St. 1900, c. 424 (and see St. 1906, c. 463, part I, § 67; St. 1907, c. 585). In no one of these instances has the au- thority of the Commonwealth or the legality of the action of any railroad thereunder been questioned by the federal author- ities. I cannot believe that it was beyond the power of the Commonwealth to enact the legislation by which these con- solidations were effected, or that the federal courts would enter- tain bills in equity to enjoin their further continuance, or sus- tain criminal suits against the officers who operate the lines of railroad which they include; and in this respect I am unable to distinguish between a consolidation and any other form of com- bination or control. So long as a combination is created by] State authority, it seems to me immaterial by what means it is effected, whether by a holding company, a lease or a con- solidation.
Notwithstanding any doubt which may be created by the language of the decision in the Northern Securities case, I am therefore constrained to conclude that' there is still vested in the several States, under the police power, authority to regulate and control domestic railroad corporations, notwithstanding that such corporations are instrumentalities of and are engaged in interstate commerce and in competing therefor, including the power to authorize their consolidation or the control of one by another through a lease or the ownership of stock; and I am further of opinion that it is within the authority of the Com- monwealth to pass the proposed act now before the committee, and that action thereunder by the New York, New Haven & Hartford Railroad Company or by any other railroad corpora- tion chartered by the Commonwealth of Massachusetts would not constitute a violation of the Anti-Trust Act. If the law were otherwise it would, in my judgment, create inextricable confusion in every State in the Union, and, in the words of Mr.
DANA MALONE, ATTORNEY-GENERAL. 241
istice Holmes, a former chief justice of the highest court of the ommonwealth, in his dissenting opinion in the Northern Secur- iies case, would "disintegrate society so far as it could into dividual atoms."
Whether or not the holding company contemplated by the •oposed statute might properly be made a party to the suit •ought under the Anti-Trust act in the federal court, and now mding, against the New York, New Haven & Hartford Rail- •ad Company, is a question which must depend upon the ulti- ate decision in that suit, and I cannot with propriety attempt I foretell what that decision may be. I may, how^ever, sug- 'st that the allegation which concerns the ownership or con- ol of the stock of the Boston & Maine Railroad by the New ork, New Haven & Hartford Railroad Company is but one nong several grounds for federal action, and is not essential » the maintenance of the suit; and that such allegation is ised upon a state of facts which, as I am advised, does not 3W exist, and which may be distinguished from the state of ,cts which would exist if action were taken by the New York, ew Haven & Hartford Railroad Company under the proposed atute now before the committee.
Register of Deeds — Duty to record Instrument in Foreign Language.
register of deeds is not by law required to receive and record an instrument in a foreign language, whether or not such instrument is accompanied by a translation.
In reply to your inquiry as to "whether or not a register of ^°J|jfn^r°^' eeds within this Commonwealth is obliged under its laws to ^""^^^^ ^^<^oTds. !eeive and record any instrument in a foreign language, even "°^
the said instrument be accompanied by a translation," I ivise you that in my opinion a register of deeds is not obliged ) receive and record any instrument in a foreign language, even lough such instrument be accompanied by a translation.
The purpose of recording an instrument in the registry of
242 OPINIONS OF THE ATTORNEY-GENERAL.
deeds is to give notice of the contents thereof. It follows that the record must be such that a person examining it with a rea- sonable degree of care and intelligence may obtain actual notice of the facts recorded. Persons making such examinations can- not, in my opinion, reasonably be required to be familiar with languages other than English, which is the language used in the conduct of the affairs of the Commonwealth and in ordinary business transactions. Since the record must be in English, and since it must be an accurate copy of the instrument recorded, the instrument must be in English. The record of a transla- tion of an instrument would not be in compliance with the statutes requiring the recording of such instrument. Even if both an original instrument in a foreign language and a trans- lation of it were recorded, a person examining the record would have no assurance that the translation was accurate.
State Highway — Opening — City or Tow^n — Water Works — Service Pipes.
The water commissioners of a town are not authorized, without the permission of the Massachusetts Highway Commission, as, required by R. L., c. 47, § 11, to open a State highway for the purpose of laying service pipes therein, under an act providing that, in the construction and maintenance of suitable water works for the use of such town, they may "lay and maintain aqueducts, con- duits, pipes and other works under and over . . . public and other waj^s" in such town.
MMsachusetts ^^^ ^^^^^ letter of July 2 you state that the water commis- oimmfssion. sioncrs of the town of Plainville recently opened a State high- Juiy 12. way in that town for the purpose of laying service pipes, and
that the opening so effected was without permission from the
Massachusetts Highway Commission.
Such action is expressly forbidden by the provisions of R. L.,
c. 47, § 11, that: —
No opening shall be made in any such highway nor shall any structure be placed thereon . . . except in accordance with a permit from the commission, which shall exercise complete and permanent control over such highways.
DANA MALONE, ATTORNEY-GENERAL. 243
It appears, however, that the water commissioners of the own of Plainville make the claim that they are not required to ecure a permit from the Massachusetts Highway Commission n accordance with the provision above quoted, for the reason hat chapter 404 of the Acts of 1908, entitled "An Act to au- horize the town of Plainville to supply itself and its inhabit- ants with water," provides in section 2 that the town, for the lurpose of constructing and maintaining complete and effective v'ater works, "may construct wells and reservoirs and establish •umping works, and may construct, lay and maintain aque- ucts, conduits, pipes and other works under and over any ind, water courses, railroads, railways and public or other /ays, and along such ways in the town of Plainville, in such Qanner as not unnecessarily to obstruct the same; and for the lurpose of constructing, laying, maintaining, operating and re- lairing such conduits, pipes and other works, and for all proper mrposes of this act, said town may dig up or raise and em- •ank any such lands, highways or other ways in such manner s to cause the least hindrance to public travel on such ways."
I am of opinion that the water commissioners of the town of 'lainville may not rely upon the provisions of the latter statute 0 justify their action in opening a State highway within that own; and that in digging up a State highway, unless au- horized so to do, such statute cannot serve as justification in he premises.
244
OPINIONS OF THE ATTORNEY-GENERAL.
To the Board of Appeal.
1909 August 11.
Taxation — Excise Tax on Express Business on any Rail- road, Railway, Steamboat or Vessel in the Common- wealth — Computation — Gross Earnings within the State — Value of Capital, Bonds and Unfunded Debt — Deductions — Stocks, Securities and Real Estate outside Commonwealth not used in Express Business.
In St. 1907, c. 586, as amended by St. 1908, c. 194, and St. 1908, c. 615, imposing an excise tax upon all persons, companies, partnerships or associations doing an express business upon any railroad, railway, steamboat or vessel in the Commonwealth, and providing, in section 5, that such tax shall be "upon the fair cash value of such proportion of his or its capital, bonds and unfunded debt ... as the gross earnings of the said person, company, partnership or association within the state, bear to his or its total gross earnings," the words, "gross earnings . . . within the state" include earnings within the State from interstate business, and such earnings should be considered in determin- ing the amount of such tax.
In determining the amount "of the capital, bonds and unfunded debt" of a person, company, partnership or association doing an express business on any rail- road, railway, steamboat or vessel within the Commonwealth for the purpose of computing the excise tax provided for under the statutes above cited, property consisting of stocks, securities and real estate outside the Common- wealth and not used in the express business should be deducted from the total value of the capital, bonds and unfunded debt.
The Board of Appeal, constituted under R. L., c. 14, § 65, has requested my opinion upon certain questions relative to the computation of the tax upon the Adams Express Company and the American Express Company imposed by St. 1907, c. 586, as amended by St. 1908, c. 194, and St. 1908, c. 615.
This statute in section 5 requires the Tax Commissioner to levy an excise tax upon every person, company, partnership or association doing an express business on any railroad, railway, steamboat or vessel in the Commonwealth, —
upon the fair casli value of such proportion of his or its capital, bonds and unfunded debt . . ., after deducting therefrom the value of the real estate, machinery, merchandise and other property belonging to the person, company, partnership or association, within the common- wealth and subject to taxation in the various cities and towiis thereof, together with the vahie of securities owned by him or it and not hable to local taxation, as the gi-oss earnings of the said person, company, partner- ship or association within the state, bear to his or its total gross earnings.
DANA MALONE, ATTORNEY-GENERAL. 245
The first question submitted is as to the meaning of the words 'gross earnings . . . within the state," as used in the above ection.
The tax imposed by the statute is similar in its nature to the ax imposed in this Commonwealth upon telegraph companies, md held to be constitutional in Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530 (see also Massachusetts v. Western Jnion Telegraph Co., 141 U. S. 40), and to the taxes on express •ompanies imposed in some other jurisdictions and sustained in he Adams Express Cases, 165 U. S. 194; 165 U. S. 255; 166 J. S. 171; 166 U. S. 185. See also Fargo v. Hart, 193 U. S. :90. It is an excise under the Massachusetts Constitution neasured by the value of property within the Commonwealth lot otherwise taxed. It is an attempt to reach the additional •alue "gained by the property being part of a going concern." The local tax and the excise "together fairly may be called a commutation tax." See Holmes, J., in Galveston, Harrisburg, '.tc., Railroad v. Texas, 210 U. S. 217, 226.
In the value of the property which is the measure of the tax, he Legislature, in my opinion, intended to include the in- creased value due to the use of such property in interstate com- nerce. The tax "is intended to reach the intangible value due :o . . . the organic relation of the property in the State to the lA^hole system." See Holmes, J., in Fargo v. Hart, 193 U. S. 190, 499.
This can constitutionally be done. Adams Express Cases, nipra; Fargo v. Hart, supra; Galveston, Harrisburg, etc., Rail- 'oad V. Texas, supra.
The value of property within the State, including the in- creased value due to its use in interstate commerce, may be ietermined by reference to gross earnings within the State, in- cluding earnings from interstate business. In my opinion, the vvords "gross earnings . . . within the state," as used in the present statute, include earnings within the State from inter- state business, and such earnings should be considered in de- termining the amount of the excise.
The statute, unlike many statutes imposing similar taxes,
246 OPINIONS OF THE ATTORNEY-GENERAL.
does not provide a method of determining the part of the earn- ings from interstate business to be treated as earnings within ■the State. Cf. Maine v. Grand Trunk Railway Co., 142 U. S. 217; Wisconsin & Michigan Railroad Co. v. Powers, 191 U. S. 379; Galveston, Harrisburg, etc., Railroad v. Texas, supra. Such earnings are, therefore, to be determined as a matter of fact without the aid of prima facie rules. I shall not attempt to advise as to the method which should be followed in making this determination. Unless it has been made to appear to the Board of Appeal, as it has not to me, that the amount of the gross earnings within the State, used by the Tax Commissioner in the computation of the tax, includes a larger part of the earnings from interstate business than, all things considered, can fairly be apportioned to this State, the Board should not revise the determination of the Tax Commissioner upon this point.
The second inquiry is as to whether, in determining the fair cash value of the proportion of the capital, bonds and un- funded debt of the companies upon which the tax is levied, property consisting of stocks, securities and real estate outside the Commonwealth not used in the express business should be deducted from the total value of capital, bonds and unfunded debt.
In my opinion this deduction should be made. Fargo v. Hart, supra, is decisive upon the point that such property can- not be used as the measure of a tax such as is here in question. See also Delaware, Lackawanna & Western Railroad Co. v. Penn- syhania, 198 U. S. 341. The reason is clear. The tax is, in effect, a tax on the property by which it is measured. A State cannot tax property outside its jurisdiction. The more diffi- cult question is whether such property should be deducted in computing the tax, or whether the statute should be regarded as unconstitutional as an attempt to tax property not within the jurisdiction of the Commonwealth. In my judgment, the former is the better view. Though the requirement of such a deduction may not be read into the statute except for good reason {American Glue Co. v. Commonwealth, 195 Mass. 528,
DANA MALONE, ATTORNEY-GENERAL. 247
130), there is, in the fact that otherwise federal constitutional equirements would be infringed, a sufficient reason for implying .uthority to make such deduction. Such a construction is in .ccord with the established principle stated in Pittsburg, etc., Railway Co. v. Backus, 154 U. S. 421, 428: —
It is not to be assumed that a State contemplates the taxation of any iroperty outside its territorial limits, or that its statutes are intended 0 operate otherwise than upon persons and property within the State, t is not necessary that every section of a tax act should in terms declare he scope of its territorial operation. Before any statute will be held to titend to reach outside property, the language expressing such intention Qust be clear.
The conclusion which I have reached as to the second inquiry s in accord with an opinion given by my predecessor to the Tax I"ommissioner under date of Dec. 1, 1905.
Taxation — Exemption — Woodland used for Educational Purposes — Forestry.
4. tract of woodland, acqmred and used by Harvard University for the purpose of instruction in forestry, is owned and occupied for educational purposes, and is therefore exempt from taxation, under the provisions of R. L., c. 12, § 5, cl. 3, which exempt from taxation real estate owned and occupied by literary, charitable and scientific institutions for the purpose for which such institutions are incorporated.
You have requested my opinion as to whether a tract of commiSfoner. ibout seventeen hundred acres of woodland, situated in the August i3. town of Petersham, acquired by Harvard University for the teaching of forestry, is subject to taxation.
The woodland in question is taxable unless it is exempt be- cause owned and occupied by Harvard University, or its officers, tor the purposes for which the university was incorporated. R. L., c. 12, § 5, cl. 3. I am of opinion that it is exempt on this ground. No question is made but that the teaching of forestry is within the broad educational purposes for which Harvard University was incorporated. That woodland is as
248 OPINIONS OF THE ATTORNEY-GENERAL.
necessary for the teaching of forestry as is a farm for the teach- ing of agriculture, is apparent. As a farm is exempt from tax- ation if used in the teaching of agriculture {ML Hermon Boys' School V. Gill, 145 Mass. 139), so, in my judgment, woodland used in the teaching of forestry is likewise exempt from taxa- tion. To claim this exemption, of course, the officers of the university must, in their use of the woodland, be acting in good faith and reasonably. Emerson v. Trustees of the Milton Academy, 185 Mass. 414, 415. So far as disclosed by the facts submitted to me and agreed to by the assessors of the town and by the representative of the university, there is nothing to in- dicate that the use of the woodland in question is not in good faith and reasonable. It does not appear that the area is un- reasonably large. It appears that the sales of lumber from the woodland are considerable in amount, but this fact does not deprive the university of its exemption, if such sales are merely incidental to the main use of the woodland as a place and means of instruction. From the statement submitted, it is to be inferred that such sales are merely incidental to such main use. A part of the tract (whether of the seventeen hundred acres situated in the town of Petersham or of three hundred in the adjoining town of Phillipston is not stated) is poor farming land, on which are a dwelling house which is occupied and used by students, two barns and a few other buildings. This dwell- ing house is used as a dormitory and dining room and for lec- ture rooms; the resident superintendent lives in one wing of it. It is, by reason of this use, exempt from taxation. See Harvard College v. Cambridge, 175 Mass. 145. The barns and other buildings are exempt from taxation, since they are used for pur- poses incidental to instruction in forestry. See Mt. Hermon Boys' School v. Gill, supra; Emerson v. Trustees of Milton Academy, suyra. The farming land not occupied by buildings is not used for purposes inconsistent with the general use of the woodland. It would be difficult to acquire a large area of woodland without some open. Under authority of Wesleyan Academy v. Wilhraham, 99 Mass. 599, 604, it is exempt from taxation.
DANA MALONE, ATTORNEY-GENERAL. 249
Taxation — Business Corporation — Deductions — Stocks and b0nt)s subject to taxation if owned by a natural Person Resident in this Commonwealth.
n the assessment of the franchise tax upon a business corporation under St. 1903, c. 437, or St. 1909, c. 49, part III, the value of stocks and bonds which would be subject to taxation if owned by a natural person in this Common- wealth should not be deducted from the value of the corporate franchise.
You have requested mv opinion as to the method of deter- To th^ Tax
Commissioner.
nining the amount upon which the franchise tax upon domestic October 22 msiness corporations is to be assessed.
By St. 1903, c. 437, § 72, codified as St. 1909, c. 490, part .II, § 41, cl. 3, it is provided that there shall be deducted from ;he value of the shares constituting the capital stock of a do- nestic business corporation the value "of its property situated n another state or country and subject to taxation therein," ind "of securities which if owned by a natural person resident n this commonwealth would not be liable to taxation." In 5t. 1903, but not in the codification, it is further provided that 'from such value there shall not be deducted securities which, f owned by a natural person resident in this commonwealth, (vould be liable to taxation."
Your inquiry is whether there should be deducted from the value of the shares constituting the capital stock of such a cor- poration the value of "certain stocks and bonds, all of which *\'ould be subject to taxation if owned by a natural person resi- dent in this Commonwealth, which stocks and bonds upon the first day of May are situated in New York and Illinois."
In determining the amount upon which the franchise tax upon a business corporation is to be assessed, no deductions are to be made other than those expressly authorized by statute. Com- momvealth v. New England Slate & Tile Co., 13 Allen, 391; Cf. Commomcealth v. Hamilton Mfg. Co., 12 Allen, 298; Manufac- tnrers' Insurance Co. v. Loud, 99 Mass. 146; Home Insurance Co. V. New York, 134 U. S. 594.
In view of the express provision of St. 1903, it is clear that under that law the value of the stocks and bonds in question
250
OPINIONS OF THE ATTORNEY-GENERAL.
should not be deducted from the value of the shares constitut- ing the capital stock of the corporation. The provisions of the codification, which took effect on the thirtieth day after June 12, 1909 (R. L., c. 8, § 1), are to be construed as continuations of existing statutes (section 26). Such codification is not to be presumed to have changed the law unless the intention clearly appears. Wright v. Dresser, 140 Mass. 147, 149. The commis- sion which reported the codification expressly disclaim any in- tention to change the law (report of the Commission on Taxa- tion, .January, 1908, pp. 12, 79), and the same construction can reasonably be given to the law as codified as was given to the earlier law. It is, therefore, unnecessary for me to express an opinion as to which law governs, since, in my judgment, under either law the value of the stocks and bonds referred to is not to be deducted.
To the Bank Commissioner.
1909 October 26.
Corporation — Name or Title containing the Words "Bank" or "Banking."
The provisions of St. 1909, c. 491, § 4. amending St. 1908, c. 590, § 16, that no person, partnership, corporation or association, except co-operative banks, savings banks and trust companies incorporated under the laws of this Commonwealth, and such foreign banking corporations as were doing business therein and were subject to the examination or supervision of the Bank Commissioner on June 1, 1906, should thereafter "transact business under any name or title which contains the word 'bank' or 'banking,' as descriptive of said business," are applicable to a corporation organized prior to the passage of such act.
I have your letter of the 19th inst., in which you request my opinion as to whether or not it is in violation of chapter 491 of the Acts of 1909 for any corporation chartered by this Com- monwealth prior to the passage of said act to continue to use the words "bank" or "banking" in connection with its busi- ness. Your reference is to section 4 of the act cited, which amends St. 1908, c. 590, § 16, by adding at the end thereof the words: "Nor shall any person, partnership, corporation or asso- ciation except co-operative banks incorporated under the laws of this commonwealth and corporations described in the first sentence of this section hereafter transact business under any
DANA MALONE, ATTORNEY-GENERAL. 251
ime or title which contains the words 'bank' or 'banking,' as ?scriptive of said business." The corporations described in the •st sentence of the section are " savings banks and trust com- mies incorporated under the laws of this commonwealth," and such foreign banking corporations as were doing business in is commonwealth and were subject to examination or super- sion of the commissioner on June first, nineteen hundred and v.
This statute is in the nature of a police regulation for the pre- •ntion of fraud. Its purpose is evidently to prevent persons, irtnerships, corporations and associations other than those ider the supervision of the Bank Commissioner from holding iCmselves out as banks or banking institutions. It is in- nded that any one dealing with a corporation which transacts isiness under a name or title containing the words "bank" • "banking" shall have the assurance that he is safeguarded such dealing by provisions of law and by State supervision, his purpose wholly fails if the prohibition in the statute under )nsideration be construed as not applying to corporations rmed prior to its enactment.
The language of the statute, apart from other considerations, dicates that the Legislature meant that the prohibition should jply to corporations, whenever formed. If the Legislature had tended it to apply only to corporations formed after its enact- ent, it could readily have said so. If this had been the inten- on, the prohibition, in the case of corporations, would natu- .lly have been against incorporation rather than against the ansaction of business under such name or title. The prohi- tion, as applied to corporations, is the same as applied to arsons, yet no one would suggest that the prohibition as to arsons applied only to those commencing business after the issage of the act.
The history of the statute, so far as it is of any assistance, ads to the same conclusion. The statute was passed at the stance of the Bank Commissioner, who recommended legisla- on prohibiting the doing of business under such name or title by organizations not incorporated under banking or trust
252 OPINIONS OF THE ATTORNEY-GENERAL.
company laws of this Commonwealth." There is here no sug- gestion of a limitation to corporations afterward formed.
The hardship caused by the statute, construed in this man- ner, is not unreasonably severe. A change in the name of a corporation may readily be effected. See St. 1903, c. 437, § 40. Of course the name has a value which would be destroyed by a change, but to require a change in name imposes no greater hardship upon the corporation than upon a person, partnership or association. At any rate, the hardship is no greater than the Legislature may properly impose under a police regulation. No constitutional rights are invaded.
These considerations lead me to the conclusion which I have stated, — that the prohibition in the statute applies to the cor- porations not expressly excepted therefrom, regardless of the time of formation.
Insane Peeson — Guardian — Petition to sell Real Estate — Notice.
Under the provisions of St. 1909, c. 504, § 102, that upon a petition of a guardian for license to sell property of a spendthrift or of an insane person a license to sell shall not be granted to such guardian unless "seven days' notice of the petition therefor has been given to the overseers of the poor of the city or town in which the spendthrift resides, or to the state board of insanity in the case of an insane person," such notice, in the case of an insane person, is to be given only to the State Board of Insanity.
R. L., c. 145, § 41, providing that a conservator shall give bond as required of guardians of insane persons, and making all provisions of law relative to the management, sale or mortgage of the property of insane persons applicable to such conservator, is not repealed by St. 1909, c. 504, §§ 99-102, inclusive, providing for the appointment of guardians for insane persons and spend- thrifts, and is to be construed in connection with such statutes.
To^t^hejtate You havc rcqucsted my opinion as to the construction of St.
^"'%^- 1909, c. 504, §§ 99, 100, 101 and 102, with reference to the fol-
Novemb_er 1. j^^^^j^^^ questions : —
First: must notice of guardian's petition for license to sell property of an insane person be given only to the overseers of the poor of the city or town in which said insane person resides, or to the said overseers and to the State Board of Insanity or only to the State Board of Insanity ?
Second: what effect does chapter 504, Acts of 1909, sections 99 to
DANA MALONE, ATTORNEY-GENERAL. 253
)2 inclusive, have upon Revised Laws, chapter 145, section 41, in re- ird to notices to be sent to the Board of Insanity ?
The sections of the statute referred to are as follows: —
Section 99. If the relatives or friends of an insane person, or the
ayor and aldermen of a city or the selectmen of a town in which he is 1 inhabitant or resident, or the state board of insanity, apply to the •obate court to have a guardian appointed for him, the court shall luse not less than seven days' notice of the time and place appointed r the hearing to be given to him and to the state board of insanity, ;cept that the court may, for cause shown, direct that a shorter notice ? given to liim and to the said board; and if after a hearing the court ids that he is incapable of taking care of himself, it shall appoint a lardian of his person and estate. A copy of such appointment shall be :nt by mail by the register to the said board. If in the opinion of the )urt additional medical testimony as to the mental condition of the person Jeged to be insane is desirable, it may require such person to submit to camination, and may appoint one or more physicians, expert in insanity, ) examine such person and report their conclusions to the court. Reason- ble expense incurred in such examination, shall be paid out of the estate t such person, or by the county, as may be determined by the court.
Section 100. Upon the petition of the mayor of a city, the select- ion of a town, the overseers of the poor of a city or town, the state board f insanity, or other person in interest, the court may, if it finds that the 'elfare of a minor, insane person, or spendthrift requires the immediate ppointment of a temporary guardian of his person and estate, appoint
temporary guardian of such minor, insane person, or spendthrift, with r without notice, and may in like manner remove or discharge him or snninate the trust. A temporary guardian may proceed and continue 1 the execution of his duties, notwithstanding an appeal from the de- ree appointing him, until it is otherwise ordered by the supreme judicial ourt, or until the appointment of a peraianent guardian, or until the rust is otherwise legally terminated.
Section 101. No final account or discharge of a guardian of an in- ane person shall be allowed under the provisions of chapter one hundred nd forty-five of the Revised Laws, unless at least seven days' notice of he petition therefor has been given to the state board of insanity.
Section 102. A Hcense to sell shall not be granted to the guardian 'f a spendthrift who resides in this commonwealth, or of an insane person, inless seven days' notice of the petition therefor has been given to the iverseers of the poor of the city or town in which the spendthrift resides, r to the state board of insanity in the case of an insane person. Such lotice may be served upon any one of said overseers or board.
254 OPINIONS OF THE ATTOENEY-GENERAL.
In my opinion, the statute, in section 102, provides that notice of a guardian's petition to sell property of an insane per- son who resides in this Commonwealth shall be given only to the State Board of Insanity. The provision as to notice to the overseers of the poor applies only to the case of a spendthrift. The language of the act seems to me clear, and the construction indicated is in accord with the general purpose of the act, to bring all matters relative to the care and support of the insane into the hands of State officials.
In reply to the second question, my opinion is that since R. L., c. 145, § 41, has been neither repealed nor amended, it is to be construed as still in force and to be read with the statute above quoted. R. L., c. 145, § 41, is as follows: —
Such conservator shall give bond as is required of guardians of in- sane persons, and all provisions of law relative to the management, sale or mortgage of the property of insane persons shall apply to such con- servator.
Since St. 1909, c. 504, contains the present provisions of law relative to the management, sale or mortgage of the property of insane persons, the provisions of sections 99-102 are applicable to the cases of persons for whose property conservators have been appointed, and notice of petitions for the disposition of property in the hands of conservators must be given to the State Board of Insanity.
While, however, this is in my opinion clearly the effect of the statutes as they stand, it would seem that the situation may have been the result of an oversight upon the part of the Legis- lature. St. 1909, c. 504, expressly provides that in the case of a spendthrift the guardian's ntttice shall be given to the over- seers of the poor of the city or town where the spendthrift re- sides. The position of an aged person whose property is in the hands of a conservator is more nearly analogous to that of a spendthrift than that of an insane person, and as a matter of administration it would seem that the law should be so amended as to require the conservator to give notice of his petitions to the overseers of the poor rather than to the State Board of Insanity.
DANA MALONE, ATTORNEY-GENERAL. 255
i'oREiGN Corporation — Usual Place of Business — Com- missioner OF Corporations.
"he words "usual place of business," in R. L., c. 126, § 4, which provides that every foreign corporation which has a usual place of business within the Commonwealth, or is engaged therein, permanently or temporarilj', in the construction, erection, alteration or repair of a building, bridge, railroad, railway or structure of any kind, shall, before doing business in this Common- wealth, in writing appoint the Commissioner of Corporations and his successor in office to be its true and lawful attorney, include a foreign corporation which has executive offices within the Commonwealth where a considerable part of the management of the business of the company is carried on.
You have requested my opinion as to whether certain for- To the Com- ign pubHc service corporations for which the Stone & Webster Corporations. lanagement Association acts as general manager may be said November 5. 0 have usual places of business in this Commonwealth, and hus become subject to the provisions of chapter 126 of the levised Laws.
A foreign public service corporation is subject to the provi- ions of this chapter if it "has a usual place of business in this commonwealth" (section 4). The language quoted is the ame as that used in R. L., c. 14, § 50, and in St. 1903, c. 437, i58.
Under date of Oct. 26, 1908, I advised you that "the phrase usual place of business' used in the Revised Laws is broad nough to include corporations which had within this Common- i^ealth offices used solely for directors' meetings or transfer 'ffices . . .", and that these words in section 58 of the business orporation act "are to be construed as they were to be con- trued under the earlier act." In this opinion I was interpret- ng the law relative to mining companies. I am, however, of •pinion that the words "usual place of business" are to be. onstrued in the same way in the section now under consider- tion as in the sections of the Revised Laws dealing with min- ng companies and in the statute dealing with business corpo- ations. Li my opinion, if the companies in question actually lave executive offices here, at which offices a considerable part 'f the management of the companies' business is carried on, hey have usual places of business here within the meaning of
256
OPINIONS OF THE ATTORNEY-GENERAL.
chapter 126 of the Revised Laws. Cf. People v. Horn Silver Mining Co., 105 N. Y. 76.
I do not attempt to pass upon the specific cases submitted, since each case must be determined upon its special facts.
To the Bank Commissioner.
1909 November 11.
Savings Banks — Authorized Investments — First Mort- gages OF Real Estate — Notes secured by a Mort- gage OF Real Estate to a Trust Company.
Notes secured by a mortgage of a tract of land with buildings thereon to a trust company as trustee, as security for an issue of notes made by the owners of the property, of which the notes in question are a part, are not a legal investment for savings banks, since they do not constitute an investment in "first mortgages of real estate," within the provisions of St. 1908, c. 590, § 68, cl. 1, defining authorized investments for savings banks in this Com- monwealth.
You ask my opinion as to whether it is lawful for a savings bank to invest in notes secured by a mortgage of a tract of land with buildings thereon to a trust company, as trustee, as secur- ity for an issue of notes made by the owners of the property of which the notes referred to are a part. These notes amount on the whole to less than 60 per cent, of the value of the real estate subject to the mortgage.
St. 1908, c. 590, § 68, cl. 1, which defines authorized invest- ments for savings banks, is as follows: —
First. In first mortgages of real estate located in this commonwealth not to exceed sixty per cent of the value of such real estate; but not more than seventy per cent of the whole amount of deposits shall be so in- vested. If a loan is made on unimproved and unproductive real estate, the amount loaned thereon shall not exceed forty per cent of the value of such real estate. No loan on mortgage shall be made except upon wi-itten application showing the date, name of applicant, amount asked for and security offered, nor except upon the report of not less than two members of the board of investment who shall certify on said application, according to their best judgment, the value of the premises to be mort- gaged; and such application shall be filed and preserved with the records of the corporation.
At the expiration of every such loan made for a period of five or more
DANA M ALONE, ATTORNEY-GENERAL. 257
ears not less than two members of the board of investment shall certify I wTiting, according to their best judgment, the value of the premises lortgaged; and the premises shall be revalued in the same manner at iterv-als of not more than five years so long as they are mortgaged to :eh corporation. Such report shall be filed and preserved with the icords of the corporation. If such loan is made on demand or for a lorter period than five years, a revaluation in the manner above pre- iribed shall be made of the premises mortgaged not later than five years "ter the date of such loan and at least every fifth year thereafter. If at le time a revaluation is made the amount loaned is in excess of sixty per ■nt, or in the case of unimproved and unproductive real estate in excess ■ forty per cent, of the value of the premises mortgaged, a sufficient I duction in the amount of the loan shall be required, as promptly as I ay be practicable, to bring the loan within sixty per cent, or in the case ' unimproved and unproductive real estate within forty per cent, of the ilue of said premises.
Savings banks cannot invest in any notes of the kind de- mhed unless such investment is authorized by clause 1 of 16 above section, which authorizes investments in "first mort- ages of real estate located in this commonwealth, not to ex- 3ed sixty per cent, of the value of such real estate." The uestion is, therefore, whether the investment described is an ivestment in "first mortgages of real estate."
A similar question was considered by Attorney-General
Lnowlton. (1 Op. Atty.-Gen. 434.) St. 1894, c. 317, § 21,
'as then in force. It did not differ materially, so far as this
aestion is concerned, from the present statute. In that opinion
le then Attorney-General said : —
I am of opinion, however, that the purchase of bonds by a savings ank, which are a portion of a larger number secured by a mortgage ven by the obligor to a third person as trustee for the benefit of bond- elders, is not a "loan upon mortgage," within the meaning of the stat- ues relating to savings banks. . . . "Loans upon first mortgages of real ■tate," as that expression is used in the statute, are loans made to an dividual or a corporation upon the security of a mortgage given by the )rrower to the savings bank. Certain rights attach to the holder of a ortgage which do not appertain to the holder of a bond secured by a ortgage in the hands of a trustee. It was, in my opinion, the inten- 3n of the statute to authorize savings banks to loan upon mortgages only
258 OPINIONS OF THE ATTORNEY-GENERAL.
when the full and unrestricted rights of mortgagees are conferred upon the bank, to the end that the entire control and custody should be in the hands of the bank. (Page 435.)
In an opinion of Attorney-General Parker (2 Op. Atty.- Gen. 593) the same provision of statute, then R. L., c. 113, § 26, cl. 1, was under consideration, and it was pointed out that in the case of an assignment of a mortgage to a savings banlc the section contemplates one "which should have effect to vest in the latter (that is, the savings bank) the full and unrestricted rights of a mortgagee in the premises."
The general propositions stated in these opinions were clearly correct, and no reason appears for now departing from them.
It is true that certain of the specific objections existing in the case considered in the opinion of the Attorney-General first cited (1 Op. Atty.-Gen. 434) have been done away with. The trustee cannot require indemnity before foreclosing; he has no prior lien on the property for his charges; there is no express exemption from responsibility for the negligence of agents and the trustee has not discretion as to whether or not to foreclose. It is to be noticed, however, that any holder of a note may re- quest foreclosure. The result is that some other person holding a note secured by the mortgage in question might insist upon foreclosure, although the bank did not wish it, and the bank could not prevent such foreclosure. The bank has not, then, entire control and custody as it would have in the case of a mortgage held by it directly.
It is not clear to me that it is contemplated to comply with the provisions of the first clause of section 68, which provides that "no loan on mortgage shall be made except upon written application showing the date, name of applicant, amount asked for and security offered, nor except upon the report of not less than two members of the board of investment who shall certify on said application, according to their best judgment, the value of the premises to be mortgaged." If this is not done, clearly the loan would not be one authorized by the statute. It is further provided in the second paragraph of the first clause of said section that at the expiration of every such loan there must
DANA MALONE, ATTORNEY-GENERAL. 259
)e a revaluation by the board of investment at intervals of not nore than five years so long as they are mortgaged; and also hat "If at the time a revaluation is made the amount loaned 3 in excess of sixty per cent of the value of the premises mort- ;aged, a sufficient reduction in the amount of the loan shall be equired, as promptly as may be practicable, to bring the loan ,ithin sixty per cent, of the value of the premises."
The deed of trust, a copy of which is submitted to me, lakes no provision for such a contingency; and from a careful onsideration of the statute I am of opinion that such a loan ;'as not contemplated by the Legislature, but that the words so long as they are mortgaged to such corporation" mean a irect mortgage to the savings bank itself and not to a trustee.
am, therefore, of opinion that such an investment in the case escribed is not an investment in "first mortgages of real es- ate." As pointed out in the opinion first quoted, such forms f loans are becoming more frequent, and it may be that the /Cgislature will authorize savings banks to purchase them; but ntil such time comes I am of opinion that savings banks can- ot legally invest therein.
Trust Company — Reserve — Time Deposit.
n agreement in -wTiting, payable thirty days after demand or notice, is a time deposit payable at a stated time, within the meaning of St. 1908, c. 520, § 8, which provides that "every trust company . . . shall at all times have on hand as a reserve an amount equal to at least fifteen per cent of the aggregate amount of its deposits, exclusive of savings deposits and of time deposits represented by certificates or agreements in writing and payable only at a stated time."
You request my opinion as to whether an agreement in writ- J°j^^i^fo°n''er ig, payable thirty days after demand or notice, is a time de- j^.^vem'ber 12. osit payable at a stated time, and therefore exempt from the iserve requirements.
St. 1908, c. 520, § 8, provides that: —
Every trust company doing business within the commonwealth shall '■> all times have on hand as a reserve an amount equal to at least fifteen
200 OPINIONS OF THE ATTORNEY-GENERAL.
per cent of the aggregate amount of its deposits, exclusive of savings deposits and of time deposits represented by certificates or agreements in writing and payable only at a stated time, but whenever such time de- posits may be withdrawn within thirty days they shall be subject to the reserve requirements of this act; and every trust company doing business in the city of Boston shall at all times have on hand as a reserve an amount equal to at least twenty per cent of the aggregate amount of its deposits computed in the same manner.
In my opinion, this law requiring a reserve does not apply to deposits of the character described in the question. The de- posits in question cannot be withdrawn within thirty days, but only thirty days after demand or notice, and therefore come within the terms of the statute which exempts deposits payable at a stated time from the reserve requirement.
Official Bond — Surety — Married Woman
Principal.
^YIFE OF
Under the provisions of R. L., c. 153, § 2, that "a married woman may make con- tracts, oral and written, sealed and unsealed, in the same manner as if she were sole, except that she shall not be authorized hereby to make contracts with her husband," a married woman may, as surety, sign the official bond of her husband.
In answer to your communication, dated November 17, in which you inquire whether or not a wife is eligible as surety
To the Controller of County Accounts.
November 23. upon the official boud of her husband, I beg to refer you to the provisions of R. L., c. 153, § 2, which section is as follows: —
A married woman may make contracts, oral and ■wi'itten, sealed and unsealed, in the same manner as if she were sole, except that she shall not be authorized hereby to make contracts with her husband.
This statute "enables a married woman to 'make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole,' and does not require that the consideration of her contracts should enure to her own benefit. The provision that nothing in this act shall authorize her 'to convey property to, or make contracts with, her husband,' is evidently not in-
I DANA MALONE, ATTORNEY-GENERAL. 261
[tended to impose any new restriction on her capacity, but merely to affirm the rule of the common law, so far as her husband is the other party to her grant or contract; and does not prevent both of them from binding themselves by a joint promise to a third person, within the authority conferred by the statute. Parker v. Kane, 4 Allen, 346," {Major v. Holmes, 124 Mass. 108.) See also Binney v. Globe National Bank, 150 Mass. 574.
It follows, therefore, that a married woman may, as surety, , sign the official bond of her husband.
[ndustrial Education — Independent Industrial Schools — State Board of Education — Public Schools — Cities and Towns.
The provisions in sections 2 and 3 of chapter 505 of the Acts of 1906 for the establish- ment of independent industrial schools, for the maintenance of which the Commonwealth has in part to reimburse the municipalities by which such schools are established, do not create distinct classes of schools after establish- ment, but rather prescribe methods by which such schools may be created, and contemplate industrial schools, the establishment of which has been initiated and superintended by the Commission on Industrial Education, or by its successor, the State Board of Education, or has been provided for by the municipality in which such school is located.
An independent industrial school, so established, must be in addition to, and not a part of, the public school system of the city or town where such school is located.
You request my opinion upon the question whether or not To^thejtate schools which had been maintained in certain cities as evening Education. schools, in which industrial education had to some extent been Januarys. introduced, and which were abandoned by such cities and then established by the Commission on Industrial Education as in- dependent industrial schools, to be carried on in co-operation with the respective cities, are independent industrial schools within the meaning of St. 1906, c. 505, and acts in amendment thereof or addition thereto.
St. 1906, c. 505, was inartificially drawn in the first instance, and has been frequently amended without apparent effort to bring such amendments into harmony with the existing pro-
262 OPINIONS OF THE ATTORNEY-GENERAL.
visions of law. It seems to me, however, that chapter 505 con- templated that the commission should initiate and superintend the establishment of, and the municipalities should provide, in- dustrial schools which should be independent of and in addition to the public or common schools required by law to be estab- lished and maintained by the various cities and towns of the Commonwealth, and that the commission should have a general superintendence over the whole field of industrial education, and should have full power with respect to the disbursement of all money, whether appropriated by a municipality or by the Com- monwealth, for industrial education. See St. 1908, c. 572.
St. 1909, c. 540, amended section 5 of chapter 505 of the Acts of 1906, which now reads as follows: —
Upon certification by the board of education to the auditor of the commonwealth that a city, to^vn or district, either by moneys raised by local taxation or by moneys donated or contributed, has maintained an independent industrial school, the commonweahh, in order to aid in the maintenance of such schools, shall pay annually from the treasury to such cities, towns or districts a smu equal to one half the sum raised by local taxation for this purpose: provided, that no payment to any city or town shall be made except by special appropriation by the legislature.
Chapter 457 of the Acts of 1909 provides for the consoHda- tion of the Board of Education and the Commission on Indus- trial Education, and there appear to be no provisions in the statute which affect the powers of the Board of Education, as successor to the Commission on Industrial Education, with re- spect to that branch of its work.
After some consideration of the subject, I am of opinion that the independent industrial schools for the maintenance of which the Commonwealth is in part to reimburse the municipalities by which such schools are established, are industrial schools the establishment of which has been initiated and superintended by the commission in the first instance, or by its successor, the State Board of Education, or has been provided for by the municipality in which it is located; and that the provisions of sections 2 and 3 of said chapter 505, with respect to initiating
DANA MALONE, ATTORNEY-GENERAL. 263
the establishment of and providing for such schools, do not refer to distinct classes of schools after establishment, but to the methods by which independent schools may be set in motion. I am further of opinion that our legislation clearly contemplates a course of instruction and a class of schools in addition to the public school system as established by law in this Commonwealth, and that an independent industrial school cannot be a part of the public school system of any munici- pahty. What was apparently done by the Commission on In- dustrial Education was to arrange with a municipality that a part of the public school system, in which more or less industrial education had been introduced, should be abandoned by the city and taken over by the commission as an independent indus- trial school. In no case does it appear that an independent school was established in addition to the educational facilities already maintained in any municipality, but, on the contrary, such municipality discontinued a branch of its public school system, which was then, with some changes in courses of in- struction, taken over as an independent school. This, in my opinion, was not the intent of the statute, since in no case was an independent school established. The only effect of the ac- tion so taken was to transfer the control and the responsibility for the maintenance of an existing school or educational institu- tion; and where the statute contemplated opportunities in the direction of industrial studies in addition to the educational opportunities offered by the public schools, it results that the industrial courses are offered more or less at the expense of the instruction in the public schools, as such. I am of opinion that this course was not what the statute contemplated when it authorized the commission to initiate and superintend the establishment of industrial schools. If schools such as you describe are independent schools within the meaning of the statute, the cities and towns by which they are maintained may, of course, be reimbursed, and this reimbursement would extend to section 4 of chapter 572 of the Acts of 1908. If they are not, and from the facts presented to me they appear not to be, no reimbursement can be had.
264
OPINIONS OF THE ATTORNEY-GENERAL.
To the Bank Commissioner
1910 January 18.
Savings Bank — National Bank or Trust Company — Con- nected Offices — Elevator or Dumb-waiter.
A connection between a savings bank having an office upon the second floor of a building and a national bank or trust company upon the floor below by means of a small lift or dumb-waiter, is forbidden by the provision of St. 1908, c. 590, § 19, that "no savings bank shall occupy the same office or suite of offices with a national bank, trust company or other bank of discount, nor any office directly connected by means of doors or other openings in partitions with the office or suite of offices used or occupied by any such national bank, trust company or other bank of discount."
You ask my opinion as to whether section 19 of chapter 590 of the Acts of 1908 is violated where there is a connection be- tween a savings bank, having an office on the second floor of a building, and a national bank or trust company underneath, occupying the first floor, by means of a dumb-waiter or small lift, sufficiently large for the transportation of money or securi- ties by an opening through the floor, but not large enough for the use of a person.
St. 1908, c. 590, § 19, is as follows: —
No savings bank shall occupy the same office or suite of offices with a national bank, trust company or other bank of discount, nor any office directly connected by means of doors or other openings in partitions with the office or suite of offices used or occupied ty any such national bank, trust company or other bank of discount. Any such corporation \'io- lating the provisions of this section shall be punished by a fine of not more than five hundred dollars.
The law provides that a savings bank shall not have an office directly connected by means of doors or other openings in parti- tions with the office occupied by a national bank or trust com- pany.
I am of opinion that in the case described by you there is such a connection, and that the law was intended to, and does, prohibit such connection. I do not see how such an opening can be made in the ceiling of the room, so as to connect the two institutions, if it cannot be made in the sides. I think the word "partition" is broad enough to cover both cases, and such connection is therefore prohibited by the statute.
DANA MALONE, ATTORNEY-GENERAL. 265
iuiLDixG Regulations — City of Boston — Boston State
Hospital.
he Boston State Hospital, of which the custody, control and management are vested, under the provisions of St. 1909, c. 504, §§ 14-23, in the State Board of Insanity and the trustees of said institution, is not subject to the inspection and regulation of the officials of the city of Boston with relation to gas, electric Hghting and plumbing therein.
You have requested mv opinion as to whether the Boston To the state
, "^ . . . Board of
tate Hospital is subject to the regulation and inspection of the ^'^^'^q'jq^- flficials of the city of Boston with relation to gas, electric light- January 27. ig and plumbing connected wuth the institution.
By the provisions of St. 1909, c. 504, §§ 14-23, the custody, lanagement and control of the Boston State Hospital are en- rusted to the State Board of Insanity and to the trustees of the ospital. Upon the State Board of Insanity are also imposed he duties of supervision, of approving plans and specifications or buildings, of making frequent visitations and careful inspec- ions.
Since the Commonwealth has taken upon itself the entire ustody and management of the property in question, and has •y the provisions of the statute referred to regulated the con- luct of its officers and agents in that custody and management, fc must be considered to have retained these matters within its pecial and peculiar jurisdiction.
The statutes providing for regulation and inspection by offi- ials of the city of Boston constitute a delegation of the police )Ower of the Commonwealth, and that delegation is to be trictly construed. It is a presumption of law^ that the Legis- ature, in delegating that power, had primarily in view the egulation of the conduct of the citizen and not that of the IJommon wealth. Therefore, while the provisions of the statutes vith reference to regulation and inspection by city officials are general in their terms, and do not expressly exclude from their cope any property within the limits of the city, there is an mplied exception of the property owned and controlled by the Tommonwealth itself, and retained, through the provisions of he special statute cited, under its own jurisdiction. See 1 Op.
266 OPINIONS OF THE ATTORNEY-GENERAL.
Atty.-Gen. 290; Teasdale v. Newell, etc., Construction Co., 192 Mass. 440.
I am therefore of opinion that your question is to be answered in the negative.
Taxation — Property omitted from Annual Assessment — Removal of Taxpayer from the Commonwealth.
Under the provisions of St. 1909, c. 490, part I, § 85, an assessment of taxes upon property omitted from the annual assessment may be made, although the person assessed has removed from the Commonwealth prior to December 15.
commi^foner. You requcst HIV Opinion as to whether the assessment Febma°ry7. of taxes authorized by St. 1909, c. 490, part I., § 85, upon property omitted from the annual assessment, may be made if the person assessed has removed from the Commonwealth prior to December 15. I assume, of course, that such person was a resident of the Commonwealth on the preceding 1st of May.
The statute is as follows : —
If the real or personal estate of a person, to an amount not less than one hundred dollars and liable to taxation, has been omitted from the annual assessment of taxes in a city or town,, the assessors shall between the fifteenth and twentieth days of December next ensuing assess such person for such estate. The taxes so assessed shall be entered on the tax list of the collector who shall collect and pay over the same. Such additional assessments shall not render the tax of such city or tovm invaUd although its amount, in consequence thereof, shall exceed the amount authorized by law to be raised.
In my opinion, the assessment may be made. It is made as of May 1, and "is not to be considered as a new and inde- pendent assessment, but simply as the correction of a mistake in the regular taxation; . . . the tax of a tax-payer for the year is but a single tax, and a single assessment." Noyes v. Hale, 137 Mass. 266, 271; Harwood v. North Brookfield, 130 Mass. 561. I find no jurisdictional objection to the correction of a tax assessment in the fact of a change of residence by the person assessed.
DANA M ALONE, ATTORNEY-GENERAL. 267
Constitutional Law — Constitution of the United States — Amendment — Income Tax.
proposed amendment to the Constitution of the United States, vesting in Congress the "power to lay and collect taxes on incomes, from whatever source derived, ■nathout apportionment among the several States, and without regard to any census or enumeration," was intended to empower Congress to lay and collect taxes on incomes without the restriction imposed by the Constitution of the United States in article I., § 8, that "all duties, imposts and excises shall be uniform throughout the United States," and § 9, that "no capitation, or other direct tax, shall be laid, unless in proportion to the census or enumera- tion hereinbefore directed to be taken."
I am in receipt of a communication from you, dated Feb- committee on lary 7, in which, by direction of the committee on federal Refat^lns. •lations, you submit certain questions with relation to a February 9. lint resolution of the Congress of the United States proposing 1 amendment to the Constitution of the United States, which nendment is now before that committee, and is as follows : —
Article XVI. The Congi'ess shall have power to lay and collect ixes on incomes, from whatever source derived, without apportionment nong the several States, and without regard to any census or enumera- on.
I Your communication states that the committee on federal 'lations requires my opinion upon the "interpretation of the hraseology of the proposed amendment," and also requests me to furnish an outline of the probable effect and operation of leh tax, if levied, especially with reference to the existing laws I this Commonwealth on the subject." I am advised that the recise point to which your inquiry is directed is to so much of le proposed amendment as purports to authorize Congress to Ly and collect taxes on incomes "without apportionment mong the several States, and without regard to any census or numeration."
The Constitution of the United States, in article I., section 8, mong other provisions, empowers Congress "to lay and collect ixes, duties, imposts and excises," but imposes a limitation lat "all duties, imposts and excises shall be uniform through- ut the United States." Bv section 9 of the same article it is
26S OPINIONS OF THE ATTORNEY-GENERAL.
provided that "No capitation, or other direct tax, shall be laid, unless in proportion to the census or enumeration herein- before directed to be taken." By section 2 of article I. it is provided that : —
Representatives and direct taxes shall be apportioned among the several states which may be included Tvnthin this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.
Taxes levied by Congress, therefore, if direct taxes, must be levied in proportion to the census or enumeration provided for in section 2 of article I. of the Constitution of the United States; and if indirect taxes, they must be subject to the quali- fication imposed by section 8 of the same article, — that they shall be uniform throughout the United States. The distinc- tion between the two classes of taxes is well expressed in the case of Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, where, in an opinion by Chief Justice Fuller (page 557), it is stated : —
Thus, in the matter of taxation, the Constitution recognizes the two great classes of direct and indirect taxes, and lays down two rules by which their imposition must be governed, namely : the rule of apportion- ment as to direct taxes; and the rule of unifonnity as to duties, imposts and excises.
The first question to be considered is whether a tax on the rents or income of real estate is a direct tax witliin the meaning of the Constitution. . . . but a tax upon property holders in respect of their estates, whether real or personal, or of the income yielded by such estate, and the payment of which cannot be avoided, are direct taxes.
The court, in this case, decided that a tax levied by Congress upon the income from real estate, like a tax upon the realty itself, was a direct tax, and that the statute under considera-
DANA MALONE, ATTORNEY-GENERAL. 209
ion (28 Stat. 509, c. 349), so far as it purported to levy a tax ipon income so derived, was unconstitutional.
Upon a rehearing of the same case (158 U. S. 601), the court leld that the tax laid by the statute above referred to, upon ncome derived from real estate and from invested personal )roperty, was invalid, for the reason that it constituted a direct ax, which could not be levied without apportionment among he several States, as provided in the Constitution.
The purpose of the proposed amendment to the Constitution s, therefore, as it expressly states, to empower Congress to lay md collect taxes on incomes, without the restriction imposed Dy the constitutional provisions above stated, — that there )hall be an apportionment among the several States, according to their inhabitants, to be determined by an enumeration made by the United States.
The effect and operation of an income tax laid by Congress under authority of the proposed amendment, if adopted, must be matter of pure conjecture, and must remain such until the passage of an act upon which an opinion may be based. It may be said, however, that the only effect which such an act could have with reference to the existing laws of this Common- wealth on the subject, would be the imposition of an added burden of taxation upon those persons w^ho fell within its pro- visions.
Hours of Labor — Mercantile Establishment — Employ- ment OF Women — Manager of Department.
St. 1909, c. 514, § 47, which provides that " no child and no woman shall be employed in laboring in a mercantile establishment more than fifty-eight hours in a week," does not prohibit the employment in such establishment of a woman as the manager of a large department, entrusted with the control and super- vision of numerous persons employed therein, and whose duties require the exercise of judgment and discretion, and do not necessarily involve either manual labor or labor performed within fixed hours.
In your letter dated February 3 you request my opinion on To.t^he^^ ^^^ the question whether or not section 47 of chapter 514 of the ■^?^^','5^|"^„^,Vce. Acts of 1909, which, so far as material, provides that "no child Febru^y h. and no woman shall be employed in laboring in a mercantile
270 OPINIONS OF THE ATTORNEY-GENERAL.
establishment more than fifty-eight hours in a week," extends to and includes "a woman employed by a mercantile establish- ment as the manager and superintendent of a special depart- ment in such establishment, said woman being the buyer for such department, and having, at times, as many as four hun- dred employees under her direction, consisting of men, women and minors; she having no special hours for arriving at or leav- ing such establishment, the times necessary for her to be present being determined by herself."
I have no hesitation in advising you that the statute to which you refer is not applicable to a woman w^ho is a manager and superintendent of a large department, entrusted with the con- trol and supervision of numerous persons employed therein, and whose duties require the exercise of judgment and discretion, and do not necessarily involve either manual labor or labor per- formed within any fixed and definite hours.
Civil Service — State Boards, Departments or Commis- sions — Authority to require Special Qualifications IN Applicants for Appointment qr Employment.
No State board, department or commission is authorized to require of applicants for appointment or employment qualifications other than those required by the civil service law and rules, and the Civil Service Commission in its dis- cretion may or may not accede to a requisition calling for special qualifications.
J°Repr"°"'^ I have the honor to acknowledge the receipt of an order ^"'f^Vo*"'" adopted by the House of Representatives, which reads as fol-
February21. l^^^^. _
Ordered, That the Attorney-General inform the House of Represen- tatives what boards, departments and commissions, if any, of the Com- monwealth can specially require of applicants for positions under them qualifications other than required by the Civil Service Commission, and to what extent they may go in those quaUfications; also, to what extent the Civil Service Commission are bound to accede to requisitions made for certain qualifications by boards, departments and commissions in making up or advertising notices of examinations for applicants for positions so qualified by departments, boards and commissions.
I
DANA MALONE, ATTORNEY-GENERAL. 271
In reply thereto I would inform the Honorable House of Rep- sentatives that section 6 of chapter 19 of the Revised Laws ovides : —
The commissioners shall from time to time prepare rules regulating e selection of persons to fill appointive positions in the government of e conunonwealth and of the several cities thereof and the selection of rsons to be employed as laborers or otherwise in the service of the mmonwealth and said several cities, and altering, rescinding, amending adding to the rules now estabhshed. Such rules may be of general Umited application and shall take effect only when approved by the vemor and comicil.
In pursuance of the authority given the Civil Service Com- ission by said section, said commission has adopted certain des. The rule relating to special qualifications, under which 16 commission acts, is Rule 22, section 1: —
Whenever any appointing officer shall make requisition not expressly illing for women, the commission shall certify from such list as it shall 3em suitable only the names of all veterans who have passed the examina- on for the position sought, in the order of the respective standing of ! ich veterans upon the eligible list, and the position, if filled, must be '< lied by the appointment and employment of some veteran so certified, ad in case there is no such veteran upon the fist, then the commission lall certify, from such list as it shall deem suitable, the names of the iree persons most ehgible. If in any requisition a request shall be made )r the certification of persons possessing a special qualification or experi- ace, the commission may in its discretion include in the list of names irtified the name of one or more persons possessing such special ualification or experience.
I am informed that the practice of the Civil Service Commis- lon is as follows: when a requisition is received from an ap- ointing official to fill a vacancy, the commission certifies from ach list as it deems most suitable, first certifying the names f all veterans, and if there are no veterans, next the names of he three persons standing highest on the list, who have signi- ed a willingness to accept such position at the rate of pay tated in the requisition. If the appointing official states in his
272 OPINIONS OF THE ATTORNEY-GENERAL.
requisition that he desires persons possessing special qualifica- tions, the commission acts upon his request, either granting or refusing it, after consideration of the reasonableness of the re- quest, the public needs in general, the special needs of the vacant position, the respective rights of the other eligibles on the list, and the question whether such request appears to be an attempt to reach some particular person on the list, in eva- sion of the intent of the civil service law. If appointing officials ask for more extreme special qualifications than the commission considers reasonable, or than it is advised by its experts are reasonable, it prepares its examinations irrespective of such requests. Examination papers, when upon technical subjects, are prepared by experts, or persons technically or specially fitted by training or experience to perform the task. Thus, civil engineering papers are prepared largely by civil engineers out- side of the oflfice of the commission; visitors' papers are prepared by persons specially trained in charitable work; papers for architectural positions are prepared by architects.
In reply to the specific questions asked by the Honorable House of Representatives, as to what boards, departments and commissions, if any, of the Commonwealth, can specially re- quire of applicants for positions under them qualifications other than required by the Civil Service Commission, and to what extent they may go in those qualifications, I would say that no boards, departments and commissions of the Commonwealth can specially require of applicants qualifications other than those required by the civil service law and rules; and as to what extent the Civil Service Commission is bound to accede to requisitions made for certain qualifications by boards, depart- ments and commissions in making up or advertising notices of examinations for applicants for positions so qualified by depart- ments, boards and commissions, I would inform the Honorable House of Representatives that the civil service law and rules do not in any case bind or make it compulsory upon the Civil Service Commission to accede to such requisitions. The law and rules give the commission the right and authority to so accede at its discretion; and in the exercise of its discretion it
I DANA M ALONE, ATTORNEY-GENERAL. 273
lould be governed by the needs of the pubHc service, as pre- ?nted by the appointing officials or by others specially fitted ) advise with it in the matter.
ONSTITUTIONAL LaW — GrEAT PoND — RiGHT OF LEGISLA- TURE TO DETERMINE HEIGHT AT WHICH ^YATER SHALL BE MAINTAINED.
is within the constitutional power of the Legislature to pass an act establishing a point upon the shores of a great pond below which the waters therein shall not be drawn by persons entitled to the use thereof, if adequate provision is made for compensation if the condition thus established interferes with vested rights of riparian owners, or affects prescriptive or granted rights to lower the waters of such ponds.
You inquire, on behalf of the joint standing committee on To the Com- mittee on arbors and public lands, whether or not a proposed act, en- pybH°''Land3
1910
tied "x\n Act relative to establishing a low-water mark in ake Attitash in the towns of Amesbury and ]Merrimac," would 5 legal and constitutional. This bill provides, in section 1, that: — ■
The low-water mark in Lake Attitash, situated in the towns of Ames- ary and Merrimac, is hereby estabUshed at the low-water mark where le lake originally discharged into Powow river at the flume at Tuxbrny's 3nd; the low- water mark being the bed of the brook at the bridge, so illed, the original discharge of the lake into Tuxbury's pond.
In sections 2 and 3 it is in substance provided that the Board :' Harbor and Land Commissioners shall fix the elevation of ich low-water mark with reference to some suitable base, and uly record the same; and that such Board, subject to the ap- roval of the Governor and Council, shall take, by eminent do- lain or otherwise, such land at the outlet of the lake as may be ecessary, and shall construct a suitable dam to prevent the rawing of the water below the mark so estabhshed.
Section 4 provides, in part, that: —
The commonwealth shall pay all damages to property sustained by 'ny pQrson or corporation by the taking of any land, right of way, water ght or easement or by any other thing done under the authority of this act.
March 10.
274 OPINIONS OF THE ATTORNEY-GENEEAL.
and due provision is made for the determination of such damage and for the vesting of title of the property so taken in the Com' monwealth.
By section 6 it is provided that all expenses incurred by said Board under the provisions of this act shall be reimbursed to the Commonwealth by the towns of Amesbury and Merrimac, the proportion to be determined apparently by the Board of Harbor and Land Commissioners.
Your letter further states that the passage of this act is op posed by the Hamilton Woolen Company, located in the town of Amesbury, on the ground that it is the owner and assignee of a grant made by said town of the right to draw the waters of Lake Attitash below the level to be established, and that it has acquired further rights in the premises by prescription.
The form of the proposed act appears to have been copied from chapter 539 of the Acts of 1909, which was an act to eS' tablish a low-water mark in Lake Quannapowitt in the town of Wakefield. The determination of the precise location of the "low-water mark" upon the shores of a great pond, in its or- dinary signification, is ordinarily a question of fact as to where upon such shores may be found the point below which the waters are not accustomed to fall. See Paine v. Woods, 108 IMass. 160, 171; Wcderman v. Johnson, 13 Pick. 261, 265; West Roxhiiry v. Stoddard, 7 Allen, 158, 167; East Boston Co. v. Com- monwealth, 203 Mass. 68.
It appears, however, from section 3 of the proposed act, that its real purpose is to establish a point upon the shores of Lake Attitash below which the waters therein shall not be drawn by persons entitled to the use thereof. This, in my opinion, is within the power of the Legislature. See Attorney-General v. Jamaica Pond Aqueduct, 133 Mass. 361. It follows, therefore, that the passage of an act establishing the height at which the water in a great pond must be permanently maintained, so far as concerns the use thereof, which is, in my opinion, the true purpose and eftect of the act under consideration, is within the constitutional power of the Legislature, if adequate provision is made for compensation if the condition thus established inter
DANA MALONE, ATTORNEY-GENERAL. 275
res with vested rights of riparian owners, or affects prescrip- /e or granted rights to draw lower the waters of the pond. ■e Attorney-General v. Revere Copper Co., 152 Mass. 444; R. S., I 119, § 12; St. 1867, c. 275. In this instance the proposed act idoubtedly contains a clause which provides compensation for t mage occasioned by anything which may be done under its ovisions, which would apply if private rights in land or water ;hts were affected by the establishment of the so-called "low- iter mark."
I desire to point out, however, that if, as I am advised, the amilton Woolen Company claims to have prescriptive or other ^hts to draw the water of Lake Attitash below the low-w^ater ark now to be designated, the Commonwealth would undoubt- ly be required to engage in extensive litigation for the deter- ination of such claim, which, if established, might require the wns of Amesbury and Merrimac to reimburse to the Common- salth a very considerable sum as damages for the interference erewith. In view of the fact that the existing rights of the amilton Woolen Company, or of an\^ other persons who may aim the right to use the waters of Lake Attitash, might be itermined by an information brought by the Attorney-Gen- al, and any unwarranted use thereof be terminated (Attorney- jneral v. Jamaica Pond Aqueduct, supra; Attorney-General v. evere Copper Co., supra), it should be carefully considered hether or not it is expedient to pass statutes like St. 1909, 539, or the act now proposed, which provide compensation for images, without ascertaining to what extent the Common- ealth or the several towns interested therein may be called )on to reimburse persons or corporations for damages to prop- ty sustained by anything done under the authority of their i'ovisions.
276
OPINIONS OF THE ATTORNEY-GENERAL.
To the House Committee on Bills in the Third Read- ing.
1910 April 11.
Constitutional Law — Constitution of the Unitei States — Discrimination — Proposed Act forbiddin( Women under Twenty-one to enter Chinese Res taurants.
A bill providing that "it shall be unlawful for any woman under twenty-one year of age to enter a Chinese restaurant or hotel or to be served with food o drink therein," and that "it shall be unlawful for the proprietor of any sue hotel or restaurant to admit any woman under twenty-one years of ag thereto or to serve her with food or drink therein," and further providin that "violations of this act shall be punished by fine or imprisonment, the discretion of the court," is in effect a discrimination against the Chines by reason of their nationality, and therefore, if enacted, would be in \aolatio of the Fourteenth Amendment to the Constitution of the United States, an therefore unconstitutional and void, i
I have to acknowledge the receipt of a communication i: which you state that the committee on bills in the third reac ing desires my opinion upon the constitutionality of Hous Bill 1372, entitled, "An Act relative to the admission of wome: under twenty-one to certain restaurants." This act provide; in section 1, that: —
It shall be unlawful for any woman under twenty-one years of age t enter a Chinese restaurant or hotel, or to be served with food or drin therein; and it shall be unlawful for the proprietor of any such hotel restaurant to admit any woman under twenty-one years of age thereto or to serve her with food or drink therein.
Section 2 is as follows : —
Violation of this act shall be punished by fine or imprisonment, at th' discretion of the court.
The proposed act does not define what constitutes " a Chines restaurant or hotel," but I assume that by the words quoted i was intended to designate a restaurant or hotel maintained b. Chinese, in which food is prepared and served in the Chines manner, and that it does not extend to or include restaurants oi hotels kept by others than Chinese.
' See Opinion of the Justices, 207 Mass. 601.
DANA MALONE, ATTORNEY-GENERAL. 277
If the proposed act is to be sustained, it must be as an exer- se of the police power, which includes all matters "which feet the lives, limbs, health, comfort and welfare of all in their arsons and their property" {Covimoniuealth v. Bearse, 132 ' [ass. 542) ; and of these matters the Legislature must, in ! le first instance, be the judge. As was said by Chief istice Shaw, in Commonwealth v. Alger, 7 Cush. 52, at page )2: —
Having once come to the conclusion that a case exists, in which it is mpetent for the Legislature to make a law on the subject, it is for ' em, under a high sense of duty to the public and to individuals, with a cred regard to the rights of property and all other private rights, to ake such reasonable regulations as they may judge necessarj' to protect iblic and private rights, and to impose no larger restraints upon the ie and enjoyment of private property than are in their judgment strictly ;cessary to preserve and protect the rights of others.
The exercise of this power is, however, subject to certain limi- tions. The purpose for which it is invoked must fall within lose above enumerated, and the means and manner of its ap- ication must be reasonable, and must affect equally all persons id property under the same circumstances and conditions, he Legislature may not, under the guise of the police power, lact statutes which operate for or against any particular per- •ns within the same general class and under the same circum- ances. Darbier v. Connolly, 113 U. S. 27; Soon Tling v. \rowley, 113 U. S. 703. Legislation which discriminates against ly person in respect of his freedom of action or enjoyment of 'operty is in violation of that part of the Fourteenth Amend- ent of the Constitution of the United States which pro- des: —
' )r shall any state deprive any person of life, lil^ert)', or property, without 10 process of law, nor deny to any person within its jurisdiction the |ual protection of the laws.
The protection afforded by this provision extends to all per- •ns within the Commonwealth, and may be enforced by ap-
278 OPINIONS OF THE ATTORNEY-GENEKAL.
propriate legislation of Congress. As was stated in Yick Wo v. Hopkins, 118 U. S. 356, at page 369: —
These provisions are universal in their application to all persons within the ten-itorial jurisdiction, without regard to any differences of race, of color or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted by § 1977 of the Revised Statutes, that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shaU be subject to like punishment, paina, penalties, taxes, licenses, and exactions oi every kind, and to no other."
If the proposed act results in an unfair or unreasonable limi- tation upon the rights and privileges of Chinese w'ithin tht Commonwealth to hold property and to do business therein, oi unjustly discriminates against them as a class, it is in contra- vention of the amendment above quoted, and is, therefore, void
To justify the bill now before me, it would be necessary t( show that restaurants or hotels kept by Chinese may, as f class, be distinguished from all other restaurants or hotels, witl respect to the danger to women under the age specified whi may resort to them for food or entertainment. It is not enougl that in individual cases restaurants or hotels kept by Chinese by reason of the manner in which they were maintained, hav( been found to be dangerous to the morals of such women, aiK therefore, to the public; for without doubt as much may b( said of some hotels or restaurants kept by others than Chinese The statutes already require innholders and common victualer: to secure a license before transacting business, and in individua cases this license may be withheld if the public good does no require its issuance. R. L., c. 102, §§ 1, 2. In order to justif: a restriction applicable alone to restaurants or hotels kept b; Chinese, it must appear that such restaurants or hotels, as ; class, by reason of being maintained by Chinese, are more dan gerous to the morals of the public than all other restaurants o hotels. If such is not the fact, the proposed act in operatioi
I
' DANA M ALONE, ATTORNEY-GENERAL. 279
Ind effect discriminates against the Chinese as such, and is un- DHstitutional. There are no facts before me from which such distinction may properly be drawn; and I am constrained to le opinion that the proposed bill, in effect, discriminates gainst the Chinese by reason of their nationality, and there- )re, if passed, would be unconstitutional and void.
iremen's Relief Fund — Injuries suffered in the Per- formance OF Duty — Drill or Exercise of Horses.
. L., c. 32, § 73, as amended by St. 1903, c. 253, creating a firemen's relief fund, to be used "for the relief of firemen . . . who may be injured in the perform- ance of their duty at a fire or in going to or returning from the same," does not authorize the use of such fund for the relief of firemen who may be injured while taking part in drill, or while exercising the horses of the department by order of the superior officers.
You have asked my opinion as to whether section 73 of chap- To the Com-
„..._ Ill 1 r>-oPi missioners of
iT 32 01 the Revised Laws, as amended bv chapter 2o3 or the the Firemen's
' . " . Relief Fund.
cts of 1903, may properly be interpreted to authorize pay- ^ i^w^^ lents from the firemen's relief fund for the relief of firemen who re injured, not in the performance of their duty at a fire or in Ding to or returning from the same, but in the performance of leir duty at a fire drill, which has been instituted for the pur- ose of increasing the efficiency of the fire department, or in xercising the horses of the department, or in doing similar lings by order of the superior officers of the department. The statute provides as follows : —
Such fund shall be used for the relief of firemen, whether members :'. said association or not, who may be injured in the performance of their uty at a fire or in going to or returning from the same, and for the relief ' the widows and children of firemen killed in the perfonnance of such uty, in the manner and to the amount determined by a board of five ersons, . . .
In my opinion, the statute may not be so interpreted. Its nguage is clear, and the scope of its provisions is definitely mited by that language.
280 OPINIONS OF THE ATTORNEY-GENERAL.
Firemen who are injured while taking part in a drill, or while exercising the horses of the department by order of the superior officers, may undoubtedly be considered as having been injured in the performance of their duties as firemen; but the statute, as it stands, makes provision for the relief of those only who are injured in the performance of certain specified duties, namely, duties performed at a fire or in going to or returning from the same.
Constitutional Law' — Taxation — Boston Railroad Hold- ing Company — Excise — Bonds — Exemption from Local Taxation.
A bill which establishes a special and distinct method for the taxation of the Boston Railroad Holding Company, incorporated under the provisions of St. 1909, c. 519, for the sole purpose of acquiring and holding the capital stock, bonds and other evidences of indebtedness of the Boston & Maine Railroad, and of voting upon the stock and collecting and receiving dividends and interest upon the stock, bonds and other evidences so acquired and held, by imposing an excise tax upon such corporation and exempting its bonds from local taxation, is objectionable upon constitutional grounds; first, because the franchise to acquire and hold stock, bonds and other securities, exercised by such corporation, is not to be distinguished from the franchises of other cor- porations which have been or may be organized for similar purposes, and the imposition of such excise upon a single corporation, therefore, would not be reasonable, within the meaning of article IV., section I., chapter I., part the second of the Constitution of Massachusetts, which authorizes the Legislature to impose and le^'y^ reasonable duties and excises; and second, because there is no valid distinction between the bonds of such corporation and the bonds of any other business corporation which may hold securities of like character, and the exemption from taxation of such bonds would have an effect to render the general tax on property throughout the Commonwealth unequal and disproportionate, and so be obnoxious to the Constitution; and the creation of such exemption, therefore, would exceed the constitutional authority of the Legislature "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," as defined in the Constitution of Massachusetts, part the second, chapter I., section I., article IV.
To the House J am in receipt of vour communication of April -i, which is as
ivOmmittee on x » i- ^
^^^7o follows: —
Committee on Rules. 1910 April 22.
The committee on rules on the part of the House has decided to submit to you the enclosed bills. They wish your opinion upon their constitu- tionality. If these particular bills are not constitutional, can you suggest such modification, carrying out the purpose of the bills, as will render them constitutional, either by making the bills general, or in any other way?
DANA MALONE, ATTORNEY-GENERAL. 281
The bills to which you refer are alternative drafts of an act elating to the taxation of the Boston Railroad Holding Com- any. This company was incorporated under the provisions of it. 1909, c. 519, "for the sole purpose of acquiring and holding he whole or any part of the capital stock, bonds and other evi- ences of indebtedness of the Boston and Maine Railroad, and f voting upon all certificates of stock so acquired and held, and f receiving and collecting dividends and interest upon said tock, bonds and other evidences of indebtedness." (Section 1.)
The corporation so organized was expressly made subject to ubstantially all the provisions of St. 1903, c. 437, known as the business Corporation Law, and acts in amendment thereof, so ar as applicable to domestic corporations, including the provi- ions therein which relate to taxation, which now appear in St. 909, c. 490, part III. The act of incorporation above cited mposes certain limitations upon the powers of the Boston Rail- oad Holding Company which do not apply generally to busi- less corporations. Such are the provisions that a majority of he officers and directors of the Boston Railroad Holding Com- )any shall be citizens of Massachusetts, that the principal office md place of business of such corporation shall be in the city of Boston, and that all meetings of the directors shall be held in his Commonwealth (section 2); that the stock of the Boston & Maine Railroad which may be acquired by the Boston Railroad lolding Company shall not be sold by it without express au- hority from the Legislature, and that the bonds, notes or )ther evidences of indebtedness of such railroad acquired by uch company shall not be disposed of without the approval of he Board of Railroad Commissioners (section 3); and that the ;hares of stock of such company shall not be sold or transferred nitil they have been guaranteed by a railroad corporation in- •orporated under the laws of the Commonwealth (section 4). rhe Boston Railroad Holding Company is therefore a corpora- :ion organized under special law for a specific and limited pur- pose, subject to substantially all the provisions of the Business corporation Law and to certain further express restrictions; and :he single purpose for which it was organized is doubtless one
282 OPINIONS OF THE ATTORNEY-GENERAL.
for which, apart from the prohibition in St. 1907, c. 585, § 1, which in my opinion, does not affect the question herein under consideration, a corporation might have been organized .under the Business Corporation Law.
The bills submitted to me make special provision for the tcixa- tion of the Boston Railroad Holding Company by name, and cannot apply to any other corporation now existing or which may hereafter be created. I quote them in full.
One draft is as follows : —
Section 1. The Boston Railroad Holding Company shall annually between the first and tenth days of April make a return to the tax com- missioner, under oath of its treasurer, setting forth as of the first day of April of the year in which the return is made: —
First, the total authorized amount of the capital stock of said Boston Railroad Holding Company; the amount issued and outstanding and the amomit then paid thereon; the classes, if any, into which it is divided; the par value and number of its shares; the market value of the shares of its stock and of each class of its stock, if there are two or more classes;
Second, the total amount outstanding of the bonds, notes and other evidences of indebtedness of said Boston Railroad Holding Company;
Third, the market value of all the shares of stock in other corporations held by said Boston Railroad Holding Company which, if owned by a natural person resident in tliis commonwealth, would not be liable to taxation.
Sec;TI0N 2. The tax commissioner shall estimate from the returns or otherwise the fair cash value of all of the shai-es constituting the capital stock of said Boston Railroad Holding Company. To such value there shall be added the total amount outstanding of the bonds, notes and other evidences of indebtedness of said Boston Railroad Holding Company, and from the sum thereof there shall be deducted the market value of securities o^\Tled by it which if owned by a natural person resident in this commonwealth would not ])e liable to taxation. The remainder shall be taken for the purposes of this act as the true value of the corporate franchise of the said Boston Raihoad Holding Company.
Section 3. The said Boston Railroad Holding Company shall annually pay an excise upon the value of its corporate franchise as detennined above at the rate determined in the manner provided in section forty- three of part HI. of chapter four hundred and ninety of the acts of the year nineteen hundred and nine; provided, however, that the total amount of tax to be paid by the said Boston Railroad Holding Company in any year shall amount to not less than one-tenth of one per cent of the fair
DANA MALONE, ATTORNEY-GENERAL. 2S3
■ cash value of its capital stock at the time of said assessment as found by the tax commissioner.
Section 4. No taxes shall be assessed in a city or town upon the shares in the capital stock, bonds or other evidences of indebtedness of the said Boston Railroad Holding Company for state, county, city, town or other purposes, for any year for which the said Boston Railroad Hold- ing Company shall pay to the treasurer and receiver general the excise upon its corporate franchise as herein provided.
Section 5. This act shall take effect upon its passage.
The other draft, which contains a more detailed method of valuation, is as follows: —
Section 1. The Boston Railroad Holding Company shall annually between the first and tenth days of April make a return to the tax com- missioner under oath of its treasurer setting forth as of the first day of April of the year in which the return is made : —
First, The total authorized amount of the capital stock of the corpora- tion; the amount issued and outstanding and the amount then paid thereon; the classes, if any, into which it is divided; the par value and number of its shares; the market value of the shares of its stock or of each class of its stock if there are two or more classes.
Second, The total amount of the bonds, notes and other evidences of indebtedness of said Boston Railroad Holding Company and a state- ment of the market value of such bonds, notes or other evidences of in- debtedness upon the said first day of April.
Tliird, A statement in such detail as the tax commissioner may re- quire of the market value as of said first day of April of all the shares of stock of other corporations owned by said Boston Railroad Holding Com- pany wliich shares if owned by a natural person resident in this common- wealth would not be liable to taxation.
Section 2. The tax commissioner shall ascertain from the returns or otherwise the true market value of the shares of said Boston Railroad Holding Company and shall estimate therefrom the fair cash value of all of said shares constituting its capital stock on the preceding fu'st day of April. The tax commissioner shall also ascertain from the returns or otherwise the true market value of all the bonds, notes and other evi- dences of indebtedness of said Boston Railroad Holding Company and shall estimate therefrom the fair cash value of all of such bonds, notes and other evidences of indebtedness as of the preceding first daj^ of April. The sum of such fair cash value of the shares of stock and such fair cash value of the bonds, notes and other evidences of indebtedness of the Boston Railroad Holding Company shall for the purposes of this act be taken as
284 OPINIONS OF THE ATTORNEY-GENERAL.
the true value of its corporate franchise. From the value of the cor- porate franchise determined as above there shall be deducted the value as found b}^ the tax commissioner of the securities o\vned by the Boston Railroad Holding Company which securities if owned by a natural person resident in this Commonwealth would not be liable to taxation. The value remaining after making the deduction herein provided shall be taken for the purposes of this act as the true value of the corporate excess of the Boston Railroad Holding Compan5^
Section 3. Said Boston Railroad Holding Company shall annually pay to the treasurer and receiver-general an excise upon the value of its corporate excess as determined above at the rate provided for in section forty-three of part III. of chapter four hundred and ninety of the acts of the year nineteen hundred and nine; provided, however, that the total amount of the tax to be paid by said Boston Railroad Holding Company in any year shall amount to not less than one-tenth of one per cent of the value of the corporate franchise determined as is herein provided.
Section 4. No taxes shall he assessed in a city or town for State, county or town purposes upon the shares in the capital stock or upon the bonds, notes and other evidences of indebtedness of said Boston Railroad Holding Company in any year in which said company shall pay to the treasurer and receiver-general the tax provided for by this act.
Section 5. This act shall take effect upon its passage.
The material difference between the two bills is that the mini- mum limit of taxation under the second is one-tenth of one per cent, of the value of the corporate franchise, which is the sum of the fair cash value of the shares of stock and the fair cash value of the bonds, notes and other evidences of indebtedness of the corporation. The minimum limit in the first bill is one- tenth of one per cent, of the fair cash value of the capital stock alone. It would result from this difference that if the Boston Railroad Holding Company should issue large amounts of bonds, the minimum limit of taxation under the second bill would be much higher than under the bill first quoted; and this difference is important, for the reason that it is unlikely, under either bill, that the tax will be in excess of the minimum therein estab- lished.
It is to be observed that neither bill provides a method for the collection of the tax imposed; but I assume that this defect will be remedied, and that the question may be considered as if
I
DANA MALONE, ATTORNEY-GENERAL. 285
due provision therefor had been made. It is to be further ob- served that no express provision is made in either bill for the repeal of existing provisions of law relating to taxation to which the Boston Railroad Holding Company is now subject. In the event that either bill was enacted in its present form, the court would doubtless hold, however, that the taxes were not cumu- lative, and that the existing provisions of law were repealed by implication. See Metropolitan Life Insurance Co. v. Common- ■ nlth, 198 Mass. 466.
The proposed act, under either draft, will accomplish two re- sults: first, it will impose an excise upon the Boston Railroad Holding Company; and second, it will exempt from local taxa- tion the bonds issued by that company. The question sub- mitted involves a consideration of the constitutionality both of the excise and of the exemption from local taxation. I con- sider first the ciuestion of the constitutionality of the excise.
The burden sought to be estabhshed by the proposed act is clearly not proportional, and does not fall within the constitu- tional requirement that taxes be "proportional and reasonable." Constitution of Massachusetts, part the second, chapter I., sec- tion I., article IV. It can be sustained, if at all, only under the provision of the Constitution authorizing the Legislature to " im- pose and levy reasonable duties and excises." Constitution of Massachusetts, part the second, chapter I., section I., article IV. The power to impose an excise upon corporations under this provision is well settled. Portland Bank v. Apthorp, 12 Mass. 252; Commonicealth v. Hamilton Manufacturing Co., 12 Allen, 298; Minot V. Winthrop, 162 Mass. 113, 120. The only limitation upon the power of the Legislature in the premises is that the excise must be "reasonable". As was said in Connecticut In- surance Co. V. Commonwealth, 133 Mass. 161, at page 163: —
The power to determine what caUings, franchises or privileges, or, to use the langiiage of the Constitution, " commodities," shall be subjected to an excise, and the amount of such excise, belongs exclusively to the Legislature. The provision that it must be "reasonable " was not designed to give to the judicial department the right to revise the decisions of the Legislature as to the policy and expediency of an excise. Great latitude
286 OPINIONS OF THE ATTORNEY-GENERAL.
of discretion is given to the Legislature in determining not only what "commodity" shall be subjected to excise, but also the amount of the excise and the standard or measure to be adopted as the foundation of the proposed excise. The court cannot declare a tax or excise illegal and void, as being unreasonable, unless it is unequal, or plainly and grossly oppressive, and contrary to common right.
In my opinion, the basis of computation provided for in the draft submitted to me furnishes a fair and proper method of valuing the franchise. See Connecticut Insurance Co. v. Com- viomcealth, supra, p. 166; see also Commonwealth v. Berkshire Life Insurance Co., 98 Mass. 25. And, apart from the question of inequahty, it would seem to be unobjectionable.
The test of equality, which must be satisfied in order that an excise may be reasonable, is that it " operates alike upon all cor- porations or associations which exercise the franchise or function which is intended to be taxed." Connecticut Insurance Co. v. Commomcealth, supra. As was said by Chief Justice Parker in Portland Bank v. Apthorp, supra: —
Taxes of this sort must undoubtedly be equal; that is, they must operate upon all persons who exercise the employment which is so taxed. A tax upon one particular moneyed capital would unquestionably be contrary to the principles of justice, and could not be supported; but a tax upon all banks we think justifiable, upon the grounds we have stated.
See Oliter v. Washington Mills, 11 Allen, 268.
The franchise or function exercised by the Boston Railroad Holding Company upon which the proposed excise is to be based is the power to acquire and hold as a corporation the stock, bonds and other evidences of indebtedness of a single corporation, the Boston & Maine Railroad. The power to acquire and hold stock, bonds and other securities, as I am advised, is now enjoyed by many corporations formed under the Business Corporation Law, and may be contained in the articles of incorporation of any corporation hereafter formed under such law. There is no reason why a corporation might not be organized for the sole purpose of acquiring and holding this form of property; and, as I have already said, the Boston
DANA MALONE, ATTORNEY-GENERAL. 287
lailroad Holding Company might have been incorporated nder the general law. See, however, St. 1907, c. 585, cited •I pro. I am constrained to say that I can perceive no valid distinc- on between the Boston Railroad Holding Company and other
; orporations organized for similar purposes, which would serve
' D justify a distinction in the method of taxation. The ques- on in this case, as in all similar cases, is one of degree. Dif- 'rent classes of corporations have been subjected to different )rms of excise without contravening the constitutional require- lents hereinbefore referred to; thus, for example, one form of vccise is applicable to savings banks, another to insurance com-
, anies and a third to business corporations. In each case, owever, the difference has been based upon some distinction in
I iie extent or character of the franchise or function which it was itended to tax. In the case before me I am unable to discover uch a distinction- between this corporation and others which ave been or may be formed with like powers, as to justify a
' istinct method of taxation.
It remains to consider the provision to be found in the fourth ection of each of the bills, exempting the bonds of the Boston lailroad Holding Company from local taxation.
All taxes must be proportional and reasonable in their appli- ation, under the constitutional authority of the Legislature "to npose and levy proportional and reasonable assessments, rates, nd taxes, upon all the inhabitants of, and persons resident, and states lying, within the said commonwealth" (Constitution of ■lassachusetts, part the second, chapter I., section I., article v.); and if an exemption from taxation of this nature did not ave the effect to "render the general tax on property through- ut the Commonwealth unequal and disproportionate" {Com- wmcealth v. The People's Five Cents Savings Bank, 5 Allen, 28, 437), it would be unobjectionable. As was pointed out in he Opinion of the Justices, 195 Mass. 607, at page GU: —
If a reasonable excise tax is lawfully imposed upon a conwration, ccording to the amount of its property or business, it is in the power f the Legislature, for the purpose of avoiding double taxation, to exempt
2S8 OPINIONS OF THE ATTORNEY-GENERAL,
its property held and used in the business for which the excise tax is paid, and to exempt tlie stockholders or owners of the beneficial interest in this property, from liability to a property tax upon it.
The exemption must, however, apply to and include all prop- erty of the same general class, for otherwise similar property which is not exempted will be unequally and disproportionally taxed.
If the excise upon the Boston Railroad Holding Company to be established by the proposed act is held to be unconstitu- tional, in accordance with the view which I have already ex- pressed, I am unable to distinguish between the bonds of that corporation and the bonds of any other business corporation which may hold or be authorized to hold securities under like circumstances. Even if such excise is held to be constitutional, it will not, in my opinion, furnish a sufficient justification for the exemption of the bonds from local taxation. As has already been pointed out, the excise to be levied upon the Boston Rail- road Holding Company will not exceed the minimum amount, which is one-tenth of one per cent., in the one case, of the fair market value of the aggregate shares of stock and bonds, and in the other, the fair market value of the capital stock. The burden so imposed, which alone distinguishes the bonds of this corporation from bonds issued by other business corporations of the class already mentioned, cannot, it seems to me, justify an exemption of the bonds from a local taxation which is many times greater in amount, and to which the bonds of such other business corporations will be subjected. In other words, apart from the imposition of the excise, I am unable to discover any valid distinction between the bonds of the Boston Railroad Holding Company and the bonds of any other business corpo- ration which may hold securities of like character; and, even if constitutional, I do not deem that the imposition of such an excise is sufficient to create a distinction which would warrant the exemption provided for in the bills submitted to me.
The communication from the committee on rules contains a request that, if in the opinion of the Attorney-General the drafts of legislation submitted are unconstitutional, he suggest
DANA M ALONE, ATTORNEY-GENERAL. 289
Lich modification, to accomplish the purpose of the bills by laking them of general application or otherwise, as may over- 3me the objection. In this respect I am unable to comply ith the desire of the committee, for the reason that, in my pinion, the only method by which the purpose of the bills may e constitutionally accomplished would be by the enactment of meral legislation applying to all business corporations author- ed to hold securities which have been directly or indirectly ibjected to taxation; and such legislation would, as I am ivised and believe, work fundamental changes in the present IX laws of the Commonwealth, which I assume cannot be ithin the contemplation of the committee at this time.
vSANE Person — jMental Disease — Temporary Care and Treatment — Certificate of Physician — Oath — Nat- ural Guardian.
ader St. 1909, c. 504, § 44, providing for the temporary care, treatment and observation at the McLean Hospital of any person suffering from mental disease, "on the written application of his natural or legal guardian . . . together with the certificate of a physician qualified as pro^aded in section thirty-two, that such temporary care is necessary by reason of mental disease," the physician must set forth, under oath, the same qualifications as those required under section 32.
16 term "natural guardian," as used in section 44 of chapter 504 of the Statutes of 1909, includes the father, and, upon the death of the father, the mother until she remarries.
By vour communication dated April 20 you submit to me two To the
, . . „ . p , State Board
iiestions relative to the construction of section 44 ot chapter of insanity. )4 of the Acts of 1909. April 25.
(1) "Whether it is necessary that the physician should take ith to the certificate of mental disease which he makes under le provisions of said section?"
Section 44 provides for the temporary care, treatment and )servation at the McLean Hospital, for a period not exceeding ven days, of any person suffering from mental disease, "on e written application of his natural or legal guardian, or, if ere be none, upon the written application of a chief or captain pohce, any member of the district police, a selectman, the
290 OPINIONS OF THE ATTORNEY-GENERAL.
state board of charity or the state board of insanity, together with the certificate of a physician quahfied as provided in sec- tion thirty-two, that such temporary care is necessary by rea- son of mental disease." Section 32 provides that the physician who makes the certificate thereunder shall make oath that he possesses certain qualifications set forth in the statute. It fol- lows, therefore, that in preparing a certificate under section 44 the physician must set forth under oath the same qualifications as those required under section 32.
(2) " What is the meaning of 'natural guardian' in this con- nection? May it be construed as referring to the person who ij most interested or is concerned in the reception of a mental pa- tient for temporary care under the provisions of said section?'
When applied to a minor, the term "natural guardian" in- cludes the father, and, upon the death of the father, the mother at least until she remarries. See Worcester v. Marchant, 1- Pick. 510. It was doubtless intended that it should have th( same signification when applied to an insane person under th( provisions of section 44 above referred to.
Clerks of Court — Money paid into Court — Interest
A clerk of the courts may not appropriate to his own use interest upon mone; which under a rule of court or under a statute has been paid into court fo the benefit of the prevailing party in a suit brought to determine the righ to the possession of such money, and such interest is to be added to th principal sum so deposited.
ControUer ^'^^ huxe requested my opinion as to whether a clerk of th
AcTOu"nte^ courts may properly appropriate to his own use the interes
April 26. upon money which has been paid into court, and which, unde
the rules of the court, has been deposited by the clerk in hi
name in a bank or trust company.
I understand your question to have reference not to th money to which R. L., c. 21, § 22, applies, but to money whicl under the rules of the court or under a statute, has been pai into court for the benefit of the party who prevails in the sui brought to determine the right to the possession of the mone^
DANA MALONE, ATTORNEY-GENERAL. 291
In my opinion, a clerk of courts may not properly appropriate 16 interest upon such deposits to his own use. There is no atute and no rule of court which would authorize or justify ich appropriation. The duties of the clerk of courts with ref- •ence to such deposits are fixed by the rules of both the apreme Judicial Court and the Superior Court. Common Law ule XI. of the Supreme Judicial Court provides that: —
In all cases in which monej^ is paid into court, the money shall be nsidered in the custody of the clerk, who shall receive it, and pay it to e party entitled thereto, on request. And if such party is not ready receive the same of the clerk as soon as paid, the clerk shall deposit in some bank, and not draw it, except for the purpose of paying it over the party entitled thereto; and in such case the money shall be deemed be at the risk of the person entitled thereto, from the time of the deposit the time when the same is drawn for. And in all such cases the clerk all be entitled to a fee of one dollar, together with a commission of one T cent on sums not exceeding five hundred dollars, and one half of one T cent on any amount beyond that sum, as a compensation for receiving id paj-ing out the money, to be paid by the party paying the money to court.
Common Law Rule XXVI. of the Superior Court provides follows : —
In cases in which money is paid into court, the money shall be in the stody of the clerk, whose dutj^ it shall be to receive it, and to pay it to e party entitled thereto, on request. If such party is not ready to 3eive the same of the clerk as soon as paid, it shall be the duty of the ;rk to deposit it in some bank in his name as clerk and not to draw it, cept for the purpose of paying it over to the party entitled thereto Jess otherwise specially ordered by the court; and in such case the Dney shall be deemed to be at the risk of the person entitled thereto, )m the time of such deposit to the time when the same shall be so drawn.
The statutes and the rules of court, therefore, make the re- iving and depositing of money paid into court part of the ficial duties of the clerk of courts. The rule of the Supreme idicial Court provides for a special compensation for the per- rmance of this particular duty. The rule of the Superior 3urt does not provide for special comi:^nsation. In the ab-
292 OPINIONS OF THE ATTORNEY-GENERAL.
sence of provision for special compensation, full force must be given to R. L., c. 165, § 37, which provides as follows: —
The annual salaries of clerks shall be in full compensation for all ser\ices rendered by them in the civil or criminal coiu-ts, to the county commis- sioners, in making any returns required by law or in the performance of any other official duty except for such clerical assistance as may be allowed under the provisions of the following section.
The statutes, therefore, make it clear that a clerk of courts is not entitled to the interest in question.
You have also asked my opinion as to who is entitled to the interest, if the clerk of courts is not entitled to it. That is a question which is not strictly within your province to decide, since it is a question of private rights, which properly should be raised by the persons interested in the fund, and should be pre- sented by them to the court for determination.
Without assuming to pass upon the question with reference to the rights of the parties in any particular case, however, it may be of assistance to you in the performance of your duties if I state that, in my opinion, a clerk of courts is to be considered as holding the deposit of money paid into court as trustee of the person who is finally determined to be entitled to it, and that as fast as interest accumulates it becomes impressed with the same trust and belongs to the same beneficiary as the principal.
Fees — State Board of Health — Food and Drug Inspec- tors — Employees of Commonwealth — Witness Fees and Allowances for Travel.
Food and drug inspectors appointed by the State Board of Health are employees of the Commonwealth within the meaning of R. L., c. 204, § 47, as amended by St. 1910, 0. 311, providing in part that "any employee recei^dng regdar compensation from the commonwealth shall not be entitled to a witness fee before any court or trial justice ... in a cause in which the commonwealth is a party," and are not entitled to witness fees for attendance at court oi allowances for travel in any cause in which the Commonwealth is a party.
s°atc Board "^ ^u havc requcstcd my opinion upon the questions whether or
"S"™'*'*' not, under the provisions of St. 1910, c. 311, food and drug in-
•^^ ■ spectors of the State Board of Health are forbidden to receive th(
I
DANA MALONE, ATTORNEY-GENERAL. 293
itness fees provided for by R. L., c. 204, § 21, for attendance t the various courts; and whether, if they are forbidden to re- iive the prescribed amount of 50 cents per day for attendance efore a trial justice, or poHce, district or municipal court, they lay properly receive 5 cents per mile for travel out and home, ; provided by said section 21.
R. L., c. 204, § 47, as amended by St. 1910, c. 311, provides ; follows : —
A district police officer or an officer of the commonwealth whose salary fixed by law, or any employee of the commonwealth receiving regular ■mpensation from the commonwealth shall not be entitled to a witness e before any court or trial justice of this commonwealth in a cause in liich the commonwealth is a party. An officer whose compensation is •rived solely from fees shall not be entitled to receive more than one fee a witness for a day's attendance on court under one or more summonses behalf of the commonwealth, and the said fee shall be apportioned by .6 clerk among the cases in which he is so summoned.
The food and drug inspectors of the State Board of Health •e paid a regular compensation, fixed by the State Board of ealth, and they devote all their time to the performance of leir duties as inspectors. Although appointed by the Board, id although their salaries are fixed in amount by the Board, ley are none the less the employees of the Commonwealth, ceiving their compensation from the Commonwealth. They I'e, therefore, by the provisions of St. 1910, c. 311, not entitled I witness fees for attendance at court in a cause in which the ommonwealth is a party.
The allowance of 5 cents a mile for mileage, as provided in
ction 21, is a part of the fees of the witness, and the receiving
it is therefore forbidden by the same statute. That it was
, )t the intention of the Legislature that any distinction should
15 made as to the receiving of the fee for attendance and the
ceiving of the allowance for mileage, is evidenced by the
lactment of section 48 of said chapter 204, which provides for
le reimbursement of the officers of the Commonwealth who
^■e forbidden by section 47 to receive fees, to the extent of the
nount by which their necessary expenses have been increased
■ attendance at court.
294 OPINIONS OF THE ATTORNEY-GENERAL.
Constitutional Law — Taxation — Unifokm Rate upon All Personal Estate within the Commonwealth.
A proposed act designed to tax personal estate at a uniform rate throughout the Commonwealth, such uniform rate being the average of the annual rates for the preceding three years, is objectionable upon constitutional grounds, because it subjects personal estate to taxation at a rate different from the rate applicable to real estate, and because the rate so established does not bear any relation to the amount to be raised by taxation.
To the Com- The Committee on taxation desires my opinion upon the
mittee on .
Taxation. constitutionality of a proposed act which shall tax personal May3^ estate at a uniform rate throughout the Commonwealth, such
uniform rate being the average of the annual rates for the pre- ceding three years.
The last decision on the subject of proportional taxation is contained in the Opinion of the Justices, 195 Mass. 607, which deals with the question of the constitutionality of a uniform tax of three mills upon certain classes of intangible personal prop- erty, and the opinion was expressed that such tax would be un- constitutional. The proposed tax differs, first in applying to all personal property; and second, in imposing a tax at a rate not fixed by statute, but obtained by finding the average of three annual rates throughout the Commonwealth, and conse- quently, a rate which approximates the local rate, although it may differ materially from such rate.
In my judgment, the principals stated in the Opinion of the Justices are as applicable to a tax upon all personal property as upon the classes referred to in the opinion; and I believe that the method of finding the rate according to the proposed act does not differentiate it from the act considered by the justices. The effect of the act is to subject personal estate to taxation at a rate different from the rate applicable to real estate, in most instances. This, in itself, is objectionable under the cases cited in the opinion, where the proposition is clearly stated that the requirement that taxes be proportional forbids the imposition of a tax upon one class of property at a different rate from that which is applied to other classes. Another objection is that the rate imposed by this act does not bear a relation to the amount
DANA MALONE, ATTORNEY-GENERAL. 295
' tax to be raised. In Oliver v. Washington Mills, 11 Allen, 38, 275, it was pointed out that : —
In assessing the needful amount it should be laid on property, real id personal, within the Commonwealth, so that, taking "all the estates ing within the Commonwealth" as one of the elements of proportion, ich taxpayer should be obliged to bear only such part of the general arden as the property owned by him bore to the whole sum to be .ised.
It will be noticed that the tax under the proposed act bears 3 relation to the amount to be raised during the tax year, the ite being just as arbitrary as if the Legislature had prescribed a xed rate, not by the amount to be raised in a given year, but y the average of the rates for the preceding years. For in- ;ance, suppose in a given town the expenses for a given year re very low; the result is a low tax rate for that year upon the jal estate. The tax rate upon personalty, however, being fixed y the average rate throughout the Commonwealth for the pre- ?ding three years, would probably be much higher. If in the )llowing year the expenses of the town were greatly increased, le local tax rate would necessarily be increased ; but this would ot affect the rate on personalty, which would have been fixed y the Commonwealth rates for the preceding three j'ears. The )llowing year the Commonwealth rate would be slightly in- reased, because of the increase in the local rate; but, unless le increase in the local rate extended throughout the Common- ealth, the increase in the rate of taxation for personal estate ould be hardly noticeable. Not only would the burden of the reater increased expenses of the town fall almost entirely upon ?al estate, but the rate upon personalty would hardly be af- 'cted either in the year when the expenses were increased or 1 any subsequent year.
An act might prescribe the place in which personal property lay be taxed, within reasonable limits. See Northampton v. 'aunty Commissioners, 145 Mass. 108. But this act cannot, in ly opinion, be said to deal merely with the place at which per- )nal property is to be taxed, and, even if it could, the objec-
296 OPINIONS OF THE ATTORNEY-GENERAL.
tion is still valid that the rate of tax bears no relation to the amount to be raised.
In my opinion, therefore, the proposed act is unconstitutional.
Statutes — General and Particular — Repeal — Civil Service — Heads of Departments — Sealers of Weights and Measures — City Charter of the City OF Boston.
St. 1909, c. 486, which established a new charter for the city of Boston, pro\iding, in section 9, that heads of all departments of such city shall be recognized experts in such work as may devolve upon the incumbents of such oflSces, or persons specially fitted by education, training or experience to perform the same, and shall be appointed without regard to party affiliation; and, in section 10, that in making such appointments the mayor shall sign a certifi- cate of appointment and file the same with the city clerk, who shall thereupon forward a certified copy to the Civil Service Commission, who shall make a careful inquiry into the qualifications of the nominee under such rules as they may establish, with the consent of the Governor and Council, and, if they find such qualifications sufficient to meet the requirements of the law, such commission shall file a certificate with the city clerk stating that they have made the requisite examination and that they approve the appointment; and, in section 62, that all acts and parts of acts so far as inconsistent with such act are repealed, — does not repeal the provisions of St. 1909, c. 382, authorizing the Civil Service Commissioners to prepare a rule, to be approved by the Governor and Council, for including within the classified service all principal or assistant sealers of weights and measures holding office by appoint- ment under any city or town of over ten thousand inhabitants, "whether such officers are heads of principal departments or not; " and the latter statute is still applicable to sealers of weights and measures in the city of Boston.
To the The Civil Service Commission asks mv opinion on the fol-
Civil Service " '■
Commission. lowing: —
Under chapter 382 of the Acts of 1909, the Civil Service Conaniis- sioners are authorized to prepare a rule, which shall take effect when approved by the Governor and Council in the manner provided bj-- law, for including within the classified service all principal or assistant sealers of weights and measures, etc., "whether such officers are heads of principal departments or not." This act was approved May 13, 1909, and took effect on its passage.
Under this act the commission prepared a rule, as follows, which went into operation Sept. 1, 1909: —
m
DANA MALONE, ATTORNEY-GENERAL. ' 297
Rule 7.
'lass 6. All principal or assistant sealers of weights and measures holding office by appointment under any city, or any town of over ten thousand inhabit- ants, whether such officers are heads of principal departments or not, and also the inspectors of weights and measures of the Commonwealth.
By decision of the Supreme Judicial Court, the civil service rules, ^hen duly in force, have the effect of statute law.
Under section 9 of chapter 486 of the Acts of 1909 (the city charter f Boston), it is provided that heads of all departments of the city of loston shall be recognized experts in such work as may devolve upon the neumbents of the offices, or persons specially fitted by education, training r experience to perform the duties; that they shall be appointed without jgard to party affiliations or residence at the time of appointment.
Under section 10 of the act, it is provided that in making appointment tie mayor shaU sign a certificate, etc., and that the Civil Service Com- lission shall make careful inquiry into the qualifications of the nominee, nder such rules as they may with the consent of the Governor and Council stabUsh; and if the applicant is qualified under the requirements of the iw, the commission shall file with the city clerk a certificate, signed by t least a majority of the commissioners, that thej^ have made careful iquirj'' into the qualifications of the appointee, and that in their opinion e is qualified by education, training or experience, etc., for said office.
By the provisions of section 62 of the city charter, it is provided that U acts and parts of acts, so far as inconsistent with this act, are hereby epealed.
Sections 1 to 14 (including sections 9 and 10), by the provisions of ection 63 of the city charter act, took effect on the first Monday of ebruary, 1910.
Section 62 of the city charter took effect June 11, 1909.
Questions. — First: are the provisions of said chapter 382 of the Acts f 1909 inconsistent with the provisions in the city charter above referred D, and is said chapter 382, and the civil service rule prepared thereunder, jpealed so far as relates to the principal sealer of weights and measures f Boston?
Second: if not, is it sufficient if the commission, in filling a vacancy 1 the position, shall hold a competitive examination of apphcants under he pro\'isions of the civil service rules, or is the commission obliged also D make careful inquiry and certificate of quahfications, as required by 3Ction 10 of the city charter?
The question submitted is, whether section 9 of chapter 486 f the Acts of 1909 repealed chapter 382 of the Acts of 1909.
298 ' OPINIONS OF THE ATTORNEY-GENERAL.
The general rule relative to repeal of acts is stated in Black on the Interpretation of Laws, p. 116. See also Endlich on Interpretation of Statutes, §§ 223, 225, 228. Chief Justice Shaw, in Broicn v. Lowell, 8 Met. 172, summarizes the rule as fol- lows : —
In general, we should think it would requhe pretty strong terms in the general act, showing that it was intended to supersede the special acts, in order to hold it to be such a repeal.
See, also, Copeland v. Springfield, 166 Mass. 498, and cases cited.
In Brooks v. Fitchburg & Leominister Ry. Co., 200 Mass. 8, 17, Mr. Justice Rugg says: —
The principle of interpretation is well established that statutes alleged to be inconsistent with each other, in whole or in part, must be so con- strued as to give reasonable effect to both, unless there be some positive repugnancy between them.
The force of this rule is not diminished even when the general act contains a clause repealing acts inconsistent with it. See Endlich on Interpretation of Statutes, § 223.
With this rule in mind, I am of opinion that section 9 of chapter 486 of the Acts of 1909 did not repeal chapter 382 of the Acts of 1909. Both acts were under consideration by the Legislature at the same time. The act to include sealers and inspectors of weights and measures within the classified civil service -was approved INIay 13, while the act for the city charter of Boston was approved June 11, 1909, to take effect on the first Monday of February, 1910, so far as section 9 is concerned. Section 62 of chapter 486 of the Acts of 1909 repealed all acts and parts of acts so far as inconsistent with that act; but it does not seem to me that by these words it was intended to repeal a general act which had been enacted less than a month before the approval of this special act, without expressly repealing it. Chapter 382, being a general law applying to all cities and to towns having a population of more than ten thousand, it seems
I ,
DANA MALONE, ATTORNEY-GENERAL. 299
:o me is still in force; and that the rule made by your commis- 5ion, which went into operation Sept. 1, 1909, is still in force, ind applies to the city of Boston as well as to other cities and meh towns, and is not inconsistent with the provisions of the nty charter, and must be construed so as to give reasonable jJGfect to both that statute and to chapter 382, I think it suf- icient if the commission, in filling a vacancy in the position, lold a competitive examination of applicants under the pro- visions of the civil service rules, and proceed as is usual in such ?ases.
Constitutional Law — Taxation — Income Tax.
A general income tax, imposed upon the income from real and personal propertj^ as well as upon income from annuities and from professions, trades and employments, which is in addition to and not in substitution for existing taxes, would probably be held unconstitutional as a property tax, as not being within the requirement of the Constitution of Massachusetts, part II., section I., Article IV., that taxes shall be "proportional and reasonable," upon the ground that thereby a greater burden is imposed upon property from which income is derived than upon property of equal value from which no income is derived, and would be unconstitutional as an excise tax for the reason that the mere right to own and hold property cannot be made the subject of an income tax.
In behalf of the committee on taxation, you submit for mv TotheCom-
. 1 . . . . . p "^ mittee on
consideration the following question: ''Is it possible to frame "^^^^J'""- a general income tax bill that will be compatible with our State ^^^y "• Constitution?"
I assume that by a "general income tax" you mean a tax upon the income from real and personal property, as w^ell as upon income from annuities and from professions, trades and employments. I further assume that you desire my opinion as to the validity of such a tax in addition to existing taxes, and not in substitution therefor.
There are undoubtedly certain forms of income which are, by reason of our federal form of government, exempt from taxa- tion by the State. I refer to salaries of federal officials (Dob- hins v. Commissioners of Erie County, 16 Pet. 435) and interest upon federal securities. See Weston v. City Council of Charles-
300 OPINIONS OF THE ATTORNEY-GENERAL.
to7i, 2 Pet. 449; Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429; 158 U. S. 601. Such income would be exempt from a general income tax, though not expressly excepted there- from.
The Constitution of this Commonwealth contains two provi- sions authorizing taxation, which are to be found in Part IL, chapter 1, section 1, article IV. The General Court is author- ized to ''impose and levy proportional and reasonable assess- ments, 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, whatso- ever, brought into, produced, manufactured, or being within the same; ..." In substance, the first provision authorizes pro- portional and reasonable taxes upon property; the second, rea- sonable excises upon privileges.
The statutes now provide that "personal estate for the pur- pose of taxation shall include : — ... The income from an annuity, and the excess above two thousand dollars of the in- come from a profession, trade or employment" during the pre- ceding year, but that "incomes derived from property subject to taxation shall not be taxed." St. 1909, c. 490, part I., § 4. This provision in substantially the same form is found in all the codifications of the general tax laws of the Commonwealth. R. S., c. 7, § 4; Gen. Sts., c. 11, § 4; Pub. Sts., c. 11, § 4; R. L., c. 12, § 4. Prior to the passage of a general tax act, both before and after the adoption of the Constitution, a similar pro- vision was usual to the annual tax acts.
The constitutionality of the existing provision for taxation of incomes has not been expressly affirmed, but the justices of the Supreme Judicial Court, in the Opinion of the Justices, 195 Mass. G07, seemed to assume its validity'. They say, at page 610:—.
It is proper that one's income, to a reasonable amount, should be treated as necessarily consumed for the support of himself or of his family, so thot only the excess above such amount should be regarded as property increasing his ability to pay taxes.
DANA MALONE, ATTORNEY-GENERAL. 301
But on page 612 say further that: —
The constitutionahty of some of the statutes to which we have referred
IS not been affirmed, and may be questionable. But nearlj- all of them
•e consistent wuth the view that all available property should be taxed
;cording to its value, for the purpose of estabhshing the proportional
I oility and duty of individual owners to bear their burdens as citizens.
The natural conclusion from this language of the justices is ot only that the tax is constitutional, but that it is constitu- onal as a tax upon property. This conclusion is in accord
ith the form of the statute which provides, as I have stated, lat personal property shall include certain incomes. In two ases (Melcher v. Boston, 9 Met. 73, and Wilcox v. County Com- lissioners, 103 Mass. 544) the income tax was before the court, ut the decisions do not help us in this inquiry.
If the existing tax on incomes is a property tax, there is even lore reason for considering a tax upon incomes derived directly rem property to be a property tax. A majority of the United itates Supreme Court, in the Income Tax Cases (Pollock v. yarmers' Loan & Trust Co., supra), held the federal tax on in- omes from real and personal property to be a direct tax on uch real and personal property.
Assuming that a general income tax is a tax on property, its onstitutionality depends, of course, upon whether it is propor- ional and reasonable. I see no reason why a general income ax bill could not be framed which would be reasonable. Vhether such a tax would be proportional is a more difficult luestion. If the property, real or personal, has once been taxed is such, a tax on the income therefrom will result in double axation. This, of itself, though perhaps theoretically objec- ionable, is not necessarily constitutionally objectionable. '^rothingham v. Shaiv, 175 Mass. 59, 61. Where, however, louble taxation results in disproportionate taxation, it is con- titutionally objectionable. There is much reason to' believe, dthough there is no decision thereon, that the imposition of a ax on incomes from property otherwise taxable would be re- garded as unconstitutional, on the ground that thereby a greater
302 OPINIONS OF THE ATTORNEY-GENERAL.
burden is imposed upon property from which income is derived than upon property of equal intrinsic value from which no in- come is derived.
If a general income tax cannot be sustained as a tax on prop- erty, it probably cannot be sustained at all. It was pointed out in the Opinion of the Justices, 195 Mass. 607, 614, that "the mere right to own and hold property such as is referred to in the question [the question being in regard to certain forms of per- sonalty] cannot be made the subject of an excise tax." The same principle must apply to the right to own and hold realty and other forms of personalty. A tax upon income from prop- erty construed as an excise, it seems to me, would be nothing more than an excise on the privilege of holding such property, and, in accordance with this expression of opinion of the jus- tices, would be unconstitutional.
I have stated to you certain conclusions, but there is no au- thoritative decision upon this question in this Commonwealth, and, before the enactment of so important a measure, it would be most desirable that the opinion of the justices of the Supreme Judicial Court be asked.
Water Supply — Great Ponds — State Board of Health — Control and Regulation — Wright's Pond and Ash- ley's Pond in the City of Holyoke — Regulation of Public Rights.
The State Board of Health, under the provisions of R. L., c. 75, § 112, and § 113 as amended by St. 1907, c. 467, vesting in such board the "oversight and care of all inland waters and of all streams and ponds used by any city, town or public institution ... as sources of water supply," and pro%ading that it may regulate and control the exercise of the pubHc rights of fishing, boating, skating or taking ice, and may delegate the power of granting or witholding permits to the local authority, — may regulate the exercise of such public rights on Wright's Pond and Ashley's Pond in the city of Holyoke, used by said city as a source of water supply under the provisions of St. 1872, c. 62, provided such regulation or prohibition is reasonably necessary to secure the sanitary protection thereof.
mHteeo^n°"' ^u behalf of the committee on water supply, you inquire Water Supply, ^^hcther Or uot, uudcr existing laws, the State Board of Health -^^' now has authority to regulate or prohibit the public use of a
I
DANA M ALONE, ATTORNEY-GENERAL. 303
jreat pond, and to delegate the enforcement of such regulation )r prohibition to the authorities of a city or town. In connec- ion with such inquiry you have submitted to me a draft of a jroposed act, entitled, "An Act relative to public rights in Vshley's Pond and Wright's Pond in the city of Holyoke," and lave directed my attention to the second section of such draft vhich is as follows : —
Fishing, boating, skating or riding upon the ice, taking water for domes- ic purposes or the arts, the cutting or harvesting of ice, and all other uses )f the waters of said ponds, except under such regulations as may be !StabHshed by the board of water commissioners of said city of Holj'-oke ifter the passage of this act, shall be unlawful; and any person who shall 38 found guilty of fishing, boating, skating or riding upon the ice, taking ivater for domestic purposes or the arts, or cutting or harvesting ice, shall ye liable to a fine of not less than ten nor more than fifty dollars for each offence.
By section 2 of chapter 62 of the Statutes of 1872, the town of Holyoke was authorized "to take and hold the entire waters of Ashley's and Wright's ponds, so called" (which I assume to be great ponds), "and the waters which flow into and from the same, and also the waters of such brooks as may be conven- iently diverted and conducted into said ponds," with other powers necessary or convenient for the purpose of supplying such town with pure water. It is fair to assume, although it does not appear, that the authority so conferred was exercised by the town, and that all the rights or interests acquired there- under are now held and enjoyed by the city of Holyoke.
The authority of the State Board of Health in the premises is derived from R. L., c. 75, § 112, and § 113 as amended by St. 1907, c. 467. Section 112 vests in the State Board of Health the general oversight and care of all inland waters, and of all streams and ponds used by any city, town or public institution or by any water or ice company in this Commonwealth, as sources of water supply, and of all springs, streams and water courses tributary thereto.
The power and authority of the State Board of Health to pro- tect sources of water supply by reasonable rules and regulations
304 OPINIONS OF THE ATTORNEY-GENERAL.
is both comprehensive and conclusive, and often has been exer- cised under this or similar provisions of law. Sprague v. Dorr, 185 Mass. 10; Nelson v. State Board of Health, 186 Mass. 330.
If, in the discretion of that Board, the proper protection of the purity of a source of water supply requires that the public be regulated and controlled in its use of a great pond whqse waters form a part of such source of supply, or that the public use be discontinued altogether, it would undoubtedly be within the authority of such Board to make reasonable rules and regu- lations for that purpose. See Sprague v. Minon, 195 Mass. 581. In other words, the Board may take such measures as are rea- sonably necessary to secure the proper sanitary protection of a source of water supply, notwithstanding that thereby the use by the public of a great pond which is a part of such water supply may be greatly impaired and restricted, or even entirely destroyed.
Replying specifically to the question of the committee, there- fore, it is my opinion that, under the provisions of R. L., c. 75, § 113, as amended by St. 1907, c. 467, the State Board of Health may regulate and control the exercise of the public rights of fishing, boating, skating on or taking ice from Ashley's Pond and Wright's Pond, even to the extent of prohibiting them altogether; and may delegate the power of granting or withholding any permits which may be required by the rules and regulations made for such purpose to the board of health, or the water board, or the water commissioner, as the case may be, of the city of Holyoke. This authority, however, must be predicated upon a determination by the State Board of Health that the exercise of the public rights regulated or prohibited en- dangers the purity of the waters of such ponds as a source of water supply and that such regulation or prohibition is reason- ably necessary to secure the sanitary protection thereof.
I
DANA MALONE, ATTORNEY-GENERAL. 30i
I'ONSTIXrTIONAL LaW — MONEY RAISED BY TAXATION — PUB- LIC Purpose — Relief of Persons out of Employment BY Construction of Highways in Times of Industrial Distress.
The expenditure of money raised by taxation must be limited to a public purpose and it is not, therefore, within the power of the Legislature to authorize the Governor and Council to issue and sell bonds and to expend the proceeds in the construction of highways, where the primary purpose of such construction was to furnish relief to persons out of employment in times of industrial distress.
You have submitted to me, on behalf of the Senate com- To the Senate
Committee on
nittee on ways and means, an inquirv as to whether or not "it ways and
^ '■ Means.
s within the power of the Legislature to authorize the Governor ju^g 9^ md Council to issue bonds and to construct public highways 'or the purpose of creating employment in times of industrial distress;" or, in other words, whether or not it is constitutional :o undertake public work, not primarily because such work s required for the public safety or convenience, but in order :o provide employment for those whose circumstances re- quire it.
It is well established that the expenditure of money raised by taxation must be limited to a public purpose. Lowell v. Oliver, S Allen, 247, 253; Mead v. Acton, 139 Mass. 341, 344; Kingman ?t al., petitioners, 153 Mass. 566. And the relief of persons who bave suffered loss by fire or by any other great and general calamity has been held not to be a public purpose. Lowell v. Boston, 111 Mass. 454; ante p. 151.
It is clear, therefore, that the Legislature may not employ money raised by taxation for the relief of persons who have suf- fered loss either by some great calamity or by industrial condi- tions which have deprived them of employment, unless the relief so provided is in the nature of pauper aid; and, in my opinion, the fact that the contemplated relief is to be furnished by means of employment upon public works, as for instance, public highways, does not serve to render constitutional an appropriation therefor of money raised by taxation, if the primary purpose of such appropriation was to furnish relief to
306 OPINIONS OF THE ATTORNEY-GENERAL.
persons out of employment, rather than the construction of highways required by pubhc convenience or safety. In such a case the construction of highways is only incidental to the pur- pose of affording relief by means of an appropriation of public money.
You have further requested me to examine House Bill No. 403, with a view to determining whether such bill "is free from objectionable provisions of any other nature." You have not sought my opinion as to w^hether the bill is objectionable upon the ground set forth in the inquiry which I have already an- swered, and I therefore express no opinion upon the application of the principle above stated thereto.
The second section of House Bill No. 403 contains provisions for the issuance of bonds, to be described as "The State High- W'ay Emergency Fund Loan," and provides for their sale at such times and prices, and in such amounts and at such rates of interest, not exceeding 4 per cent., as may be deemed best. It then continues : —
The sinking fund established by chapter four hundred and ninety- seven of the acts of the year eighteen hundred and ninety-four shall also be maintained for the purpose of providing for the payment of the bonds issued under authority of this act, and the treasurer and receiver-general shall apportion thereto from year to year an amount sufficient with the accumulations of said fund to extinguish at maturity the debt incurred by the issue of said bonds. The amount necessary to meet the annual sinking fund requirements and to pay the interest on said bonds shall be raised by taxation from year to year.
If this section is to be construed as imposing any new liability or obligation upon a sinking fund already established to meet bonds issued under the provisions of St. 1894, c. 497, I am of opinion that it is objectionable as constituting an interference with the obligations of a contract already established and in force. See 2 Op. Atty.-Gen. 505.
Section 5 provides that in case the Highw^ay Commission is directed to undertake the work of constructing highways in any city or town, "they shall employ as laborers and mechanics such
DANA MALONE, ATTORNEY-GENERAL. 307
ersons as shall be recommended to them by the mayor of the ity or the selectmen of the town, giving preference to men out f work, and especially to men having persons dependent upon hem for support," provided that such employees are citizens of lassachusetts. This preference, which is based upon the neces- ity of the employee rather than of the public service, cannot be ustained upon the ground that it is a reward for distinguished ublic service in the past, or will serve as encouragement for Lich service in the future. It is therefore, in my opinion, objec- ionable for constitutional reasons, in that it purports to fix as a asis for employment something which does not bear such a Nation to the duties to be performed as to show special fitness 3r the performance of those duties. Broion v. Russell, 166 lass. 14; Opinion of the Justices, 166 Mass. 589. A further provision which is at least of doubtful validity is hat contained in section 1, which in effect requires the Gover- or and Council to determine when a time of industrial distress, rising from scarcity of work, exists among laborers, and to irect the Treasurer and Receiver-General to issue bonds, scrip r certificates of indebtedness to an amount not exceeding the um of S100,000 in any one year. The powers and duties of the ilxecutive are prescribed by the Constitution, and the Legisla- ure is not authorized to impose upon him duties which do not iroperly fall within the executive functions vested in him under he Constitution. With respect to the power here sought to >e conferred, the authority of the Legislature in the premises nay well be questioned. See 1 Op. Atty.-Gen. 172.
308 OPINIONS OF THE ATTORNEY-GENERAL.
i
Massachusetts Agricultural College — State Ixstitu- l TioN — Trustees — Sale of Land to Institution at a ^ Profit.
To be a state institution implies that the institution, and the work it carries on, is directly under the control of the Commonwealth ; that its officers are the agents of the Commonwealth, and that its property is the property of the Commonwealth; and the Massachusetts Agricultural College at Amherst, a public charitable corporation organized under the provisions of St. 1863, c. 220, for educational purposes, and having a distinct corporate existence, does not answer these requirements, and is not, strictly speaking, a State institution.
The trustees of the Massachusetts Agricultural College may not legally, as individ- uals, purchase land and later sell it to such institution at an increased cost over the original price.
Jf°Re''r^°"^^ I have the honor to acknowledge the receipt of an order
aentatives.
1910 June 13.
adopted by the Honorable House of Representatives on the 9th day of June, 1910, which is as follows: —
Ordered, That the Attorney-General give his opinion ... to the House of Representatives whether or not in his judgment the Massa- chusetts Agricultural College at Amherst is a State institution; also, whether the trustees of the Massachusetts Agricultural College, as m- dividuals, have a legal right to purchase land and later sell it to the Massachusetts Agricultural College at an, increased price over the original cost.
The first question as to which my opinion is desired is, whether the INIassachusetts Agricultural College at Amherst is a State institution.
The ^Massachusetts Agricultural College was incorporated by St. 1863, c. 220. By that act certain persons were " constituted a body corporate, by the name of the Trustees of the ]\Iassa- chusetts Agricultural College, the leading object of which" should be "without excluding other scientific and classical studies, and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions of life;" and it was provided that "they and their successors, and
DANA MALONE, ATTORNEY-GENERAL. 309
ach as shall be duly elected members of said corporation, shall e and remain a body corporate by that name forever." The ower of removing trustees from the corporation was given to 16 trustees, but vacancies in the board of trustees were to be lied by the Legislature. The Governor of the Commonwealth, le secretary of the Board of Education, the secretary of the ■card of Agriculture, and the president of the faculty were lade ex officio members of such corporation (section 1). The jrporation was given the usual powers in regard to taking and olding of property, making by-laws, saving a common seal, ling and being sued (sections 2, 3). The Legislature reserved le right to alter, limit, annul or restrain the powers vested in le corporation, and especially to "appoint and establish over- jers or visitors of the said college, with all necessary powers )r the better aid, preservation and government thereof" (see- on 5). The corporation was required to report to the Legis- iture, and it was provided that its location, plan of organ- ;ation, government and course of study should be subject to le approval of the Legislature (sections 5, 6). The purchase I a site was authorized, and one-tenth part of the moneys jceived from the State Treasurer from the sale of land scrip y virtue of the provisions of the 130th chapter of the Acts f the Thirty-seventh Congress was appropriated therefor, on le condition that the further sum of $75,000 should be sub- bribed for the purpose of erecting suitable buildings thereon jeetions 6, 7). When the college was established, two-thirds f the annual income from the fund created by the sale of such md scrip was to be paid to its treasurer (section 8). This land -rip represented public land, and was granted by the United tates, by the act of Congress above referred to, to the several tates, to be invested by them (see sections 4, 5), other than 10 er cent, thereof, and the interest in each State to be appro- riated "to the endowment, support and maintenance of at ■ast one college where the leading object" should be "without ^eluding other scientific and classical studies, and including lilitary tactics, to teach such branches of learning as are re- ited to agriculture and the mechanic arts." It was further
310 OPINIONS OF THE ATTOKNEY-GENERAL.
provided by the act of incorporation of the college (section 9) as follows : —
In the event of a dissolution of said corporation, by its voluntarj- act at any time, the real and personal property belonging to the corpora- tion shall revert and belong to the commonwealth, to be held by the same, and be disposed of as it may see fit, in the advancement of education, in agriculture, and the mechanic arts. The legislatm-e shall have authority at any time to withhold the portion of the interest or income from said fund provided in this act, whenever the corporation shall cease or fail to maintain a college within the provisions and spirit of this act and the . before-mentioned act of congress, or for any cause which they deem sufficient.
Since the original act of incorporation there has been consid- erable legislation in regard to the college. By St. 1864, c. 223, its corporate name was changed to " The INIassachusetts Agricul- tural College," and it was provided that the location, plan of organization, government and course of study should be subject to the approval of the Governor and Council, instead of to the approval of the Legislature. The power to fill vacancies in the board of trustees was, by St. 1871, c. 378, conferred upon such board, but by the Resolves of 1884, chapter 50, the power of appointment and removal was conferred upon the Governor, with the advice and consent of the Council, and the term of service was fixed at seven years. By St. 1866, c. 263, the Board of Agriculture was constituted a board of overseers of the col- lege, with powers and duties to be defined and fixed by the Governor and Council. (See P. S., c. 20, § 5; R. L., c. 89, § 10). By St. 1894, c. 143 (see St. 1895, c. 57), the Massachu- setts Agricultural Experiment Station was consolidated with the experiment department of the Agricultural College, and it was provided that the property of the former should be ac- cepted by the trustees of the college "for said college in behalf of the commonwealth" (section 2). Other acts contain pro- visions in regard to the reports of the trustees of the college, in R. L., c. 9, § 7, such reports being classified under "reports of public institutions." Many appropriations in favor of the Massachusetts Agricultural College have been made, and free
I
DANA MALONE, ATTORNEY-GENERAL. 311
cholarships have been established there by the State. See, for xample, St. 1909, c. 436. It has been provided that the books nd accounts of the college shall be kept under the direction of he Auditor of the Commonwealth, who shall audit the expendi- ures and receipts at least twice a year. (See, for example, ;t. 1909, c. 436, § 3.) St. 1889, c. 45, provides that such trus- ees shall be allowed and paid from the treasury of the Com- Qonwealth "such sum as is necessary for their personal and ncidental expenses incurred in the discharge of their duties, in he same manner as the trustees of other public institutions are low paid and allowed."
From these statutes it appears that the Massachusetts Agri- lultural College is not a mere agency of the Commonwealth, t has a distinct corporate existence. It is a public charitable •orporation organized for educational purposes. The right to ;ontrol its character and location was reserved by the Legisla- ure. The Legislature expressly reserved the right to amend md repeal the charter, though this right was undoubtedly re- erved by the general law. Gen. Sts., c. 68, § 41. It also ex- )ressly reserved the visitorial power, though such power was mdoubtedly in the Legislature apart from statute. Amherst icademy v. Cowls, 6 Pick. 427, 433. Under these and other )owers the Legislature has to a considerable extent controlled ;he affairs of the college. Much of the property which the cor- Doration holds has come to it by appropriation by the Com- nonwealth, either from moneys raised by taxation or from property granted to the State by the general government to be Used for such purposes. See Massachusetts Agricultural College /. Marden, 156 Mass. 150, 156. All the original deeds of the •eal estate run to the Massachusetts Agricultural College, and n one or more of them it is described as a corporation created 3y law. The property transferred from the Massachusetts (Agricultural Experiment Station is, by express statutory provi- .ion, held "in behalf of the commonwealth." Generally speak-
ng, however, it is apparent that under the form of organization 3f the college, property is held by it upon trust for the benefit 3f the public, subject to revision to the Commonwealth in the
312 OPINIONS OF THE ATTORNEY-GENERAL.
event of a voluntary dissolution of the corporation. Except for this limited reversion, the situation is that existing in the ordinary case of a public charitable corporation. As to whether the Commonwealth has any additional rights over the property, by reason of the fact that it was acquired by the expenditure of public moneys, I express no opinion.
Though these facts characterize the Massachusetts Agricul- tural College as a public charitable corporation, it does not fol- low that the college is a State institution. The words "State institution" are susceptible of various meanings. Very likely the college is such an institution w^ithin the meaning of some statutes. In the strict sense of the words, however, it is not, in my opinion, a State institution. To be a State institution implies that the institution, and the work it carries on, is directly under the control of the State, that its officers are agents of the State, and that its property is the property of the State. The Massachusetts Agricultural College does not an- swer these requirements. The fact that it is subject to legisla- tive government and control, and the fact that the Common- wealth has contributed to its support, do not constitute it a State institution. Chalfont v. State, 37 Ohio St. 60.
Although, as I have said, the Massachusetts Agricultural Col- lege is not strictly a State institution, the Legislature, as ap- pears from statutes to which I have referred, seems often to have treated it as such. Whether action on the part of the Commonwealth and of the corporation, which shall establish the position of the college as a State institution, in the strict sense, and shall beyond question vest the title to its property in the Commonwealth, is desirable, is not for me to determine.
The second question as to which my opinion is desired is, whether the trustees of the Massachusetts Agricultural College, as individuals, have a legal right to purchase land and later sell it to the INIassachusetts Agricultural College at an increased price over the original cost.
My opinion is not sought as to the rights or liabilities of the trustees upon any specific state of facts. I can therefore merely state the general principle of law which is applicable. The trus-
DANA M ALONE, ATTORNEY-GENERAL. 313
ees of the college are substantially directors of the corporation, nd, like directors generally, stand in a fiduciary relation to the orporation. The rule which applies to fiduciaries is stated in ^arker v. Nickerson, 112 Mass. 195, 196, as follows: —
As a general rule, a trustee or agent cannot purchase on his own ac- ount what he sells on account of another, nor purchase on account of nother what he sells on his own account. He cannot unite in himself iie opposite characters of buyer and seller. And if he does so, the ceshd lie trust or principal, unless upon the. fullest Icnowledge of all the facts he lects to confu'm the act of the trustee or agent, may repudiate it, or he lay charge the profits made by the trustee or agent with an implied rust for his benefit.
See, also, Parker v. Nickerson, 137 Mass. 487, 497; Old Do- 'linion Copper Co. v. Bigelow, 188 Mass. 315, 321, 329; S. C, :03 Mass. 159, 177, 178; Hayes v. Hall, 188 Mass. 510, 511; imerican Circular Loom Co. v. Wilson, 198 jNIass. 182, 206.
vVestbokough State Hospital — Trustee — Appointment OF Officees — Compensation — Governor and Council.
I It. 1909, c. 504, § 18, providing that the trustees of the Westborough State Hospital I "shall appoint or make provision . . . for appointing such officers as . . .
may be necessary for conducting . . . the business of the institution; and shall determine, subject to the approval of the governor and council, the salaries of all the officers . . . ," includes all persons who hold positions in such institution which are created by the trustees, and who are paid salaries, as distinguished from persons who do not hold distinct positions and are emploj-ed for wages, and requires that the proposed compensation of a person holding such position shall be approved by the Governor and Council.
You have requested mv opinion as to what appointees of the xotheTrus-
^ "^ ^ 1 • ^ 1 tees of the
;rustees, or of a superintendent by authority oi the trustees, ^y^''/J'g"°g"«i^j )f the Westborough State Hospital are persons whose salaries j^'^j'^'^^o. iiust be approved by the Governor and Council under the fol- owing provisions of St. 1909, c. 504, § 18: —
They [the trustees] shall appoint a superintendent who shall be a physician and who shall constantly reside at the institution, assistant
314 OPINIONS OF THE ATTORNEY-GENERAL.
physicians, one of whom in each institution for the insane in which women are received as patients and in which more than two assistant physicians are employed shall be a woman, and a treasm-er who shall give bond for the faitliful performance of his duties; shall appoint or make provision in by-laws for appointing such officers as in their opinion may be necessary for conducting efficiently and economically the business of the institution; and shall determine, subject to the approval of the governor and council, the salaries of all the officers. . . .
It is evident that the Vv^ord "officers" is used in the statute in a special sense, and that for a position in the hospital to be an "office," within the meaning of the statute providing that the trustees shall appoint " such officers as in their opinion may be necessary for conducting efficiently and economically the business of the institution," it is not necessary that the position should have all the attributes of an office considered as a public office.
In my opinion, the intent of the statute is that the Governor and Council shall have submitted to them for their approval the proposed compensation of all persons who hold positions in the institution which are created as positions by the trustees, and who are paid salaries, as distinguished from those persons who do not hold distinct positions and are employed for wages.
DANA MALONE, ATTORNEY-GENERAL. 315
ndependent industrial schools — non-resident pupils — Tuition Fees — Maintenance Fund — Disposition of Revenue — Cities and Towns — Money received from Fees for granting Licenses for the Sale of Intoxi- cating Liquor.
F| t. 1908, c. 572, § 4, which permits the attendance of non-resident pupils at an independent industrial school "upon payment by the city or town of his residence of such tuition fee as may be fixed by the" State Board of Educa- tion, authorizes such Board to establish a tuition fee for such attendance which in the view of the Board is fair and reasonable under all the circum- M stances of the case. Tuition fees received from non-resident pupils, and
^ revenue arising from compensation for the work of pupils or from a sale of the products of an independent industrial school, should be applied to the maintenance of such school, loney received by a city or town from fees for the granting of liquor Hcenses and appropriated to the maintenance fund of an independent industrial school is not "money raised by local taxation" or "money donated or contributed," within the meaning of St. 1906, c. 505, § 5, as amended by St. 1909, c. 540,
a providing that where "a city, town or district, either by moneys raised by
local taxation or by moneys donated or contributed, has maintained an independent industrial school, the commonwealth, . . . shall pay ... to such cities, towns or districts a sum equal to one half the sum raised by local taxation," and no account should be made thereof in the reimbursement provided for in such section.
You have submitted to me for mv opinion certain questions To the state
" Board of
nvolving the construction of St. 1906, c. 505, as amended by Education. 5t. 1908, c. 572, and St. 1909, c. 457, to which I reply as fol- J^"<^ ^7. ows: —
1. "May the Board fix the tuition for non-resident pupils as )er section 4, chapter 572, xA.cts of 1908, at that figure in each •ase which seems to it fair and reasonable under all the circum- itances, or is it bound to determine that tuition fee upon any )articular principle?"
The attendance of pupils at industrial schools established in •ities or towns other than that in which such pupils reside is Drovided for by section 4 of chapter 572 of the Statutes of 1908, -vhich permits such attendance "upon payment by the city or :own of his residence of such tuition fee as may be fixed by said commission," the commission being the Commission on Indus- :rial Education, whose powers and duties, by the provisions of 5t. 1909, c. 457, devolved upon the commission created thereby
316 OPINIONS OF THE ATTORNEY-GENERAL.
by a consolidation of such commission with the Board of Educa- tion. No particular principle upon which tuition fees may be determined for non-resident pupils is provided by the act, and I am of the opinion that such tuition fee should be a sum which in the view of the Board is fair and reasonable under all the circumstances of the case.
2. "Should the receipts from non-resident pupils be applied to the maintenance fund, the construction fund or the equip- ment fund of independent industrial schools?"
By section 5 of chapter 505 of the Statutes of 1906 it is pro- vided that: —
Wlienever any city or town , . . shall appropriate money for the establishment and equipment and maintenance of independent schools for industrial training, the commonwealth, in order to aid in the main- tenance of such schools, shall pay annually from the treasury to such cities, towns, ... a sum proportionate to the amount raised by local taxation and expended for the support of schools for each thousand dol- lars of valuation, as follows: . . .
I am of opinion that this provision of law does not contem- plate that the Commonwealth should contribute toward the ex- pense of construction or equipment of independent industrial schools, and that the tuition fee so received should be applied to the expenses of maintenance.
3. "Should the revenue arising from compensation for the work of pupils or from a sale of the products of a school be ap- plied to the maintenance fund, the construction fund or the equipment fund?"
As I have already said, the law does not contemplate that the Commonwealth should share in any of the expenses of estab- lishing, constructing or equipping an independent industrial school, and its responsibility in the premises begins when a city or town has appropriated money raised by taxation for the pur- pose of maintenance. It seems to me that the proper view to take of receipts of this character is to apply them to the main- tenance of the school, so that they, together with tuition fees and other receipts which do not represent money raised by tax-
DANA MALONE, ATTORNEY-GENERAL. 317
ition, may serve to diminish both the amount to be raised by he city or town by taxation and the amount to be reimbursed )y the Commonwealth. Thus, the expense of purchasing raw naterials to be worked by the pupils into a salable product night well be charged against the sums received therefor, and he net profit be applied to the maintenance of the school.
4. " In the case of one independent industrial school, the city uthorities have transferred liquor license money to the mainte- lance fund of the school. Does such money constitute a part )f the sum raised by local taxation for the maintenance of the chool, within the meaning of chapter 540, Acts of 1909, for ^hich reimbursement should be made by the State?"
It is provided in St. 1906, c. 505, § 5, as amended by St. 1909, ;. 540, that: —
Upon certification by the board of education to the auditor of the ■ommonwealth that a city, town or district, either by moneys raised by ocal taxation or by moneys donated or contributed, has maintained an ndependent industrial school, the commonwealth, in order to aid in the naintenance of such schools, shall pay annually from the treasm-y to uch cities, towns or districts a sum equal to one half the sum raised by ocal taxation for this purpose : 'provided, that no payment to any city or own shall be made except by special appropriation by the legislature.
Money received by a city or town from fees for liquor licenses s neither "money raised by local taxation" nor "money do- lated or contributed," and therefore no account should be uade thereof in the reimbursement provided for under the sec- ion quoted.
318 OPINIONS OF THE ATTORNEY-GENERAL.
Massachusetts Highway Commission — Motor Vehicles OWNED BY United States Government — Certificate OF Registration — Fees.
Under St. 1909, c. 534, which in section 2 requires the registration of motor vehicles, and in section 29 fixes the fees to be collected therefor, with the further pro- vision that the Massachusetts Highway Commission "may issue certificates of registration for motor vehicles and licenses to operate the same to any member of the foreign diplomatic corps without the paj^ment of the fees therefor," such commission is not authorized to issue a certificate of registra- tion without the payment of fees for motor vehicles owned by the government of the United States.
ML^sachusetta ^ou Tcquest my opinion as to whether the Massachusetts Commfssion. Highway Commission has the power to issue for motor vehicles June 28. owned by the United States government certificates of registra-
tion and number plates without the payment of fees.
On May 8, 1908, I advised your commission as follows: —
I am of opinion that the motor vehicles in question are exempt from registration. They are means employed by the government of the United States to execute its constitutional powers, and therefore are exempt from taxation and registration in this Commonwealth.
St. 1909, c. 534, requires the registration of motor vehicles (section 2), and fixes the fees to be collected therefor (section 29). The only provision for furnishing certificates of registra- tion for motor vehicles without the payment of fees is contained in the last paragraph of section 29, which provides that "the commission may issue certificates of registration for motor vehi- cles and licenses to operate the same to any member of the for- eign diplomatic corps without the payment of the fees therefor." There is, therefore, no express authority for the issuing of cer- tificates of registration for motor vehicles owned by the United States government without the payment of fees. Since the statute requires the payment of fees in the case of all persons except members of the foreign diplomatic corps, there is no authority in the commission to issue, without the payment of fees, certificates of registration to the United States government. In view of the express provision in favor of members of the for-
DANA MALONE, ATTORNEY-GENERAL. 319
:ign diplomatic corps, no such provision can be implied in favor if the United States government.
According to the earlier ruling, certificates of registration are lot required for motor vehicles owned by the United States gov- rnment. If, however, certificates are desired as a matter of onvenience, they must be paid for.
Of course the rule as to number plates follows the rule as to ertificates, since the commission is required (see section 2) to iirnish, without charge, number plates to persons whose auto- Qobiles are registered according to statutory provisions.
LICENSE — Intoxicating Liquors — Licensed Premises — Certificate of Inspector of Factories and Public Buildings — Hotel — Lodging House — Ten or More Rooms above the Second Story.
'he provisions of R. L., c. 104, § 49, requiring that the certificate of an inspector of factories and public buildings shall be obtained before an innholder's license or a license to sell intoxicating liquors may be granted for any premises, is not applicable, under R. L., c. 104, § 25, as amended by St. 1905, c. 347, and St. 1907, c. 503, § 1, to a hotel in which not more than ten persons lodge or reside above the second story.
n section 33 of chapter 104 of the Revised Laws, providing in part, that "the owner, lessee, proprietor or manager of a hotel, which is not otherwise suitably provided with fire escapes, or a lodging house which contains ten or more rooms above the second story, shall place ... a knotted rope ... for use as a fire escape in every room of said hotel or lodging house used as a lodging room, except rooms on the ground floor," the words "which contains ten or more rooms above the second story" apply to and describe a lodging house, and have no reference to the word "hotel" in said section.
Your letter of Mav 27 submits for my consideration certain To the
" Chief of the
nquiries, of which the first is as follows: — oisu^ct Police.
Juno 29.
Is a certificate of an inspector of factories and public buildings required efore an innholder's license or a license to sell intoxicating liquors can e granted by the city or town authorities (excepting city of Boston) for hotel which is less than three stories in height, or has less than ten rooms bove the second story, or in which less than ten persons lodge or reside bove the second story?
J20 OPINIONS OF THE ATTORNEY-GENERAL.
I am advised that the certificate to which you refer is that required under the provisions of R. L., c. 104, § 49, which is as follows : —
A license which is required by law, ordinance or by-law to authorize any premises to be used for any purpose specified in section twenty-five shall not be granted until a certificate for such building or portion thereof shall fii'st have been obtained from an inspector as above pro^^ded, and, when issued, shall not continue in force after the expiration of such certifi- cate.
Section 25 of that chapter, as amended by St. 1905, c. 347, and St. 1907, c. 503, § 1, provides, so far as is material, that: —
a hotel, family hotel, apartment house, boarding house, lodging house or tenement house in which ten or more persons lodge or reside above the second story, . . . shall be provided with proper egresses or other means of escape from fu'e, sufficient for the use of all persons accommodated, assembled, employed, lodged or resident therein; . . .
Your question, in substance, requires my opinion as to whether the words "in which ten or more persons lodge or reside above the second story" apply to hotels, family hotels, apartment houses, boarding houses, lodging houses and tenement houses, or are limited in their application to tenement houses only.
The earliest legislation relating to the inspection of factories and public buildings is to be found in St. 1877, c. 214, which, in section 5, provided that all churches, schoolrooms, hotels, halls, theatres and other buildings used for public assemblies should have such means of egress as the inspectors of factories and public buildings should approve; and this provision appears in Pub. Sts., c. 104, § 20. By St. 1882, c. 266, § 2, Pub. Sts., c. 104, § 20, was amended by adding thereto the follo^nng words : —
Every building three or more stories in height, in whole or in part used, occupied, leased or rented, or designed to be used, occupied, leased or rented for a tenement to be occupied by more than four families, or a lodging house, shall be provided with a sufficient means of escape in case of fire, to be approved by the inspector of factories and public buildings.
I
DANA MALONE, ATTORNEY-GENERAL. 321
The following year an act (St. 1883, c. 251) was passed "to cure better provisions for escape from hotels and certain other lildings, in case of fire." This provided, in part, in section 1, at the keeper of a hotel, boarding or lodging house containing le hundred or more rooms, "and being four or more stories gh," should maintain at least two competent watchmen, prop- ly assigned, and on duty between the hours of 9 o'clock at gilt and 6 o'clock in the morning; and the keeper of a hotel, )arding or lodging house containing more than fifty but less an one hundred rooms, "and being three stories high," should aintain at least one competent watchman on duty during the me hours. Section 2 provided that: —
Hotels used and occupied as public houses, for the reception and en- 'tainment of guests, boarding or lodging houses and school buildings, ing three or more stories high, and accommodating or ha\'ing the means
accommodating thirty or more persons, . . . shall be supplied inside ereof with proper and sufficient means or appliances for escape, in case
fire, ...
In 1888 the law regulating ways of egress and means of escape om fire was codified in St. 1888, c. 426, in which section 1 con- ins the following provision: —
Every building now or hereafter used, in whole or in part, as a public lilding, public or private institution, schoolhouse, church, theatre, ibUc hall, place of assemblage or place of public resort, and evcrj' build- g in which ten or more persons are employed above the second story in factory, workshop or mercantile or other establishment, and every )tel, family hotel, apartment house, boarding house, lodging house or nement house in which ten or more persons lodge or reside above the cond story, and every factory, workshop, mercantile or other estab- hment the owner, lessee or occupant of which is notified in writing by e inspector hereinafter mentioned that the provisions of this act are ■emed by him applicable thereto, shall be provided with proper ways egress, or other means of escape from fire, sufficient for the use of all ■rsons accommodated, assembling, employed, lodging or residing in ch building; . . .
And the same provision, that "every hotel, family hotel, )artment house, boarding house, lodging house or tenement
322 OPINIONS OF THE ATTORNEY-GENERAL.
house in which ten or more persons lodge or reside above the second story," is repeated in St. 1894, c. 481, § 24, and, with the single change from "every hotel," etc., to " a hotel," etc., is to be found in R. L., c. 104, § 25, as amended by St. 1907, c. 503, § 1.
It appears, therefore, that the regulation of means of escape in hotels and boarding or lodging houses originally applied only to hotels and boarding or lodging houses which were three or more stories in height (St. 1883, § 251), and that such regula- tion so limited had been in force for five years when laws rela- tive to the inspection of buildings were codified in St. 1888, c. 426, where substantially the same language was employed in section 1 with reference to hotels and boarding or lodging houses that is to be found in existing provisions of law. I see no rea- son to believe that by this codification the Legislature intended to extend the application of the law to a class of buildings w^hich up to that time had been excepted from its provisions, or to limit the application of the qualifying words to tenement houses, so as to create a distinction between a tenement house and a hotel, family hotel, apartment house, boarding house and lodging house. The conclusion which I have reached is sup- ported by the language of the court which considered this sec- tion (then St. 1888, c. 426, § 1), in Perry v. Bangs, 161 Mass. 35. 36, where the court said: —
Section 1 of St. 1888, c. 426, fii'st describes the buildings to be subject ■ to the provisions of the act, and this description includes "every hotel, family hotel, apartment house, boarding house, lodging house, or tene- ment house in which ten or more persons lodge or reside above the second story." The description ends as follows: "and every factory, workshop, mercantile or other establishment the owner, lessee, or occupant of which is notified in writing by the inspector hereinafter mentioned that the provisions of this act are deemed by him applicable thereto, shall be provided with proper ways of egress or other means of escape from fire, sufficient for the use of all persons accommodated, assembling, employed, lodging, or residing in such building." We assume that the words re- quiring a notice in writing from the inspector that he deems the provisions of the act applicable to certain establishments apply only to the buildings or establishments mentioned in the last clause of the description, and that
DANA MALONE, ATTORNEY-GENERAL. 323
hotel in which more than ten persons lodge or reside above the second Dry is subject to the provisions of the act, even if no such notice has been ;^en by an inspector.
I am constrained to advise you, therefore, that a certificate of I inspector of factories and public buildings is not required be- re an innholder's license or a license to sell intoxicating liquors ay be granted by the city or town authorities for a hotel in hich not more than ten persons lodge or reside above the cond story.
Your communication contains certain other inquiries, as fol- ws: —
Does section 33, chapter 104, Revised Laws, apply to any hotel more
an one story in height outside of Boston?
Does section 34, chapter 104, Revised Laws, require an annual inspec-
m by the city or town (except Boston) inspector of buildings, or the
ief engineer of the fire department, in May, of every hotel of less than
a rooms above the second story?
Does section 34, chapter 104, Revised Laws, require knotted ropes or
tter appUances in every hotel which is not otherwise suitably provided
th fire escapes, and which is more than one story in height?
These inquiries relate to sections 33 and 34 of chapter 104 of le Revised Laws, and in slightly different phrase present the same |iestions. Section 33, so far as it is material, is as follows: —
The owner, lessee, proprietor or manager of a hotel, which is not othcr- ise suitably provided with fire escapes, or of a lodging house which ■ntains ten or more rooms above the second story, shall place or cause be placed a knotted rope or better appliance for use as a fire escape in ery room of said hotel or lodging house used as a lodging room, except cms on the ground floor.
Your inquiries, in substance, require my opinion upon the uestion whether or not the words "Avhich contains ten or more )oms above the second story" qualify the word "hotel," as ell as the words "lodging house."
I am of opinion that a consideration of the history of this articular provision makes it clear that the words "which con- lins ten or more rooms above the second story" apply to and
524 OPINIONS OF THE ATTORNEY-GENERAL.
describe a lodging house, and have no reference to the word "hotel" which precedes them. Thus, the provision with re- spect to hotels was originally enacted in 1890, and is to be found in chapter 307 of that year, and required that : —
Every owner, lessee, proprietor or manager of a hotel . . . shall . . . place or cause to be placed a knotted rope or other better appliance for use as a fire escape in every room of said hotel used as a lodging room, except rooms on the ground floor.
The provision with respect to lodging houses containing ten or more rooms above the second story was enacted in 1894 (St, 1894, c. 341); and in the same year the two provisions were combined in St. 1894, c. 481, § 44, which is identical with sec- tion 33 of chapter 104 of the Revised Laws, except that in the latter section the w^ords "for the protection of human hfe ir case of fire" are omitted after the words "fire escapes" in the third line.
It follows, therefore, that the description with respect tc rooms above the second story is applicable only to a lodging house, and does not describe or limit the word "hotel."
Civil Service — Assistant Commissioner of the Penal Institutions Department of the City of Boston.
The assistant commissioner of the penal institutions department of the city ol Boston appointed by the penal institutions commissioner under the provision; of St. 1897, c. 395, § 5, is within the classification of "superintendents, assist- ant and deputy superintendents, deputies, executive officers and person; other than the chief superintendent of departments ..." in civil service rule 7, section 1, clause 1, and is subject to the provisions of the civil service law and rules.
cfviflervice ^ ^'^ Fcquest my opinion as to wdiether the position of assist-
*^'i9io''^^*°°' ^^^* commissioner of the penal institutions department of Bos- Juiyu. ^^j^ jg within the classified civil service.
The penal institutions department is a department of th( city of Boston. See opinion of Feb. 16, 1910. The assistant commissioner is within the classification of civil service rule 7 section 1, clause 1, of "superintendents, assistant and deput}
DANA MALONE, ATTORNEY-GENERAL. 325
uperintendents, deputies, executive officers and persons other han the chief superintendent of departments performing any of he duties of a superintendent in the service of any city." The act that the position is described as that of "assistant commis- ioner" instead of "assistant superintendent" is immaterial, ince the duties must be analogous, and in my opinion such as- istant commissioner is within the classified service of the city. The only remaining question is, whether the position is by tatute exempt from civil service rules. It is not so exempt by L L., c. 19, § 9, which is the general provision for exemptions, lor, in my opinion, is it exempt by any special statutory provi- ion. St. 1895, c. 449, § 14, provides that "the institutions de- )artment shall be under the charge of one institutions commis- ioner." Section 20 provides that: —
The officer or board in charge of any department created by this act
. . may, with the approval of the mayor, appoint not exceeding three
issistants . . . ; and such appointment shall be exempt from the laws re-
ating to civil service in the commonwealth and the cities and towns thereof.
St. 1897, c. 395, § 5, after changing the name of the depart- nent, provides that "the penal institutions commissioner may, .vith the approval of said mayor, appoint one assistant." St. 1909, c. 486, § 15, repeals St. 1895, c. 449, § 20, except as to the election department. The office of assistant commissioner is, :herefore, created by St. 1897, c. 395, and as to it there is no specific provision for exemption from the civil service.
Civil Service — Officers whose Appointment is subject to Confirmation by City Council — Constables.
C"onstable3 whose appointments must be confirmed by the city council of the city of Boston are "officers . . . whose appointment is subject to confirmation by the . . . city council" within the meaning of R. L., c. 19, § 9, providing that such officers, among others, shall not be affected as to their selection or appointment by the civil service rules.
You have requested mv opinion as to whether constables To the
^ ' ^ •IP Civil Service
\vhose appointments must be confirmed by the city council ot Commission, the city of Boston are officers within the provisions of R. L., J"'y 2i.
326 OPINIONS OF THE ATTORNEY-GENERAL.
c. 19, § 9, and therefore exempt from civil service classifica- tion.
R. L., c. 19, §§ 6 to 8, inclusive, authorize the making of rules regulating the selection of officers and employees in the service of the cities of the Commonwealth. Under authority of these sections certain rules have been made, one of which places within the classified service ** constables in the service of any city receiving pay other than the statutory fees." Civil service rule 7, class 18. Constables in the service of the city of Boston receiving pay other than the statutory fees, are, therefore, within the civil service classification, unless expressly excepted therefrom by statute.
R. L., c. 19, § 9, provides that: —
Judicial officers and officers elected by the people or by a city council, or whose appointment is subject to confirmation by the executive council or city council of any city, . . . police and fire commissioners and chief marshals, or chiefs of police and fu-e departments, shall not be affected as to their selection or appointment by any rides made as afore- said; but, with the above exception, such rules shah apply to members of police and fire departm.ents.
The constables in question are not expressly excepted from the application of the rules unless they 'are "officers . . . whose appointment is subject to confirmation by the . . . city council."
In towns, "the selectmen may appoint as many constables ... as in their opinion may be necessary." R. L., c. 25, § 87. In cities, the mayor and aldermen have the powers of select- men. R. L., c. 26, § 2. When an appointment is to be made by the mayor and aldermen, the mayor has "the exclusive power of nomination, subject to confirmation or rejection by the aldermen." R. L., c. 26, § 8. In the city of Boston, the mayor and city council have the powers of a board of alder- men. St. 1909, c. 486, § 1.
The principal duty of a constable is the service of process, both criminal and civil. A constable may, however, serve civil process only if he has given the statutory bond. R. L., c. 25, §§ 88 to 93, inclusive.
DANA MALONE, ATTORNEY-GENERAL. 327
In view of the statutory provisions referred to, I am of opin- m that a constable is an officer within the meaning of the ,ord as used in R. L., c. 19, § 9. See Leavitt v. Leavitt, 135 lass. 191, 193; Brown v. Russell, 166 Mass. 14, 26; Attorney- ieneral v. TiUinghast, 203 INIass. 539. "His appointment is ubject to confirmation by the . . . city council" of Boston. [itorney-General v. Douglass, 195 Mass. 35, 38. The constables Q question are, therefore, in my judgment, exempt from civil ervice classification.
The opinion which I have expressed applies to constables, but
, lot to members of the pdlice department. Police officers are, in
j ;eneral, classified within civil service rules. See rule 7, classes
' A to 17, inclusive. The statute which provides for exemptions
rem the application of the civil service rules further provides
hat "such rules shall apply to members of police . . . depart-
nents." R. L., c. 19, § 9. Moreover, in the city of Boston not
)nly regular and reserve police, but also special police, are ap-
Dointed by the police commissioner and not by the mayor and
:ity council. St. 1887, c. 177; St. 1898, c. 282; St. 1906, c. 291,
MO.
City or Town — Money borrowed in Anticipation of Taxes — Limit of Authority to issue Notes in Payment.
I Under the provisions of R. L., c. 27, § 6, authorizing a city or town, by a majority vote, to "incur debts for temporary loans in anticipation of the taxes of the municipal year in which such debts are incurred and expressly made payable therefrom by such vote," a town may not legally issue notes for debts incurred in anticipation of taxes in any one year when such debts exceed in the aggregate the total amount which the town has by vote authorized to be so borrowed.
A town may not, under the provisions of R. L., c. 27, § 6, authorize an amount to be borrowed in anticipation of taxes which exceeds the amount of the tax assessed or to be assessed for the year within which the debt is contracted.
By your letter of July 29 you desire to be advised as to xotho whether or not a town has authoritv "to legally issue notes the Bureau
.of Statistics.
m anticipation of taxes for any one year to an amount m the ^^'^J^^^g aggregate in excess of the total amount which the town b\- vote has authorized may be borrowed. For example: if a town is authorized to borrow S50,000 in anticipation of taxes, may it
328 OPINIONS OF THE ATTORNEY-GENERAL.
borrow in excess of that sum, provided at any one time it has not more than S50,000 outstanding?"
I assume that you refer to money borrowed in anticipation of taxes under the provisions of R. L., c. 27, § 6, which is as fol- lows : —
Cities and towns may by a majority vote incur debts for temporary loans in anticipation of the taxes of the municipal year in which such debts are incurred and expressly made payable therefrom by such vote. Such loans shall be payable within one year after the date of their incur- rence, and shall not be reckoned in determining the authorized Umit of indebtedness.
Under this provision of law I am of opinion that the amount of the debt which the town has by vote duly authorized to be incurred may not in any case be exceeded, and that the au- thority of the town officers in the premises is exhausted when they have once contracted a debt to the extent of the sum set forth in such vote. It follows, therefore, that notes may not be legally issued for debts incurred in anticipation of taxes in any one year when such debts in the aggregate exceed the total amount w^hich the town has by vote authorized to be so bor- row'ed. See 1 Op. Atty.-Gen. 24, 65, 418; Agaivam National Bank V. Inhabitants of South Hadley, 128 Mass. 503; Smith v. Dedham, 144 Mass. 177.
You also desire to be advised "as to what is the limit, if any, upon the amount which can be borrowed by a municipality in anticipation of taxes."
Section 6, above quoted, imposes no express limitation upon the authority of a town to incur debts for temporary loans, but, by its implication, such authority must be limited to the amount of the tax assessed or to be assessed in the year during which such debt is incurred. Thus, if the debt is incurred be- fore the tax has been actually assessed, its amount must not exceed the amount of taxes to be levied for the year within which such debt is contracted. If the debt is incurred after the taxes have been assessed and before they are collected, it must not in any event exceed the amount of tax money assessed for that year remaining uncollected.
DANA MALONE, ATTORNEY-GENERAL. 329
STREET Railway Company — Issue of Bonds — Board of Railroad Commissioners — Approval — Sale at Less THAN Par Value.
The pro%'ision of St. 1906, c. 463, part III., § 103, that for the purposes therein specified a street railway company "may . . . increase its capital stock or issue bonds, ... to such an amount, ... as the board of railroad com- missioners shall determine will realize the amount which has been properly expended or will be properly required ... for such of the purposes aforesaid as are set out in its petition to said board," authorizes the Board of Railroad Commissioners to approve an issue of bonds and the sale thereof by a street railway company at less than par value, provided that the price realized by such sale furnishes a fair and reasonable equivalent for the securities so disposed of.
The Board of Railroad Commissioners, having acted upon the petition of a street railway company and determined the amount of bonds which, if sold at par, would realize the amount properly expended or properly required, as set forth in the petition, upon a subsequent petition may take into consideration the fact that the petitioner has been unable to dispose of the bonds so authorized at par, and may approve a further issue of bonds for the same purpose in order to meet the deficit so created.
5t. 1910, c. 536, amending St. 1906, c. 463, part III., § 103, and providing that the Board of Railroad Commissioners, in authorizing an issue of bonds under section 103, "may prescribe the minimum price at which such bonds shall be sold, and may modify such price from time to time," and where the mini- mum price so established is less than par, may provide for the establishment of a sinking fund which at the maturity of the bonds will amount to the difference between the selling price and the par value thereof, is applicable to a petition pending at the time of its passage.
By a communication dated September 23 you have requested J°Rafiroad'^'^ ny opinion upon certain questions arising under the provisions Comnwsioners. |)f St. 1906, c. 463, part III., § 103, as amended by St. 1910, o<=!f^2i. p. 536. Your communication states that under the statute first nentioned, and prior to the enactment of the amendment, the Board approved : —
m issue by a street railway companj- of bonds of a par or face value , 'qual to the amount of certain floating indebtedness properly incurred jy the company in the construction and equipment of its railway and in he purchase of property necessary for its operation. The company ?old the bonds, and realized therefrom an amount less than their par >'alue and less than the amount of floating indebtedness which it was :>roposed to pay. After applj'ing the proceeds of the sale of said bonds 0 said floating indebtedness, the company filed its petition with the Board for approval of the issue of additional bonds to an amount sufficient
530 OPINIONS OF THE ATTORNEY-GENERAL.
to pay the balance of tlie floating indebtedness not paid with the proceeds of the bonds previously approved by the Board and issued and sold by the company. During the pendency of this petition, the General Court enacted chapter 536 of the Acts of 1910.
Upon these facts, and upon the assumption that the Board is satisfied that the petitioning street railway company acted in good faith in the sale of the bonds first approved and obtained a fair market value therefor, the following specific questions are asked: —
1. Can the Board now, under the authority conferred upon it by said section 103 of Part III. of chapter 463 of the Acts of 1906, as amended by chapter 536 of the Acts of 1910, approve, upon the company's pending petition, the issue of such additional bonds as this Board may deem to be reasonably necessary to realize the balance of the amount of floating indebtedness, previously found by the Board to have been properly incurred, and which the bonds previously approved by it had not been sufficient entirely to pay?
2. Can the Board now, under said statutes, and on the company's pending petition, if the Board approves the issue of any additional bonds as prayed for in said petition, require the company to establish a sinking fund, as provided in said chapter 536 of the Acts of 1910?
3. Is it necessary for said company to authorize and file a new petition subsequent to the enactment of chapter 536 of the Acts of 1910, in order to give this Board jurisdiction under said act to require the company to establish a sinking fund under the provisions thereof?
Section 103 of part III. of chapter 463 of the Acts of 1906 provides as follows : —
A street railway company, for the purpose of building an extension, or of acquiring land for pleasure resorts, or of acquiring or building power houses or car houses or park buildings, or of acquiring or equipping addi- tional rolling stock, or of changing its motive power, or of furnishing electricity to a town for light, or of abolishing grade crossings, or of paying betterment assessments for widening or otherwise altering streets, or of complying with any requirements lawfully imposed, or of making perma- nent investments or improvements, or of acquiring any additional real or personal property necessary or convenient for its corporate objects, or of refunding its funded debt, or for the payment of money borrowed or indebtedness incurred for any of the foregoing purposes, or for other
^
DANA MALONE, ATTORNEY-GENERAL. 331
imilarlj'- necessary and lawful purposes, may, in accordance with the )rovisions of sections one hundred and seven, one hundred and eight, one lundred and eleven and one hundred and twelve of Part III, and of ections forty-eight to fifty-six, inclusive, of Part II, increase its capital tock or issue bonds, secured by mortgage or otherwise, to such an amount, )eyond the amounts fixed and limited by its agreement of association ir its charter, or bj' any special law, as the board of railroad commissioners hall determine will realize the amount which has been properly expended ir will be properly required, and as said board shall approve for such of he purposes aforesaid as are set out in its petition to said board.
To the purposes for which a street railway company might in- •rease its capital stock, as thus set forth, St. 1909, c. 485, added he further purpose of supplying itself with w^orking capital.
Sections 107 to 112 of part III. of the chapter last quoted 'ontain certain directions and restrictions upon the issuance of -tocks, bonds, coupon notes and other evidences of indebtedness )y street railway companies, which are not pertinent to the present inquiry.
Sections 48 to 56 of part II. regulate the issuance by a rail- •oad corporation of coupon or registered bonds, coupon notes or )ther evidences of indebtedness payable at periods of more than :welve months from the date thereof to provide means for fund- ing its floating debt, or for the payment of money borrowed for my lawful purpose, or authorize the mortgage of a part or all of its railroad, equipment or franchise, or a part or all of its real )r personal property, together with provisions for the operation md management of the railroad in case there is a default in the performance of the conditions of the mortgage.
St. 1910, c. 536, is as follows: —
Section one hundred and three of Part III of chapter four hundred md sixty-tln-ee of the acts of the year nineteen hundred and six is hereby imended by adding at the end thereof the following: — Said board, in luthorizing the issue of any bonds under this section may prescribe the ninimum price at which such bonds shall be sold, and may modify such price from time to time, as the board may deem proper. Whenever said Joard authorizes or has approved the issue or sale of bonds of a face \-alue in excess of the amount determined by it to have been properly expended or to be properly required, it may, in its order of approval, or
332 OPINIONS OF THE ATTORNEY-GENERAL.
at any time thereafter, require the company issuing such bonds to estab- lish a sinking fund, estimated to realize at the maturity of said bonds a sum equal to the difference between the amount or amounts for which such bonds were authorized or approved, and the face value of the bonds so authorized or approved therefor, and may designate some Massachu- setts trust company as trustee and custodian of such fund, and may from time to time change such trustee. The provisions of any agreement relative to said sinking fund, made between the street railway company and the trust company selected as such trustee, shall be submitted to said board and shall not be valid until approved by it.
This statute created no new purpose for which, subject to the approval of the Board of Railroad Commissioners, bonds may be issued. Its only effect is to confer upon the Board authority to prescribe a minimum price at which bonds may be sold, and, where such minimum price is less than par, to provide for the establishment of a sinking fund which will at maturity amount to the difference between the selling price and the par value of the bonds. It follows, therefore, that the first question to be decided is, whether or not section 103, without reference to the amendment passed in 1910, either expressly or by implication, places a limitation upon the sale of bonds issued under its pro- visions for the purpose of raising money to pay for work of con- struction or to fund floating indebtedness or for any other law- ful purpose.
I am of opinion that there is nothing in section 103, or in the other sections therein referred to, which limits the power of a street railway company to dispose of bonds, lawfully issued, at less than par if the price obtained is the fair market value of the securities sold. Generally speaking, a corporation, in the absence of statutory prohibition or restriction, may issue its bonds or other evidences of indebtedness at a discount, or may dispose of them at less than par, provided that the price realized or the work or materials furnished give a reasonable equivalent for the securities disposed of. Gamble v. Queens County Water Co., 123 N. Y. 91; Coe v. Columbus, etc., Railroad Co., 10 Ohio, 372; Northside Railway Co. v. Wonhington, 88 Tex. 562. And this power in railroad or street railway corporations has been uniformly recognized by the Legislature of this Commonwealth.
N
DANA MALONE, ATTORNEY-GENERAL. 333
3o in St. 1854, c. 286, which provided that a railroad corpora- tion established by the laws of the Commonwealth might issue bonds for " the purpose of funding its floating debt or for money «hich it may borrow for any purpose sanctioned by law," and v\hich, in Commonicealth v. Smith, 10 Allen, 448, was held to prohibit the issuance of bonds for any purpose and in any man- ner other than that therein provided, it was expressly enacted in section 5 that "all bonds or notes which have been, or which may hereafter be, issued by any railroad corporation, shall be binding and collectible in law, notwithstanding such notes or bonds were negotiated and sold by such corporation, or their agents at less than par." And this provision is re-enacted in section 51 of part II. of chapter 463 of the Statutes of 1906, and is by reference applicable to bonds issued under section 103 of part III. of such chapter.
I see nothing in the language of section 103 itself which either directly or by implication negatives the power so recognized. On the contrary, it expressly provides that a street railway company for the purposes specified " may . . . issue bonds . . . to stick an amount ... as the board of railroad commissioners shall determine icill realize tlie amount which has been properly expended or will he properly required, and as said board shall ap- prove for such of the purposes aforesaid as are set out in its petition to said board," — a choice of words by which, in my opinion, the Legislature clearly intended to recognize that, if bonds cannot be disposed of for their par value after an effort so to do made in good faith and with due diligence, the amount to be authorized by the Board, computed upon the basis of a sale at par, will not realize an amount equal to that which has been properly expended or will be properly required for the pur- poses specified, and to authorize the Board to determine the amount, expressed in the par value of the bonds, which icill realize such amount. This view is confirmed by the language of St. 1910, c. 536, which could only have been adopted upon the theory that section 103 already recognized that it might be necessary to dispose of bonds at less than par and authorized them to be so disposed of; for such statute does not confer
334 OPINIONS OF THE ATTORNEY-GENERAL.
upon either the street railway company or the Board of Rail- road Commissioners any new power in the premises, but pro- vides simply that the Board, in authorizing the issue of bonds under section 103, may prescribe a minimum price at which they may be sold, and where such minimum price is established may provide for a sufficient sinking fund for their redemption at par. INIoreover, the Legislature must be deemed to have been well aware that, from the condition of the market or from other causes entirely beyond the control of the petitioning street railway company, it might often be that such company would be unable to dispose of its bonds at par, and, if restricted to an issue of an amount which in par value did not exceed the in- debtedness to be met, would be forced to make the deficit good by other means, and would be left with a floating indebted- ness originally incurred for a purpose for which bonds might be issued, but which could no longer be bonded, and must be met from earnings or carried as a permanent floating debt.
Adopting this construction of the provisions of section 103 of part III. of chapter 463 of the Acts of 1906, I reply specifically to the questions submitted by your communication as fol- lows : —
1. In view of the conclusion above reached, the first inquiry of the Board is reduced in substance to an inquiry whether the Board, having acted upon a petition of a street railway com- pany and determined the amount of bonds which if sold at par value would realize the amount properly expended or properly required, as set forth in the petition, may, upon a subsequent petition, take into consideration the fact that, after an effort made in good faith and with all diligence to dispose of the bonds so authorized at par, the petitioner had failed to do so, and that the amount realized by actual sale upon the market was insufficient to accomplish the whole purpose for which the bonds were issued, and approve a further issue of bonds for the same purpose in order to meet the deficit so created. To this question I am of opinion that the reply should be in the affirm- ative. If the Board might have approved the issue of the ad- ditional bonds in the first instance, I see no reason why they
DANA MALONE, ATTORNEY-GENERAL. 335
night not subsequently approve them upon a presentation of ill the facts showing failure to realize a sufficient amount by :he sale of the bonds first approved for the same purpose.
2. St. 1910, c. 536, goes no further than to require the Board :o make certain additional regulations and restrictions with ref- erence to any issue of bonds which it may authorize under the Drovisions of section 103, and I am of opinion that it may apply IS well to a pending petition as to one brought after its passage, [t interferes with no vested rights of the petitioning company, ind, therefore, is not subject to any objection upon constitu- ;ional grounds.
3. The conclusion reached in replying to the second question requires that the third question of the Board be answered in the negative.
Taxation — Domestic Corporation — Minimum Limit of Tax — Local Taxation — Deductions — Mortgage on Real Estate.
I In determining the minimum limit of tax upon a domestic corporation under the provisions of St. 1909, c. 490, part III., § 43, that " the total amount of tax to be paid by such corporation in any year upon its property locally taxed in this commonwealth and upon the value of its corporate franchise shall amount to not less than one tenth of one per cent of the market value of its capital stock at the time of said assessment as found by the tax commissioner," a mortgage on real estate taxable as real estate to the mortgagor, and held by a, domestic corporation, is not included within "its property locally taxed in this commonwealth," and the tax paid by the mortgagor on such real estate may not be used to reduce the amount of the franchise tax to be paid by the corporation holding such mortgage.
You have requested mv opinion upon a question which is To the Tax
! ^ ^ t I ^ ^ ^ Commissioner.
substantially as follows: in determining the minimum limit of q^^^^^JJ 27. tax upon a domestic corporation, is a mortgage on real estate taxable as real estate to the mortgagor, held by such corpora- tion, included within "its property locally taxed in this Com- monwealth"?
St. 1909, c. 490, part IIL, § 43, relative to the taxation of domestic corporations, provides in part that : —
the total amount of tax to be paid by such corporation in any year upon its property locally taxed in this commonwealth and upon the value of
336 OPINIONS OF THE ATTORNEY-GENERAL.
its corporate franchise shall amount to not less than one tenth of one per cent of the market value of its capital stock at the time of said assess- ment as found by the tax commissioner.
In my opinion, a mortgage on real estate, taxable as real estate to the mortgagor, held by a domestic corporation, is not included within "its property locally taxed in this Common- wealth;" in other words, the tax paid by the mortgagor on such real estate is not to be used to reduce the amount of the fran- chise tax to be paid by the corporation holding such mortgage.
In determining the minimum franchise tax to be paid by a domestic corporation, both the amount ''to be paid by such cor- poration in any year upon its property locally taxed in this Commonwealth" and the amount to be paid by it "upon the value of its corporate franchise" are to be considered. Taxes, if any, to be paid by anybody else upon the property of the corporation are not to be included. It follows that the tax to be paid upon mortgaged real estate is not to be included when it is not to be paid by the corporation holding the mortgage. The interest of a mortgagee in real estate may be assessed to him as real estate, or the whole estate may be assessed to the mortgagor in possession. St. 1909, c. 490, part I., §§ 15-18, inclusive, § 45. Abbott v. Frost, 185 Mass. 398; Sullivan v. Bos- ton, 198 Mass. 119. Only when the mortgagee's interest is assessed to the mortgagee can it properly be said that the tax is to be paid by it. This is not such a case. The situation is similar to that in the case of leased real estate. Such real estate may be assessed to the lessor or to the lessee. St. 1909, c. 490, part I., §§ 15 and 20. In an opinion of my predecessor (2 Op. Atty.-Gen. 556) you were advised that real estate leased by a domestic corporation is "its real estate . . . subject to local taxation" within the meaning of St. 1903, c. 437, § 72 (now St. 1909, c. 490, part III., § 3), and that the value of such real estate is to be deducted from the value of the corporate franchise "if it appears that such leased real estate is taxed to the corporation." In both cases the actual method of taxation employed governs.
The fact that in a particular case a corporation which is the
I
DANA MALONE, ATTORNEY-GENERAL. 337
iiortgagee by reason of an agreement with the mortgagor bears .he burden of the tax on its interest, although such tax is not issessed to it, is immaterial. The purpose of the minimum imit upon the amount of the franchise tax was to require each lomestic corporation to pay some tax directly. As was ob- erved by the committee which reported the business corpora- ion law (see report, pp. 60-61), a corporation holding only ecurities would not, in the absence of such a provision, be sub- ect to taxation in the Commonwealth. The reason that such a orporation would not be subject to taxation is that the value f its non-taxable securities would be deducted from the value f its franchise before the tax was computed. The reason for he deduction of the value of such securities is that the value epresented by them is otherwise taxed. The corporation hold- ag such securities indirectly bears the burden of such taxation, et the Legislature intended that such corporation should be iirectly taxed on its franchise, and to accomplish that purpose •rovided for the minimum limit. A corporation holding a aortgage on real estate taxable as real estate to the mortgagor i in a situation analogous to that of a corporation holding non- axable securities. By the same reasoning, it should not escape he payment of a franchise tax even if it indirectly bears the lurden of the tax assessed on its interest in the mortgaged real state.
Taxation — Towns — Assessors — Term of Office.
ince St. 1907, c. 579, § 1, providing in part that "each assessor in every city and town in the commonwealth . . . shall be elected or appointed for the term of three years . . . ," took effect on Jan. 1, 1908, there are no towns which may choose assessors for one year, as provided in St. 1907, c. 560, § 371.
You request my opinion as to whether the provision of St. com'j^iSk^ner. 907, c. 560, § 371, which authorizes towns to vote that select- November 2. len shall act as assessors, is still in force.
That section provides, in part: —
A town which chooses its assessors or overseers of the poor for one year lay, instead of electing such officers, provide by vote that the selectmen lall act also as assessors or as overseers of the poor, or both.
338 OPINIONS OF THE ATTORNEY-GENERAL.
St. 1907, c. 579, § 1, provides, in part, that: —
Each assessor in every city and town of the commonwealth, except in the city of Boston, shall be elected or appointed to hold office for the term of three years and until his successor is duly elected or appointed.
Section 2 provides that the act shall take effect on Jan. 1, 1908.
Since Jan. 1, 1908, therefore, there are no towns which choose their assessors for one year. There are, therefore, no towns which may provide by vote that the selectmen shall act as assessors.
Savings Banks — Legal Investments — Street Railway Company — Bonds — Dividend equal to Five Per Cent, for Five Years — Returns — Nine Months ending June 30, 1910 — Board of Railroad Commis- sioners — Certification.
The Board of Railroad Commissioners, under the provision of St. 1908, c. 590, § 68, sub-division fifth, that deposits and the income derived therefrom may be invested by savings banks "in the bonds of any street railway company . . . which has earned and paid in dividends in cash an amount equal to at least five per cent, upon all its outstanding capital stock in each of the five years last preceding the certification by the board of railroad commissioners herein- after provided for ; " and of St. 1909, c. 502, § 1, that the annual returns required by law to be made to such Board shall be returns for the year ending on the thirtieth day of June; and section 2, that subh returns for 1910 "shall cover the doings of street railway companies . . . for the preceding nine months only, and said period of nine months shall be deemed, under the pro\'isions of section sixty-eight of chapter five hundred and ninety of the acts of the year nineteen hundred and eight, sub-division Fifth, ... as one of the five years therein referred to, but the requirement that dividends equal to at least five per cent, upon all the outstanding capital stock of a street railway company shall have been earned and paid in cash in each of said five years, shall not apply to said period of nine months; and any street railway company which shall have earned and paid in dividends in cash an amount equal to five per cent, upon all its outstanding capital stock in each of the five preceding years with the exception of said nine months period, shall be included in the list to be certified and transmitted by the board," — may certify and transmit to the Sa\dngs Bank Commissioner the name of a street railway company which has paid dividends of 2 per cent, for the year ending Sept. 30, 1905, 5 per cent, for the years ending Sept. 30, 1906, 1907, 1908 and 1909, respec- tively, and 2 per cent, on common and 3 per cent, on preferred stock for the nine months ending on June 30, 1910.
^°RafiT?ad"*^ Your letter of November 23 requires my opinion upon the
comnussioners. construction of chapter 502 of the Statutes of 1909, which pro-
ovemjT . ^,jjgg^ jj^ section 1, that the annual returns required by law to
I DANA MALONE, ATTORNEY-GENERAL. 339
|e made to the Board of Railroad Commissioners shall be re- ' irns for the year ending on the thirtieth day of June, and
lall be transmitted to the Board on or before the thirtieth day
■ the following September.
Section 2 is as follows: —
The return required by the preceding section to be filed for the period • iding on the thirtieth day of June, in the year nineteen hiuidred and n, shall cover the doings of street railway companies and every person, •m, association or corporation doing an express business upon either a ilroad or railway in this commonwealth for the preceding nine months ily, and said period of nine months shall be deemed under the provi- Diis of section sixtj''-eight of chapter five hundred and ninety of the acts the year nineteen hundred and eight, sub-division Fifth, relative to the vestment of deposits, and the income derived therefrom, of savings inks in the bonds of street railway companies, as one of the five years lerein referred to, but the requirement that dividends equal to at least ve per cent upon all the outstanding capital stock of a street railway )mpany shall have been earned and paid in cash in each of said five 3ars, shall not apply to said period of nine months; and any street rail- ay company which shall have earned and paid in di\'idends in cash an naount equal to five per cent upon all its outstanding capital stock in ich of the five preceding years, with the exception of said nine months 3riod, shall be included in the Ust to be certified and transmitted by the
bard. The list required by the pro\asions of said section sixty-eight ) be certified and transmitted to the bank commissioner shall, after the
I assage hereof, be so certified and transmitted on or before the fifteenth ay of December in each year.
St. 1908, e. 590, § 68, sub-division fifth, which is referred to in le above section, provides that a savings bank may invest —
In the bonds of any street railway company incorporated in this com- lonwealth, the railway of which is located wholly or in part therein, ad which has earned and paid in dividends in cash an amount equal to : least five per cent upon all its outstanding capital stock in each of the ve years last preceding the certification by the board of raihoad commis- oners hereinafter provided for. No such investment shall be made nless said company appears from returns made by it to the board of lilroad commissioners to have properly paid said dividends without im- airment of assets or capital stock, and said board shall on or before the fteenth day of January in each year certify and transmit to the bank DHimissioner a Ust of such street railway companies.
340 OPINIONS OF THE ATTORNEY-GENERAL.
Dividends paid by way of rental to stockholders of a leased street railway company shall be deemed to have been earned and paid by said company within the meaning of this clause, provided that said company shall have annually earned, and properly paid in dividends in cash, with- out impairment of assets or capital stock, an amount equal to at least five per cent upon all its outstanding capital stock in each of the five fiscal years next preceding the date of the lease thereof.
If two or more street railway companies have been consohdated by purchase or otherwise during the five years prior to said certification, the payment severally from the earnings of each year of dividends equivalent in the aggregate to a dividend of five per cent on the aggregate capital stocks of the several companies during the years preceding such con- solidation shall be suflEicient for the purpose of this act.
Your letter states that a street railway company has paid dividends of 2 per cent, for the year ending Sept. 30, 1905, 5 per cent, for the year ending Sept. 30, 1906, 5 per cent, for the year. ending Sept. 30, 1907, 5 per cent, for the year ending Sept. 30, 1908, 5 per cent, for the year ending Sept. 30, 1909, and 2 per cent, on common stock and 3 per cent, on preferred vStock for the nine months ending on June 30, 1910.
Your inquiry is as follows : —
Assuming that said company appears, from returns made by it to the Board of Railroad Commissioners, to have annually earned and properly paid said dividends without impairment of assets or capital stock, is it lawful for the Board to certify and transmit to the Bank Commissioner the said company as a street railway company entitled to have its bonds a legal investment for savings banks?
Upon the facts submitted, I am of opinion that the company to which you refer is within the requirements of section 2 of chapter 502 of the Statutes of 1909, and that the Board may properly certify and transmit to the Bank Commissioner the name of such company as a street railway company entitled to have its bonds a legal investment for savings banks, in accord- ance with the provisions of law already cited. The apparent purpose of such section is to provide that, while the period of nine months ending on June 30, 1910, and covered by the re- turn which is provided for, is to be counted as one year in
DANA MALONE, ATTORNEY-GENERAL. 341
determining whether or not a street railway company may be ertified in accordance with the provisions of St. 1908, c. 590, 68, sub-division fifth, the requirement with respect to divi- ends is not to be appHed to such period of nine months; or, 1 other words, if the requirement with respect to dividends has een compUed with by a street railway company in four years, icluded within a period of five consecutive years, of which one hall consist of the nine months ending on June 30, 1910, such ompany shall be included in the list to be certified and trans- litted by the Board of Railroad Commissioners. It has been Liggested that, so construed, the provision is applicable only to ompanies which have already completed a period of five years uring which dividends have been earned and paid equal to at ?ast 5 per cent, upon all their outstanding stock; and that so luch of the section as provides that
ay street railway company which shall have earned and paid in dividends 1 cash an amount equal to five per cent upon all its outstanding capital :ock in each of the five preceding years, with the exception of said nine lonths period, shall be included in the list to be certified —
equires all companies which have not already paid the neces- ary dividends for five years to pay such dividends for five full ears during a period of five years and nine months, which also icludes the nine months ending on June 30, 1910. I am nable to appreciate the distinction so created, however, and m of opinion that the language quoted is to be taken in onnection with the earlier provision, that such nine-months eriod is to be construed, for the purpose of St. 1908, c. 590, 68, sub-division fifth, as one year during which street railway ompanies are not required to earn and pay in cash a 5 per cent, ividend, and is merely declarative of the authority of the >oard to certify and transmit a list of the companies which omply with the provisions of the section.
342
OPINIONS OF THE ATTORNEY-GENERAL.
To the Director of the Bureau of Statistics.
1910 December 22.
Towns — Issue of Notes — Demand Notes — Town Treasurer.
St. 1910, c. 61G, § 1, providing that each note issued by a town shall state "the date when it shall become due for payment," and R. L., c. 27, § 6, providing that loans in anticipation of taxes shall "be payable within one year after the date of their incurrence," do not prohibit the issue by the town of a note payable on demand.
A town note may not, under the provisions of St. 1910, c. 616, § 1, be made payable to the town treasurer.
I have your letters of the 15th inst., in which you make cer- tain inquiries in regard to town notes.
You inquire whether a town may legally issue a note payable on demand, and especially if it may issue a note payable on demand to obtain money in anticipation of taxes. This inquiry is made in view of the fact that St. 1910, c. 616, § 1, provides that each note shall state " the date when it will become due for payment," and of the fact that R. L., c. 27, § 6, requires that loans in anticipation of taxes shall "be payable within one year after the date of their incurrence." In reply to this inquiry, I advise you that, in my opinion, a town may legally issue a note payable on demand to obtain money in anticipation of taxes. Such a note is due at once for purposes of suit by the holder against the maker, and the statute of limitations begins to run at once. See Fenno v. Gay, 146 Mass. 118. The maker may make payment at once, without demand by the holder. See Stover v. Hamilton, 21 Gratt. (Va.) 273. A statement that such note is due "on demand" is, therefore, in compliance with the statutory requirement that it state "the date when it will become due for payment." For the same reason, such a note is in compliance with the statutory requirement that a loan in anticipation of taxes must "be payable within one year after the date of their [its] incurrence." i
You also inquire whether a town note may be made payable to the town treasurer, or to the town treasurer or order. This inquiry is made in view of the fact that St. 1910, c. 616, § 1, requires that a town note shall state "the date of issue," and that "a record of every note so issued shall be kept by the
I
DANA MALONE, ATTORNEY-GENERAL. 343
treasurer of the town," and that, if the Director of the Bureau of Statistics "finds that the note appears to have been duly issued," etc., he shall so certify. In reply to this inquiry I ad- vise you that, in my opinion, a town note may not be made payable to the town treasurer, or to the town treasurer or order. Such a note is in effect payable to the town; in other words, the maker and the payee named in the body of the instrument are the same. Consequently, it is not issued until indorsement by the treasurer. See Little v. Rogers, 1 Met. 105; Moses v. Law- rence County Bank, 149 U. S. 298, 302; R. L., c. 73, § 207. "The date of issue" of such note is, therefore, the date of in- dorsement. No record of the issuing of the note, and no certi- fication thereof, in accordance with the requirements of the statute, can be made until after such indorsement. The record and the certification cannot properly be made after indorse- ment, since in the form for the note prescribed by you under statutory authority it is contemplated that the note shall be complete upon its face.
344
OPINIONS OF THE ATTORNEY-GENERAL.
OPINIONS
JAMES M. SWIFT, ATTOENEY-GENEEAL.
To the
Adjutant General.
1911 January 19.
Armories — Use for Public Purposes — Rallies of Polit- ical Parties and Meetings for the Discussion of Public Questions.
Under the provision of St. 1908, c. 604, § 140, that "armories . . . shall not be used except by the organized militia for such military purpose or purposes incidental thereto as may be designated by the commander-in-chief: provided, however, that the commander-in-chief, upon terms and conditions to be prescribed by him and upon an application approved by the military custodian of an armory . . . may allow the temporary use of such armory for public purposes," an armory may be used for rallies of political parties or meetings for the discussion of questions of public policy which are of interest or benefit to the community at large.
In your communication of January 16' you state that you are directed by His Excellency the Governor to request a written opinion from the Attorney-General upon the question whether or not State armories may be used for rallies of political par- ties and for meetings for the discussion of questions of public policy.
St. 1908, c. 604, § 140, is as follows: —
Armories provided for the miUtia shall not be used except by the or- ganized militia for such military purpose or purposes incidental thereto as may be designated by the commander-in-chief: provided, hoivever, that the commander-in-chief, upon terms and conditions to be prescribed by him and upon an application approved by the military custodian of an armory provided in any city or town for the militia, may allow the tem- porary use of such armory for public purposes. The compensation fixed by the commander-in-chief for every such temporary use shall be paid to the treasurer and receiver general within ten days after the occupation of
JAMES M. SWIFT, ATTORNEY-GENERAL. M5
he armory for such temporary use ceases, accompanied by the certificate )f the quartermaster-general that the sum so paid is the correct amount ; ind all moneys so received shall be paid into the treasury of the common- t'ealth.
In an opinion dated Nov. 14, 1907, my predecessor advised he Adjutant-General that —
A consideration of these statutes shows that it was the intention of
he Legislature to permit a qualified and restricted use of armories for
lurposes other than military purposes. The term "public purposes,"
,s used in the existing law, must be taken to impart a still wider use than
I irimarily permitted, although the Legislature has not defined its limits.
I t is a matter of some difficulty to arrive at a satisfactory definition of the
j /ords "public purposes" as used in said act. The word "pubUc" is
iefined by the Century Dictionary to mean "open to all the people,
hared in or to be shared or participated in or enjoyed by people at large;
lot Umited or restricted to any particular class of the community;" and
here is nothing in the statute under consideration which shows an inten-
ion of the Legislature to give to it any new meaning or to change the
ignification which is given to the word in ordinary speech.
I am of opinion, however, that, speaking generally, the words "public lUrposes" are intended to mean some purpose Vv^hich is of general interest T benefit to the community at large, to which any person who desires oay obtain admission, either with or without the pajanent of a reason- ,ble fee.
In this conclusion I concur, and am of opinion that meetings )f political parties which are of general interest to the commu- lity at large and to which any person who desires may obtain idmission, as well as meetings of like character for the discus- -ion of questions of public policy, are public purposes within the )rovisions of St. 1908, c. 604, § 140, above cited.
You further inquire "whether or not the Governor, as Com- nander-in-Chief, may allow the temporary use of armories for iueh purposes without charge." By reason of the provision that 'the compensation fixed by the commander-in-chief for every meh temporary use shall be paid to the treasurer and receiver general within ten days after the occupation of the armor \- for Hich temporary use ceases, accompanied by the certificate of the quartermaster general that the sum so paid is the correct
346
OPINIONS OF THE ATTORNEY-GENERAL.
amount, and all moneys so received shall be paid into the treas- ury of the commonwealth," I am of opinion that the statute does not contemplate that such use should be permitted with- out compensation therefor to the Commonwealth.
You further submit for my consideration an instruction, in- tended to be given to custodians of armories, as follows : —
The use of the drill sheds of armories for rallies of political parties or meetings for the discussion of questions of pubhc policy is a public pur- pose.
You inquire whether or not such instruction is in accordance with the existing laws. With the qualification that rallies of political parties or meetings for the discussion of questions of public policy are such as to be of general interest or benefit to the community at large, I am of opinion that the instruction which you quote in substance agrees with existing laws.
Annual Appropriations — Statements of Amounts re- quired FOR THE Ensuing Fiscal Year — Governor and Council — Verification of Estimates — Examination AND Audit of Books of Account.
St. 1910, c. 220, § 1, requiring that every ofBcer or board having charge of any department, institution or undertaking which receives an annual appropria- tion from the treasury of the Commonwealth, shall annually submit to the Auditor statements in detail showing the amounts appropriated for the current fiscal year and required for the ensuing fiscal year, and that the Auditor shall combine such statements with a like statement relating to his own department in one document, to be printed and submitted on or before the first Thursday in January to the Governor and Council for examination, and by the Governor transmitted to the General Court with such recommenda- tions as he may deem proper, does not confer upon the Governor and Council, or upon the Governor alone, any new or additional authority to examine, for the purpose of verifying or otherwise investigating such statements, the expenditures or books of accounts of, or to prescribe for such purpose the method of accounting which shall be used by, any State officer or board.
You have orally required my opinion upon the question of
To the Governor and
"^You- your authority, under the provisions of St. 1910, c. 220, to
anuatr 21. verify or to make investigation with reference to the estimates
submitted to you by officers or boards having charge of any
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 347
i iepartment, institution or undertaking which receives an innual appropriation of money from the treasury of the Com- nonwealth in accordance with such provisions, by examining md auditing the books and accounts or prescribing the methods )f accounting of such officers or boards. The statute to which you refer is as follows: —
Section 1. Every officer or board having charge of any department, nstitution or undertaking which receives an annual appropriation of ixoney from the treasury of the commonwealth, including annual appro- priations to be met by assessments, shall, annually, on or before the ifteenth day of November, submit to the auditor of the commonwealth statements in detail showing the amount appropriated for the current iscal year and the amounts required for the ensuing fiscal year, with an explanation of the reason for any increased appropriation, and with cita- tions of the statutes relating thereto, and with a statement of the expendi- tures for the current year and for each of the next preceding two years. The said estimates shall not include any estimates for special purposes or objects. The auditor of the commonwealth shall embody the said statements, with a like statement relating to his own department, in one document, which shall be printed, and shall be submitted on or before the first Thursday in January of each year to the governor and council for examination, and the governor shall transmit the same to the general court with such recommendations, if any, as he may deem proper. The auditor shall also submit his estimates for the ensuing fiscal year for the ordinary and other revenue of the commonwealth which shall be made a part of the document herein provided for. Copies of the document shall be distributed to the members of the general court.
Section 2. Officers, heads of departments, boards, commissions and trustees of institutions, who, in their annual reports, or otherwise, recom- mend appropriations from the state treasury for special purposes or objects, including appropriations to be met by assessments in addition to the ordinary running expenses, shrll submit estimates thereof in detail to the auditor of the commonwealth on or before the fifteenth dpy of November in each year, and he shall classify them and embody them in one docu- ment which shall be printed, and shall be submitted on or before the fu-st Thursday in January of each year to the governor and coimcil for exam- ination, and the governor shall transmit the same to the general court with such recommendations, if any, as he may deem proper. He shall make recommendation as to "how much should be raised by the issue of bonds and how much should be paid out of cm-rent revenue. Copies of the document shall be distributed to the members of the gcnerid court.
348 OPINIONS OF THE ATTORNEY-GENERAL.
Section 3. The plans, estimates and specifications made in ?ccord- ance with the provisions of chapter five hundred and twenty of the acts of the year nineteen hundred and seven, or of amendments thereof, relat- ing to any improvement described in either of the documents aforesaid, shall at the same time be submitted to the governor and council.
Section 4. The auditor shall furnish to the governor and council such further information in regard to the revenue, expenditures and other financial operations of the commonwealth, and in such form as the gov- ernor may require.
Section 5. The governor may, in his discretion, transmit to the general court from time to time, with his recommendations, if any, thereon, ■ particular items in either of the said documents, and may withhold other items for further investigation.
Section 6. Section twenty-six of chapter six of the Revised Laws, as amended by section six of chapter two hundred and eleven of the acts of the year nineteen hundred and five and section five of chapter five hundred and ninety-seven of the acts of the year nineteen hundred and eight, and all acts and parts of acts inconsistent herewith, are hereby repealed.
Section 7. This act shall take effect upon its passage.
It is to be observed that this statute provides that the Auditor shall in the first instance receive the estimates of State officers and boards and transmit them to the Governor and Council for examination, together with estimates for ordinary and other revenue of the Commonwealth made by him, and that the only power vested in the Governor with respect to such estimates is that of making such recommendations as he may deem proper. It is also made the duty of the Auditor to furnish to the Governor and Council further information in connection with such estimates regarding the revenue, expendi- tures and other financial operations of the Commonwealth in such form as the Governor may require.
I am of opinion that this statute does not confer upon the Governor and Council, or upon the Governor alone, any new or additional right to examine the expenditures or books of account of, or to prescribe the method of accounting which shall be used by, any State officer or board for the purpose of verifying or otherwise investigating the estimates so required. It is already provided by St. 1908, c. 597, § 4, that —
!
JAMES M. SWIFT, ATTORNEY-GENERAL. 349
I Under the direction of the auditor, the supervisor of accounts shall j iirect and control all the accounts in all departments, and shall have full liuthority to prescribe, regulate and make changes in the methods of } ceeping and rendering accounts, and shall see that they are properly naintained, and that all items are correctly allocated between capital •eceipts and disbursements and operating revenue and expense. He ihall establish in each department a proper system of accounts, which ihall be uniform so far as is practicable. He shall estabhsh a proper iystem of accounting for stores, supplies and materials, and maj^ provide, vhere he deems it necessary, for a continuing inventory thereof. He nay inquire into the methods of purchasing and handling such stores, lupplies and materials by the departments, reporting to the auditor such ihanges as may in his judgment be deeme^ wise. He shall provide such lafeguards and systems of checking as will insure, so far as is possible, the )roper collection of all revenue due the commonwealth; and, where he ieems it necessary, shall provide that forms and receipts shall be num- bered consecutively, making the departments responsible for their use )r cancellation;
md by section 6 that —
"UTienever the word "departments" occurs in this act it sh.dl be under- stood to include all departments, boards, commissions, institutions and Dfl&ces of the commonwealth which incur expense or to which income iccrues, unless the context requires a different interpretation.
Under these provisions of law the Auditor is given full au- thority to prescribe, regulate and make changes in the methods of keeping or rendering accounts in all State departments, boards, commissions and offices, and to see, by audit or other- wise, that they are properly maintained; and there is nothing in the language of St. 1910, c. 220, to warrant a conclusion that by its enactment the Legislature intended to supersede or modify the authority of the Auditor under the statutes above cited by conferring upon the Governor and Council any super- vision or control of public expenses or the methods of account- ing therefor. Upon the contrary, it is the obvious intention of the latter statute that the estimates furnished to the Governor and Council in accordance with its requirements should be fur- nished through the Auditor, and that any additional informa-
350 OPINIONS OF THE ATTORNEY-GENERAL.
tion which may be required in the premises should be supplied by him (§4).
The general power of the Governor and Council to investi- gate the expenditures of State officers, boards or commissions was made the subject of an opinion by my predecessor to His Excellency the Governor, dated April 26, 1909 {ante, p. 226), in which it was stated that —
The Governor and Council may at any time examine such bills and vouchers in the Auditor's department, and thus familiarize themselves with the expenditures of the Commonwealth as much as they wish. They may take such measures as they see fit to ascertain that the money ap- propriated for the various institutions in the Commonwealth is being ex- pended in the manner intended by the Legislature, and may make such personal investigation at the institutions themselves as may be necessary to make sure that this is being done; but they have no right to say that the money appropriated by the Legislature shall not be expended in the way authorized by it. There are various departments under the immediate supervision of the Governor, and in such departments it is his duty to see that the money appropriated is properly expended therein. There are other departments in which it is the duty of the head of such departments to see that the money appropriated is properly expended, and for which the Governor is not responsible, and in which he has no authority except so far as may be necessary to see that the warrants are drawn in accord- ance with the appropriations authorized by the Legislature. Should the Governor and Council be of opinion that the finances of any institution are not being properly and economically expended, the remedy would be by removal of the trustees or other officers over whom they have authority, in accordance with the statutes in such case made and provided. To this extent, under the Constitution and law of the Commonwealth the Governor and Council have authority to investigate the expenditures of any department, and to familiarize themselves as much as they see fit with any of the expenditures of the Commonwealth.
I am, therefore, forced to the conclusion that, in the investi- gation of the estimates submitted to the Governor and Council, under the provisions of St. 1910, c. 220, the Governor and Council are not authorized to audit the books or accounts of any officer or board whose estimates are before them for considera- tion, or to prescribe any method of accounting to be followed by such officer or board, and that such information as may be
JAMES M. SAVIFT, ATTORNEY-GENERAL. 351
equired with respect to matters of finance, in addition to that uppHed by the estimates themselves, is to be furnished by the luditor in such form as the Governor may require.
'iviL Service Commission — City of Boston — Appoint- ment TO Office — Investigation — Public Records.
a the performance of the duties required by St. 1909, c. 486, § 10, that the Civil Service Commission shall make a careful inquiry into the qualifications of a nominee for ofnce in the city of Boston, under such rules as they may, with the consent of the Governor and Council, establish, such commission act in a special and limited capacity under the authority of that section alone, i and they are not controlled by the general pro-\dsions relating to civil service,
in R. L., c. 19, and in the rules formulated thereunder.
setters and other memoranda received by the Civil Ser^^ce Commission in the course of the investigation provided for in St. 1909, c. 486, § 10, are not received, and are not required to be received, for filing within the meaning of R. L., c. 35, § 5, providing that the words "public records" shall mean "any written or printed book or paper, any map or plan of the commonwealth or of any county, city or town which is the property thereof and in or on which any entry has been made or is required to be made by law, or which any officer or employee of the commonwealth or of a county, city or town has received or is required to receive for filing;" and they are not, therefore, pubUc records as therein defined.
i member of the Legislature has no greater right to inspect letters or papers which are in the possession of the commission but are not public records, than has any other member of the pubUc.
, By the provisions of section 10 of chapter 486 of the Statutes To the
\ e tt A - ' • • p 1 • e Civil Service
)f 1909, An act relating to the administration of the city of Commission. Boston and to amend the charter of the said city," certain January 28. Iluties with respect to the appointment of heads of depart- nents and members of municipal boards in the city of Boston .vere vested in the Civil Service Commission upon the receipt of I certified copy of a certificate of appointment from the mayor n the form provided in such section : —
The commission shall immediately make a careful inquiry into the lualifications of the nominee under such rules as they may, with the ionsent of the governor and council, establish, and, if they conclude :hat he is a competent person with the requisite qualifications, they shall lie with the city clerk a certificate signed by at least a majority of the iommission that they have made a careful inquiry into the qualifications 3f the appointee, and that in their opinion he is a recognized expert, or
352 OPINIONS OF THE ATTOKNEY-GENERAL.
that he is quahfied by education, training or experience for said office, as the case may be, and that they approve the appointment. ... If the commission does not within thirty days after the receipt of such notice file said certificate with the city clerk the appointment shall be void.
In the performance of these duties the Civil Service Commis- sion have formulated certain regulations which, so far as mate- rial, are : —
2. Upon receipt of the said copy of certificate of appointment the Civil Service Commission shall make such inquiry concerning the train- ing, experience, character and qualifications of the appointee as it judges necessary.
3. Upon request from the Civil Service Commission, the mayor shall furnish to it such information as it may call for relating to the age, resi- dence, experience, training, character and qualifications of the appointee; and he shall forward to it any and all correspondence, papers, petitions, recommendations and protests in his possession relating to the appointee, all of which shall be returned to the mayor within thirty days after re- ceipt from the city clerk of said copy of certificate of appointment.
The city council and city clerk of Boston, and all commissioners and commissions appointed by the Governor, shall, upon request from the Civil Service Commission, furnish to it such information as it may call for relating to the age, residence, experience, training, character and qualifi- cations of the appointee.
In connection with the careful inquiry which is required by the statute the commission have invited communications, both oral and in writing, with reference to persons appointed under the provisions of St. 1909, c. 486, § 9, and, as you state in your letter, " have, in fact, used many sources of information — data furnished in writing by the mayor or by the appointee; personal conferences at the State House by the commission with the ap- pointee and with other citizens; personal investigation by the individual commissioners; testimony of sworn witnesses taken at the State House by the commission; official city and State reports and other documents; reports and notes made by agents and inspectors employed by the commission; letters writ- ten to the commission voluntarily by various citizens; letters written by citizens in response to letters of inquiry sent out by
JAMES M. SWIFT, ATTORNEY-GENERAL. 353
lie commission; letters written by citizens presumably in re- Donse to a general invitation to the public made by the com- lission in a notice issued to the press April 6, 1910." The Dtice to which you refer was as follows: —
April 6, 1910.
In order that the Civil Ser^^ce Commission may fulfill in tlic most
I )mplete manner possible the duty imposed upon it by chapter 486 of
le acts of 1909 in making "the careful inquiry" therein required into
le qualifications of nominees for the positions of heads of departments,
id in order that no injustice may be done to any nominee, or to the
ayor of the city of Boston, or to the public, by reason of the failure on
1 18 part of the commission to receive the fullest information, the com-
I ission hereby issues this formal notice that information as to the qualifi-
1 itions of a nominee presented to the commission at its office in the
;ate House by any one, in person, or in writing over his signature, will
; considered in the investigation which the commission will undertake
ider the rules framed by it and approved by the Governor and Council.
You further advise me that a request in writing has been lade by a member of the present Legislature, in the form fol- 'wing: —
So that your Board may have a definite request before you in writing, respectf uUy submit the f ollowmg : — •
As a member of the Legislature of 1911, and for the pm-pose of obtain- g accurate information relating to a matter of legislation before said )dy, I desire to examine at your office at the State House, in the presence ■ the secretary of the Board, aU the letters, petitions, communications, ^commendations for and against the certification of Morris L. Morrison •• a member of the board of assessors, and Joseph P. Lomasney as a ember of the board of health of the city of Boston.
A further request was thereafter made by the said member lat the matter be referred ■ to the Attorney-General, and in ?cordance therewith the Civil Service Commission submitted •r the decision of the Attorney-General the following specific uestions : —
(1) Are such letters and papers, described as above, "records of their oceedings" or "recommendations of apphcants received by them or
354 OPINIONS OF THE ATTORNEY-GENERAL.
by any officer authoi-ized to make appointments, or to employ laborers or others within the scope of such rules," within the meaning of R. L., c. 19, § 5, and such as are under that statute requh-ed "to be preserved" and "to be open to public inspection?"
(2) Are such letters and papers "public records," within the definition prescribed in R. L., c. 35?
(3) Are the commissioners under obligation by law to allow an individual member of the Legislature to inspect such letters and papers?"
On January 20, in accordance with a request of the said member, a hearing was given by me, at which the Civil Service Commission was represented by its secretary, and the said member was fully heard upon all the questions raised by his original communication to the Civil Service Commission and by the inquiries of the commission as above quoted. To his state- ments and arguments I have given most careful consideration. Upon so much thereof as was addressed to the propriety of per- mitting an examination of letters or documents in the nature of evidence for or against persons appointed to office under the provisions of St. 1909, c. 486, § 9, which may be in the posses- sion of the Civil Service Commission, as a matter of policy or fairness I cannot assume to pass except in so far as such con- siderations are involved in the construction of the statutesi which are applicable in the premises.
Replying specifically to the questions of the Civil Service Commission, therefore, my opinion is as follows : —
(1) R. L., c. 19, § 5, provides that the commission —
shall keep records of their proceedings and of examinations made by them or under their authority. Recommendations of applicants received by them or by any officer authorized to make appointments or to employ laborers or others, within the scope of such rules, shall be preserved. Such records and recommendations shall, under regulations approved by the governor and council, be open to pubhc inspection.
This provision of law is found in the general statute whicl" provides for the "selection of persons to fill appointive positions in the government of the commonwealth and of the severa
JAMES M. SWIFT, ATTORNEY-GENERAL. 355
nties thereof and the selection of persons to be employed as aborers or otherwise in the service of the commonwealth and ,aid several cities" (section 6), under rules prepared by the commission and approved by the Governor and Council, which nclude —
The classification of the positions and employments to be filled.
Open competitive and other examinations to test the practical fitness if applicants.
The filling of vacancies in and the selection of persons for public posi- ions and emplojanents in accordance with the results of such examinations, ir in the order of application, or otherwise.
Promotions, if practicable, on the basis of ascertained merit in the xamination and seniority of service.
A period of probation before an appointment or employment is made )ennanent.
Preference to veterans in appointment and promotion.
It is clear that in the performance of the duties required by he provisions of St. 1909, c. 486, § 10, hereinbefore quoted, he commission act in a special and limited capacity, under the luthority of that section alone. They are not to be controlled )y the general provisions relating to civil service, which are to )e found in R. L., c. 19, and in the rules formulated there- mder, (See section 9.) The provisions of R. L., c. 19, § 5, herefore, have no application to the proceedings of the com- nission under St. 1909, c. 486, § 10.
(2) R. L., c. 35, § 5, defined the words "public records" as oUows : —
In construing the provisions of this chapter ?nd other statutes, the vords "pubhc records" shall, unless a contrary intention clearly appears, nean any \\Titten or printed book or paper, any map or plan of the com- nonwealth or of any county, city or town which is the property thereof i.nd in or on which any entry has been made or is required to be made )y law, or which any oflacer or employee of the commonwealth or of a •ounty, city or town has received or is required to receive for filing, and tny book, paper, record or copy mentioned in the six following sections, fhe word "record" shall, in this chapter, mean any Amtten or printed )ook, paper, map or plan.
356 OPINIONS OF THE ATTORNEY-GENERAL.
Speaking of this section, in an opinion dated Sept. 22, 1902 (2 Op. Atty.-Gen. 381), the Attorney-General stated that —
This legislative definition cannot be held to include within its intention every paper which an officer of the Commonwealth receives and files. It must be Umited to such as he is required by law to so receive for filing. Any other construction must be prejudicial to the rights and interests of the Commonwealth or its officers, and, indeed, of parties or persons making communications with such officers.
And see ante, p. 136. This section has been construed and this view has been confirmed in the case of Round v. Police Commissioner, 197 Mass. 218, where, at page 220, the court say: —
The petitioner contends that such a paper, returned to the Licensing Board, is a public record under the R. L., c. 35, § 5, because it is a paper which an officer of the city has received or is required to receive for filing. An examination of this section shows that it relates to books, papers and maps which are intended for the use of the public. We are of opinion that the returns by pawnbrokers are not papers received for filing. There are statutes which require that certain papers be filed in the office of the city or town clerk, or in some registry, for inspection by all persons interested. Such papers are "received for filing" within the meaning of the statute; but the statute as to returns, by pawnbrokers makes no provision for filing. The licensing boards may preserve them in such a way as they choose.
While the facts in the two cases are not identical, I am bound to follow the construction therein declared. To make any letter, paper or document in the possession of the Civil Service Commission a "public document" within the meaning of R. L., c. 35, § 5, therefore, the commission must have re- ceived or must be required to receive such letter, paper or docu- ment for filing under the terms of some particular statute. Xo such requirement is to be found in St. 1909, c. 486, § 10. The commission are broadly authorized to "make a careful inquiry into the qualifications of the nominee under such rules as they may, with the consent of the governor and council, establish, and, if their conclusion is favorable to such nominee, they are
JAMES M. SWIFT, ATTORNEY-GENERAL. 357
equired to file with the city clerk a certificate to that effect. ?his inquiry is to be governed only by their discretion and by uch rules as, with the consent of the Governor and Council, hey may adopt for their own guidance.
The rules so far adopted, which I have already quoted, do ot in my opinion require the filing of any letter, paper or docu- Qcnt by the commission. They do, in rule 3, require the aayor to forward to the commission "any and all correspon- ience, papers, petitions, recommendations and protests in his lossession relating to the appointee," and they provide for the eturn of the same, after the commission have reached a de- ision, but this provision has no bearing upon like documents ddressed to and received by the commission in the course of heir inquiry, and, so far as it is material at all, suggests an ntent that such matters should not be retained and filed by he commission.
I am therefore constrained to conclude that the letters and >ther memoranda to which your inquiry is directed are not re- vived for filing, and are not required to be filed, by any law vhich has been called to my attention. They are received by he commission in connection w^ith the specific duties required )y the provisions of St. 1909, c. 486, § 10, for the purpose of tiding the commission in the performance of those duties. The ;ommission are not required to receive or to retain and pre- serve them; and they are retained and preserved, if at all, only or the information or convenience of the commission. Since hey are not received and are not required to be received for iling, within the meaning of R. L., c. 35, § 5, they are not )ubhc records as defined in that section.
(3) A member of the Legislature, as such, has no greater 'ight to inspect letters or papers which are in the custody of he commission, but are not public records, than has any other nember of the public, and his individual rights are to be meas- ired by those of the public generally.
358
OPINIONS OF THE ATTORNEY-GENERAL.
To the
Adjutant
General.
1911 February 3.
Volunteer Militia — Aemory Commission
OF Armories.
Construction
The duty of the armory commission, under the provision of St. 1908, c. 604, § 133, as amended by St. 1909, c. 323, § 1, that "if in their judgment the needs of the service demand it, subject to the approval of the commander-in-chief, . . . shall construct armories, not exceeding three yearly, until the volunteer militia shall be provided with adequate quarters," is to construct armories until the volunteer militia are provided with adequate quarters, subject to the limitation that there shall not be under construction in any one year more than three such armories.
Relative to the construction of St. 1908, c. 604, § 133, as amended by St. 1909, c. 323, § 1, which, so far as material, is as follows : —
The armory commissioners shall rebuild, remodel or repair armories of the first class which have been injured or destroyed by fire, and may reconstruct, remodel, enlarge or otherwise improve existing state armories, if in their judgment the needs of the service demand it, subject to the approval of the commander-in-chief, and, in addition, shall construct armories, not exceeding three yearly, until the volunteer militia shall be provided with adequate quarters.
you submit the following questions for my opinion: —
1. Must the armory commission build any armories?
2. Must they build from one to tliree ?
3. Must they build three each year?
Assuming that to the first and second questions should be added the word "yearly," I understand your inquiry is in sub- stance to require my opinion upon the duties of the commis- sioners with respect to the construction of armories in any given year.
The duty of the commission seems to be plain. They are to "construct armories . . . until the volunteer militia shall be provided with adequate quarters." The provision that they shall not construct more than three of such armories yearly is a limitation upon this duty. Except for this limitation the matter is in the discretion of the commission, and if they in good faith construct armories as rapidly as possible for the
JAMES M. SWIFT, ATTORNEY-GENERAL. 359
ccommodation of the volunteer militia they are not required 1 any one year to begin the construction of either one, two or hree new armories. I am of the opinion that the limitation bove referred to means that the commission shall not have nder construction in any one year more than three such rmories.
.iCENSE — Keeper of Hospital for Care of Insaxe and Feeble-minded — Suitable Person — Resident or Con- sulting Physician.
Inder the provisions of St. 1909, c. 504, § 24, that "the governor and council may, upon the recommendation of the state board of insanity, license any suitable person to establish and keep a hospital or private house for the care and treatment of the insane, epileptic, feeble-minded, and persons addicted to the intemperate use of narcotics and stimulants," a physician who is employed by the owner or owners of such hospital or private house as resident physician in charge, or who is on the staff of consulting physicians connected therewith, is not a suitable person to receive such license.
You have requested my opinion in regard to the provisions to the state )f section 24 of chapter 504 of the Acts of the vear 1909, insanity.
Vnich IS as follows: February 8.
The governor and council may, upon the recommendation of the state Doard of insanity, license any suitable person to establish and keep a lospital or private house for the care and treatment of the insane, epileptic, "eeble-minded, and persons addicted to the intemperate use of narcotics 3r stimulants, and may at any time revoke such license. No such recom- mendation shall be made unless the said board is satisfied that the person ipplying therefor is a duly qualified physician, as provided in section thirty-two, and has had practical experience in the care and treatment Df such patients. Any person owning or maintaining such a hospital or private house on the date of the passage of this act shall be entitled to maintain the same under the provisions of law in force at that time, except that every such hospital or house shall be subject to the visitation and supervision of the state board of insanity.
Your specific inquiries are as follows: —
1. Is a physician, who is employed by the owner or owners as resident physician in charge, on a salary or for a share in the profits, a proper person to be granted a Hcense under this section?
360
OPINIONS OF THE ATTORNEY-GENERAL.
2. Is a physician, who is not in chai-ge of or residing in such a hospital or private house and who has no pecuniary interest in the business, but who is on the staff of consulting physicians, a proper person to be granted a license under tliis section?
In my opinion it is contemplated by the statute that a license "to establish and keep a hospital or private house for the care and treatment of the insane, epileptic, feeble-minded, and per- sons addicted to the intemperate use of narcotics or stimu- lants," shall be granted only to a person who is to be the re- sponsible head of such hospital or private house, that is, "to one who exercises control or proprietorship" of it. Cf. Com- monwealth V. Kimhall, 105 Mass. 465, 467. On this view of the law it is obvious that the answer to your second inquiry must be in the negative. Your jfirst inquiry raises a more diffi- cult question, but in my judgment it must be answered in the same way. The "physician who is employed by the owner or owners as resident physician in charge" is not the responsible head of the hospital or private house in such a sense as to en- title him to be licensed.
To the Controller of County Accounts.
1911 March 3.
County Treasurer — Salaries of Clerks of the Court, County Commissioners and County Treasurer — In- creased Population — Readjustment.
Further legislative authority is required before a county treasurer may lawfully pay increased salaries to the clerks of the courts, the county commissioners and the county treasurer upon the basis of increased population as determined by St. 1904, c. 451, § 1.
By your letter of February 2 you request my opinion upon the construction to be given to St. 1904, c. 451, "An Act relative to the salaries of clerks of the courts, county commis- sioners and county treasurers," in which it is provided, in sec- tion 1, that —
The counties of the commonwealth, for the purpose of establishing the salaries of clerks of the courts, county commissioners and county treasurers, are hereby divided into nine classes, according to the following
JAMES M. SWIFT, ATTORNEY-GENERAL. 361
able; and the annual salaries of the clerk of the courts, county commis- ioners and county treasurer, in full for aU services performed by them, or each county in a class, shall be as therein specified, paj^able by the aid county in monthly instalments.
Chen follow nine classes, A, B, C, D, E, F, G, H and I, of ^^hich classes A and D may be taken as examples.
Class A. Counties having a population of less than fifteen thousand, 0 mt, the counties of Nantucket and Dukes County; salaries: — Clerk 'f the courts, six hundred dollars; commissioners (Nantucket, none), our hundred dollars; treasurer (Nantucket, none), three hundred dollars.
Class D. Counties having a population of from sixty thousand to linety thousand, to wit, none; salaries: — Clerk of the courts, twent)^- our hundred dollars; commissioners, twenty-two hundi-ed dollars; treas- irer, eleven hundred dollars.
The precise question upon which you desire to be advised is vhether or not the county treasurer, upon being satisfied by )fficial information of the result of the latest census, is author- zed to pay to the clerks of the courts, the county commission- ers and to himself as county treasurer, salaries under the next ligher class in any case where the census shows that a county las gained sufficiently in population to be taken from the class Dclow and placed therein.
The act to which you refer forms one of five statutes passed n 1904; the other four being chapter 452, "An Act to establish :he salaries of registers of deeds and assistant registers of deeds;" chapter 453, "An Act to establish the salaries of the justices, clerks and assistant clerks of certain police, district :ind municipal courts;" chapter 454, "An Act to establish the salaries of the chief justice, associate justices, clerks and as- sistant clerks of the municipal court of the city of Boston;" and chapter 455, "An Act to establish the salaries of the judges, registers and assistant registers of probate." Chapter 452, rela- tive to the salaries of registers of deeds and assistant registers of deeds, provides, in section 1, that "registers of deeds shall receive annual salaries based upon the following scale," and
362 OPINIONS OF THE ATTORNEY-GENERAL.
establishes three classes, A, B, and C. In section 2 it was pro- vided that —
The salaries of registers of deeds and assistant registers of deeds here- inbefore specified shall be readjusted in January, nineteen hunched and six, and every five years thereafter, upon the basis of the average yearly receipts of the respective registries for the five preceding years, in accord- ance with the classification set forth in section one.
Chapter 455 was substantially similar in form, providing, in section 1, that —
Judges, registers and assistant registers of probate shall receive from the treasury of the commonwealth annual salaries based upon the follow- ing scale. If the amount in any case comprised in the fhst two classes exceeds an even hundred number of dollars by a sum less than fifty dollars, the excess shaU be deducted; and if the excess is fifty dollars or more a sum shaU be added sufficient to make the excess an even hundred doUars. . . .
Section 2 provides : —
Salaries of judges, registers, and assistant registers of probate shall be readjusted in the year succeeding each national or state census, in accord- ance with the classification set forth in section one.
Both of these statutes contain express provision for readjust- ment at regular periods upon the basis of population or receipts of money.
Chapters 451 and 453, which establish classes according to population, contain no such provision for readjustment, and do not refer to the State or national census, or to any other oflBcial determination of the population upon which the divi- sions are to be based. They both purport to establish salaries, and not to establish divisions by which the salaries are to be determined from time to time.
Chapter 451 has been several times amended. St. 1905, c. 179; St. 1906, cc. 276, 290; St. 1907, c. 253; St. 1910, c. 537; and see St. 1907, c. 145, § 2; St. 1909, c. 232. But none of these amendments is of much assistance in determining the question now under consideration. In the case of chapter 453,
JAMES M. SWIFT, ATTORNEY-GENERAL. 363
lowever, a statute which in form is substantially like chapter :51, the amendments are more instructive. Thus, in St. 1905, ■. 165, it is provided that —
The police court of Lowell, being a court the judicial district of which las, and has had since the twenty-fifth day of April in the year nineteen lundred and four, a population of more than one hundred thousand, hall be included in class B as defined in section one of chapter four liun- Ired and fifty-three of the acts of the year nineteen hundred and four, ntitled "An Act to establish the salaries of the justices, clerks and assist- ,nt clerks of certain police, district and municipal covirts"; and the alaries of the justice, special justices, clerk and assistant clerk of the lolice court of LoweU shall be those which are established bj^ said chapter or the courts included in the said class B, to be so allowed from the first [ay of July in the year nineteen hunched and four.
Vnd in St. 1908, c. 323, which, in like terms, transferred the )olice court of Lawrence from Class D, where it was placed )y chapter 453, to Class C, such transfer was made by reason )f an increased population which entitled it to be so trans- erred. See also St. 1906, c. 325. Of more significance than nther of these, however, is St. 1905, c. 339, which provided for I specific readjustment after the taking of the decennial census )f the year 1905, to be "effected in each case by the county :reasurer of the county concerned, in accordance with the pro- visions of said chapter [St. 1904, c. 453]; and, beginning with :he first day of January in the year nineteen hundred and six, che said salaries shall be paid according to the said readjust- ment." And finally, in St. 1910, c. 501, it was provided, in section 1, that —
The salaries of the justices, clerks and assistant clerks of the district, police and municipal courts, other than the municipal court of the city Df Boston, and the classes into which said courts are distributed, when :he population of the judicial district of each of said courts as ascertained oy the last preceding national or state census permits it, shall be so read- justed, by the officer paying the salary, as to correspond with the classes md salaries provided for by chapter four hundi-ed and fifty-three of the icts of the year nineteen hundred and four, and acts in amendment thereof ind in addition thereto. Payment of salaries so readjusted shall begin 3n the first day of July of the year in which said census is taken.
364
OPINIONS OF THE ATTORNEY-GENERAL.
The obvious purpose of this statute was to estabHsh a method by which the salaries of the officers included within the provi- sions of St. 1904, c. 453, might be readjusted in accordance with the schedules of salaries contained in that chapter wdthout further recourse to the Legislature, and furnishes the strongest evidence that without such additional provision the Legislature did not deem that the statute as originally enacted authorized such readjustment. Since St. 1904, c. 451, is in form sub- stantially similar to chapter 453, I can see no reason why the construction given to the latter chapter should not apply to the former, and I must, therefore, advise you that in my opin- ion further legislative authority is required before the county treasurer may lawfully pay increased salaries to the clerks of the courts, the county commissioners and the count}^ treasurer upon the basis of an increased population of the county con- cerned.
To the State Board of Health.
1911 March 7.
State Board of Health — Sources of Water Supply — Regulation — Artificl\l Reservoirs — Boating and Fishing.
R. L., c. 75, § 133, as amended by St. 1907, c. 467, § 1, providing in part that the State Board of Health "may make rules and regulations to prevent the pollution and to secure the sanitary protection of all such waters as are used as sources of water supply," and "may delegate the granting and withholding of any permit required by such rules or regulations to state boards and com- missions and to selectmen in towns and to boards of health, water boards and water commissioners in cities and towns, to be exercised by such select- men, boards and commissions . . . ; and upon complaint of any person interested said board shall investigate the granting or withholding of any such permit and make such orders relative thereto as it may deem necessarj' for the protection of the public health," does not authorize the State Board of Health, upon petition of certain inhabitants of a town requesting such Board to cause suitable rules and regulations to permit fishing in certain reservoirs artificially constructed and now owned and used as a source of water supply by such town, to reqviire the water and sewer board thereof to issue permits for fishing, since the regulation of boating or fishing or of any use of such reservoirs which does not directly relate to the preservation of the purity thereof is for such town to establish.
By a communication dated February 25 you seek my opinion upon certain questions respecting the rights of the State Board of Health in the matter of a petition which has been entered
I
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 365
jjy certain inhabitants of the town of Winchester, requesting :hat the Board cause suitable rules and regulations to permit lishing in certain reservoirs owned and used as a source of vater supply by the town of Winchester. The facts as pre- sented by the communication of the Board and the papers mnexed thereto, so far as material, appear to be substantially IS follows —
Under the provisions of St. 1872, c. 265, and St. 1873, c. 277, :he town of Winchester was authorized to construct, own and maintain reservoirs in the territory lying along the easterly side of the town within its limits and in the adjoining towns Df Medford and Stoneham, and subsequently did construct, and now owns and maintains, three reservoirs on small streams which are the headwaters of certain tributaries of the Aberjona River or Mystic Lake. One of these reservoirs, known as the North Reservoir, is situated partly in Stoneham and partly in Winchester; another, the South Reservoir, is wholly within the limits of the city of Medford, and the Middle Reservoir is situ- ated chiefly in Stoneham but partly also in W^inchester and Medford. A large part of the area which constitutes the water- shed of these reservoirs is the property of the town of Winches- ter and the remaining portion of these watersheds is within the limits of the metropolitan parks reservation. I am advised, and, therefore, assume, that the town of Winchester owns in fee the beds of the several reservoirs and the land surrounding them, and that none of the three is a great pond or charged with any of the public rights to which, in the absence of re- strictive legislation, great ponds are subject.
On April 1, 1909, acting upon the petition of the water and sewer board of the town of Winchester, the State Board of Health adopted certain rules and regulations for the purpose of preventing the pollution and securing the sanitary protection of the three reservoirs above mentioned. These rules were adopted under authority of R. L., c. 75, § 113, and, among other things, provided : —
13. No person shall bathe in, and no person shall, unless permitted by a written permit of the water and sewer board of the town of \Yinchester,
366 OPINIONS OF THE ATTORNEY-GENERAL.
fish in, or send, drive or put any animal into, North Reservoir, so called, in the towns of Stoneham and Winchester, Middle Reservoir, so called, in the to^Tis of Stoneham and Winchester and the city of Medford, or South Reservoir, so called, in the city of Medford, said reservoirs being used by the to-v\7i of Winchester as sources of water supply. No person other than a member, officer, agent or employee of said water and sewer board, or pubhc officer whose duties may so require, shall, unless so permitted by a written permit of said board, enter or go, in any boat, skif¥, raft or other contrivance, on or upon the water of either of said reservoirs, nor shall enter or go upon, or di'ive anj^ animal upon, the ice of either of said reservoirs.
The granting and withholding of permits required by rules 13 and 14 is hereby delegated by the State Board of Health to the water and sewer board of the to^\^l of Winchester.
The petition filed with the State Board of Health recites that "at divers times since the adoption of the aforesaid Rules and Regulations by said State Board of Health, they (the peti- tioners) have made application to the water and sewer board of the tow^n of Winchester for permits to fish in said reservoirs, but that said Board has always refused to grant the same," and that a petition presented to said Board by the same peti- tioners, requesting that permission to fish might be issued under rules and regulations which should be Sufficient to preserve the purity of the water, was refused by the Winchester Water and SeW'Cr Board. The petition then prays that the State Board "cause to be prepared forthwith suitable rules and regulations under which fishing in said reservoirs may be carried on, and that said W^inchester water and sewer board, or such other board or boards, individual or individuals, as may in the judg- ment of this Board be deemed expedient, be directed to grant such permits in accordance with such rules and regulations."
The jurisdiction of the State Board of Health in the premises is founded upon the provisions of R. L., c. 75, § 113, which, as amended by St. 1907, c. 467, § 1, provides as follows: —
Said board maj'- cause examinations of such waters to be made to ascertain then- purity and fitness for domestic use or their liability to impair the interests of the public or of persons lawfully' using them or to
I
^
JAMES M. SWIFT, ATTORNEY-GENERAL. 36^
imperil the public health. It maj' make rules and regulations to prevent the pollution and to secure the sanitary protection, of all such waters as are used as soui-ces of water supply. Said board may delegate the granting and withholding of any permit required by such rules or regula- tions to state boards and commissions and to selectmen in towns and to boards of health, water boai'ds and water commissioners in cities and towns, to be exercised by such selectmen, boards and commissions, subject to such recommendation and direction as shall be given from time to time by the state board of health; and upon complaint of any person interested said board shall investigate the granting or withholding of any such permit and make such orders relative thereto as it may deem necessary for the protection of the pubUc health.
While the duty of the State Board of Health under this and the preceding section (section 112), which vests in said Board the general oversight and care of all inland waters and of all streams and ponds used by any city, town or public institution or by any water or ice company in this Commonwealth as sources of water supply, is primarily to prevent pollution and to secure the sanitary protection of waters which are used as sources of water supply, it has, by reason of the amendment contained in St. 1907, c. 467, not only the right to delegate power to grant or withhold permits to boat, fish or cut ice upon sources of water supply, but also the duty, upon complaint, to investigate the granting or withholding of such permits, which partakes of the nature of an appellate jurisdiction; and, in the case of a great pond, a petition like the present would prob- ably require some action upon the part of the Board in the nature of a review of the proceedings of the State or local au- thorities to whom had been delegated the granting and with- holding of any permits required by the rules and regulations of the Board, and a consideration of their action with respect to the withholding or granting of any particular permit or permits concerning which complaint was made by the petitioner.
In the present case, however, upon the assumption already made, the town of Winchester, in its corporate capacity, owns the shores, the bed and the waters of all three reservoirs; and, while the State Board of Health may restrict their use because they are sources of water supply, it can have no right, without
368
OPINIONS OF THE ATTORNEY-GENERAL.
the consent of the town, or of the authorized agents of the town, in the premises, who may be assumed to be the Water and Sewer Board of Winchester, to require any use thereof which is not necessary for the purpose of protecting them as such sources of water supply. In the case of a great pond a rule which permits fishing or boating either continues an existing pubhc right or revives one which for a time has been pro- hibited, but here the Board is not deahng with a great pond, but with an artificial reservoir in which the public have no rights, and which, apart from such regulations as may be necessary to protect its purity as a source of water supply, is subject to such use for fishing or boating as the town of Win- chester, or its agents, may see fit to make of it, subject to the general laws which govern the preservation and the taking of fish. I am, therefore, of opinion that the State Board of Health has no authority to require the water and sewer board of Winchester to issue permits for fishing, and that the regulation of boating or fishing, or of any use of the reservoirs in question which is not directly required to preserve the purity thereof, is for the town of Winchester to establish or determine.
To the Civil Service Commission.
1911 March 11.
Civil Service — City of Boston — Veterinary Inspector, Veterinary Medical Inspector and Veterinarian.
The positions of "veterinary inspector," "veterinary medical inspector" and "veterinarian" are within the classification estabhshed by civil service rule 7, class 11, which includes "inspectors other than inspectors of work, and persons doing similar work, excepting railroad inspectors, in the ser\ace of the Commonwealth or of any city thereof," and are therefore subject to the civil service law and rules.
In behalf of the Civil Service Commission you request my opinion as to whether the positions in the health department of the city of Boston, termed, respectively, "veterinary in- spector," "veterinary medical inspector" and "veterinarian," are classified under the civil service law and rules.
You state that the duties of the persons holding such posi- tions are as follows : —
JAMES M. SWIFT, ATTORNEY-GENERAL. 369
The duties of the person acting as "veterinary inspector" are the eneral inspection of dressed meat and of animals intended for slaughter t the abattoir. The duties of the "veterinary medical inspector" and f the two "veterinarians," whom the board of health is about to appoint, re stated by the board of health as follows: the duties are to examine )r diseases in animals and to report to the board of health for its action; ) investigate the sources of outbreaks of diseases and their communi- ition from animal to animal, and from animal to man; and to examine id report upon diseases of animals in life and pathological conditions : the autopsy and on the meat market; and the board of health states lat the successful performance of the work requires the special qualifi- ition of professional training.
The facts stated do not bring the positions \vithin any of le general statutory exceptions from the application of the vil service law (R. L., c. 19, § 9), nor am I aware of any :atute which specifically excepts these positions therefrom, 'he question is, therefore, whether they are classified under 16 civil service rules.
Civil service rule 7, which provides for the classification of le official service, includes as class 11, —
Inspectors other than inspectors of work, and persons doing similar ork, excepting railroad inspectors, in the service of the commonwealth r of any city thereof.
In my opinion the positions in question are classified within his rule. The word "inspector" has a broad meaning. It 1 defined in the Century Dictionary as follows : — .
One who inspects or oversees; one whose duty it is to secm-e by super- ision the proper performance of work of any kind, or to ascertain by ■camination the quality or condition of the work, or of any article offered )r sale or transfer; a public officer charged with such duties; as, the ^spedors of election or of police; an inspector of weights and measures.
The form of the rule itself indicates that the word "in- pector" is not limited in its meaning to an inspector of work, nspectors of work are classified with foremen of laborers, in lass 22. Class 11 includes all other inspectors. Without at- ?mpting to define precisely the meaning of the word "in-
370
OPINIONS OF THE ATTORNEY-GENERAL.
spector," I advise you that in my opinion it is broad enough to include the positions of veterinary inspector, veterinary medi- cal inspector and veterinarian, as such positions are described by you. In my judgment the fact that "the successful per- formance of the work requires the special qualification of pro- fessional training" does not except the positions from the ap- plication of the civil service law and rules.
Constitutional Law — Amendment to Constitution — Submission to People.
Where a proposed amendment to the Constitution was duly agreed to by a majority of the Senate and two-thirds of the members of the House of Representatives in two successive years, as provided in Article IX. of the Amendments of the Constitution of the Commonwealth but no further action was taken with respect thereto, it may be submitted to the people as required by said article by a resolve passed in the usual manner by a subsequent Legislature.
Committee"on You havc Submitted to me a proposed resolve (House, Xo. Amlndments^. 795) providiug for submitting to the people the article of March 15. amendment to the Constitution authorizing the use of voting
machines at all elections. This article provides that, —
Voting machines or other mechanical devices for voting may be used at all elections under such regulations as may be prescribed by law: provided, however, that the right of secret voting shall be preserved.
The proposed amendment was duly agreed to by a majority of the senators and two-thirds of the members of the House of Representatives present and voting thereon during the legisla- tive session of 1909, and was referred to the General Court next to be chosen, which in 1910 agreed thereto, as required by Article IX. of the Amendments to the Constitution of the Commonwealth. No further action was taken by the Legis- lature of that year, and your present communication requires my opinion upon the question whether or not the present Gen-, eral Court may submit such proposed amendment to the people, as provided in the article of the amendment above cited.
Article IX. is in full as follows: —
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 371
If, at any time hereafter, any specific and particular amendment or jnendments to the constitution be proposed in the general court, and ,greed to by a majority of the senators and two-thirds of the members if the house of representatives joresent and voting thereon, such proposed mendment or amendments shall be entered on the journals of the two lOuses, with the yeas and nays taken thereon, and referred to the general curt then next to be chosen, and shall be published : and if, in the general curt next chosen as aforesaid, such proposed amendment or amendments hall be agreed to by a majority of the senators and two-thirds of the aembers of the house of representatives present and voting thereon, then i shall be the duty of the general court to submit such proposed amend- lent or amendments to the people; and if they shall be approved and atified by a majority of the qualified voters, voting thereon at meetings ^gally warned and holden for that purpose, they shall become part of the onstitution of this commonwealth.
The article contains no specific direction as to the precise ime when a proposed amendment shall be submitted to the )eople, and does not expressly limit the authority of the Legis- ature in this respect to the General Court which agrees to a )roposed amendment already passed upon by the General ]!ourt of the previous year, and if such limitation exists it ex- sts only by necessary implication. I am aware of no decision )f the court upon the point raised by your inquiry, and the luestion seems to be one of novel impression. In the absence )f judicial authority in the premises I am inclined to the opinion hat no sufficient reason is apparent for limiting the power of he General Court to submit to the people a proposed amend- nent of the Constitution to the particular Legislature by which uch proposed amendment was agreed to; and if no action with aspect to submission was taken by such Legislature, an imendment so adopted may be submitted to the people for their iction by a subsequent Legislature, in the form of a resolve )assed in the usual manner.
372
OPINIONS OF THE ATTORNEY-GENERAL.
To the Bank Commissioner.
1911 March 28.
Co-operative Bank — Unincorporated Association — Way OR Manner of transacting Business — Savings Bank.
An unincorporated association formed for the purpose of accumulating a fund for the purchase of real estate and for building thereon, for making loans and for accumulating a fund to be returned to the stockholders, the property of which is vested in trustees and the shares of which mature when they reach the value of $500, with pro\asion for assignment or withdrawal, and which does not offer to its members — who are persons having one or more shares of stock who have signed the articles of association — the money so accumu- lated according to the premium or rate of interest paid by them for priority, but invests such money as the funds of a savings bank are invested, does not transact "the business of accumulating the savings of its members and loaning to them such accumulation in the manner of a co-operative bank" in violation of the prohibition of R. L., c. 114, § 1.
Quaere, whether the wa5' or manner in which such association transacts its business might not lead the public to believe that such business was that of a sa\dngs bank.
You have requested my opinion upon certain questions rela- tive to the Attleborough Savings and Loan Association.
The Attleborough Savings and Loan Association is unincor- porated. Its purpose, as stated in the preamble to its Articles of Association, is that "of accumulating a fund for the pur- chase of real estate and for building thereon, for removing in- cumbrances therefrom, for making lo^ns, and for the further purpose of accumulating a fund to be returned to stockholders." Any person holding one or more shares of the stock and having signed the Articles of Association is a member of the associa- tion. Articles of Association, Article 1. The title to the prop- erty of the association is vested in trustees. Article 4. Livest- ments may be made in loans "on first mortgages of real estate, in INIassachusetts and Rhode Island, upon shares of this associa- tion, and upon such other securities as savings banks are au- thorized to take under the laws of Massachusetts," also "in real estate in the town of Attleborough," Article 8. ^Members pay monthly dues of $2 per share and fines for default of pay- ment. Article 10. Shares mature when they reach the value of $500, Article 13. Provision is made for assignment or withdrawal of shares, Article 9. You further state that "the money accumulated is not offered to the members according
JAMES M. SWIFT, ATTORNEY-GENERAL. 373
0 the premiums or rate of interest bid by them for priority, )ut is invested almost precisely as are the funds of a savings )ank."
Your first inquiry is as follows : —
Is this association, on the evidence submitted, transacting the business if accumulating the savings of its members and loaning to them such .ccumulations in the manner of a co-operative banlc, contrary to the iro visions of section 1 of chapter 114 of the Revised Laws?
R. L., c. 114, § 1, provides, in part, that —
No person, and no association or corporation, except foreign associa- ions and corporations duly licensed by the board of commissioners of avings banks prior to the fourteenth day of April in the year eighteen lundred and ninety-six to transact business in this commonwealth, shall ransact the business of accumulating the savings of its members and caning to them such accumulations in the manner of a co-operative )ank, unless incorporated in this commonwealth for such purpose.
I am of opinion that the association in question does not ransact "the business of accumulating the savings of its mem- )ers and loaning to them such accumulations in the manner of
1 co-operative bank," contrary to the provisions of the statute luoted.
It would be difficult to distinguish the manner in which the issociation in question transacts the business of accumulating ;he savings of its members from that of a co-operative bank. The association, however, does not loan to them such accumu- ations in the manner of a co-operative bank. The loaning of mch accumulations to such of the members as make the best )ffers is characteristic of a co-operative bank. See Ativood v. Ihmas, 149 Mass. 167, 169; Attorney-General v. Pitcher, 183 Mass. 513, 516. The loaning of money to its members upon :heir shares is merely incidental in the case of the association n question. There are no provisions that such loans shall be nade to those members who offer the greatest premiums or 'ates of interest, as in the case of a co-operative bank. R. L.,
-• m, § 11.
374 OPINIONS OF THE ATTORNEY-GENERAL,
Your second inquiry is as follows : —
Is this association soliciting or receiving deposits or transacting business in the vray or manner of a savings bank contrary to the provisions of section 16 of chapter 590 of the Acts of 1908?
St. 1908, c. 590, § 16, provides as follows: —
No corporation, either domestic or foreign, and no person, partnership or association except savings banks and trust companies incorporated under the laws of this commonwealth, or such foreign banking corpora- tions as were doing business in this commonwealth and were subject to examination or supervision of the commissioner on June first, nineteen hundred and six, shall hereafter make use of any sign at the place where its business is transacted having thereon any name, or other word or words indicating that such place or office is the place or office of a sa\dngs bank. Nor shall such corporation, person, partnership or association make use of or circulate any wo-itten or printed or partly written and partly printed paper whatever, having thereon any name, or other word or words, indicating that such business is the business of a savings bank; nor shall any such corporation, person, partnership or association, or any agent of a foreign corporation not having an established place of business in this commonwealth, solicit or receive deposits or transact business in the way or manner of a savings bank, or in such a way or manner as to lead the public to beheve, or as in the opinion of the commissioner might lead the public to believe, that its business is, that of a savings bank.
Though it is not absolutely clear that its way or manner of transacting business is that of a savings bank, I advise you that you may properly be of the opinion that the way or man- ner in which it transacts its business might lead the public to believe that its business is that of a savings bank.
(
JAMES M. SWIFT, ATTORNEY-GENERAL. 375
rONSTITL'TIONAL LaW — PuBLIC HIGHWAYS — UsE — EREC- TION OF Structures over Public Ways — Eminent Domain — Public Purpose.
^ proposed bill which provides that upon petition and after public notice and a public hearing the board of street commissioners of the city of Boston may, •w-ith the approval of the maj-or, issue a permit to certain individuals named therein "to construct and maintain a bridge across Avon Street in said city for the purpose of connecting buildings owned by them on opposite sides of said street or for the purpose of a fire escape, on such conditions and subject to such restrictions as said board may prescribe," purports to confer upon such indi%aduals an absolute right to be granted by the city of Boston, and in so far as the grant of such right would be inconsistent with the rights of other persons, to require the exercise of the power of eminent domain without pro\'ision for compensation.
\ proposed bill which authorizes the city of Boston through its mayor, if it shall sell the whole or a part of its real estate on Mason Street in said city, "to grant to the purchaser of said estate, and his successors in title, the right to connect the real estate so sold with property on Tremont Street opposite said real estate by means of a covered passageway or bridge over Mason Street," and provides for the compensation of any person whose property may be injured by the erection of the structure so authorized, appears to contemplate the exercise of the power of eminent domain, not for a public purpose but for the benefit of certain individuals who may purchase the real estate described therein. Both bills are therefore objectionable upon constitutional grounds.
You have submitted to me on behalf of the joint standing TotheHo»ise
Committee
committee on cities certain bills now pending before that °°j^'j*'^^- I committee, and have stated that my opinion is desired upon Marchsi. I the following specific question: "With reference to House bills 'numbered 817 and 451, would either or both of these bills, [if passed, be in your opinion constitutional; or, to put it in
another way, is there any constitutional objection to the
passage of these bills?" House Bill No. 817 is entitled "An Act to authorize the
Construction of a Bridge over Avon Street in the City of
Boston," and provides in section 1 that —
Upon petition and after seven days' public notice published in at least three newspapers pubhshed in the city of Boston, and a public hearing thereon, the board of street commissioners of the city of Boston may, with the approval of the mayor, issue a permit to Eben D. Jordan and Edward J. Mitten to build and maintain a bridge across Avon street in said city for the purpose of connecting buildings owned by them on
376 OPINIONS OF THE ATTORNEY-GENERAL.
opposite sides of said street, or for the purpose of a fire escape, on such conditions and subject to such restrictions as said board may prescribe.
House Bill No. 451 is entitled "An Act to authorize the Bridging of Mason Street in the City of Boston," and provides that —
The city of Boston by its mayor is hereby authorized and empowered, if it shall sell the whole or part of its real estate on Mason street in said city, to grant to the purchaser of said estate and his successors in title the right to connect the real estate so sold with property on Tremont street opposite said real estate by means of a covered passageway or bridge over Mason street, said covered passageway to be not more than twenty feet in width and at the bottom of the floor not less than twenty feet above the street level.
In section 3 provision is made for the compensation of any person whose property may be damaged by the erection of the structure so authorized.
I assume that both Avon Street and Mason Street were laid out and constructed as public highways, and that although the fee of the land remains in the landowner, the public have ac- quired in such streets an easement of travel which includes "every kind of travel and communicati9n for the movement or transportation of persons or property which is reasonable and proper in the use of a public street." Neio England Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 399; see also Cheney v. Barker, 198 Mass. 356, 362. The easement so acquired extends to the use of structures either above or below the surface of the way, when such structures "are used by the public or a part of the public, or are held and used in private ownership for the benefit of the public." New England Telephone & Telegraph Co. v. Boston Terminal Co., supra; Sears v. Crocker, 184 Mass. 586, 588. But these uses and the facilities therefor must be "reasonable in reference to their effect upon adjacent property, as well as their effect upon other kinds of public uses of the street," and "a use of the street which would constitute a grave private nuisance to property at the side of the street could not have been contemplated by
JAMES M. SWIFT, ATTORNEY-GENERAL. 377
;he law as being acquired by a taking for a highway or street." Lentell v. Boston & Worcester Street Ry. Co., 202 ]\Iass. 115, .19. Thus, elevated s.tructures in the street for the use of street ailways or other instrumentalities of transportation have been leclared by the Legislature to impose an additional servitude ipon land taken for street purposes, and provision has been nade for any injury to property caused by them. St. 1894, :. 548, § 8; and see St. 1903, c. 163, § 3. Lentell v. Boston £• Worcester Street Ry. Co., supra; Baker v. Boston Elevated ly. Co., 183 Mass. 178. This would seem to have been the heory upon which one of the two bills now before me (House 3ill No. 817) was drafted, for it contains, in section 3, provi- ion for compensation to any person whose property may be in- ured by the construction of the bridge authorized in section 1. louse Bill No. 451, however, contains no such provision, and, f the structure authorized by it may be considered to be an nstrumentality of public travel, transportation or communi- ;ation, fairly raises the question whether the erection and main- enance of such a structure should be held to be a reasonable md proper use of a public street, or is a use which was not ncluded in the original easement and imposes a new servitude ipon the land taken for which compensation must be made. This question is not free from difficulty. The court has de- clared, in Sears v. Crocker, 184 Mass. 586, at page 588, that —
Our system, which leaves to the landowner the use of a street above ir below or on the surface, so far as he can use it without interference vith the rights of the pubhc, is just and right, but the pubUc rights in hese lands are plainly paramount and they include, as they ought to aclude, the power to appropriate the streets above or below the surface .s well as upon it, in any way that is not unreasonable, in reference either 0 the acts of all who have occasion to travel or to the effect upon the property of abutters.
Abutters are bound to withdraw from occupation of streets above or lelow the sui'face whenever the public needs the occupied space for travel. The necessary requirements of the public for travel were all paid for when he land was taken, whatever they may be, and whether the particulars >f them were foreseen or not. The only limitation upon them is that hey shall be of a kind which is not unreasonable.
378 OPINIONS OF THE ATTORNEY-GENERAL.
The question in each case must depend primarily upon public necessity and the conditions which exist with reference to the particular locality affected. If the public use of the streets at or near Avon Street or Mason Street require that there should be an elevated structure over either or both of those streets, in order that public travel, transportation or communication may be maintained between points upon either side of such streets, I am inclined to the opinion that the erection of such a struc- ture might well be held to impose no additional servitude upon the highway beneath.
But it is essential that the need for such means of communi- cation should be a public need, and that it should be open to the public. Nothing in either of said bills shows that the structures therein authorized are required by any public neces- sity or are to be instrumentalities of public travel. On the contrary, it seems that they are not designed primarily for the use of the public, as such, but to serve the convenience of abut- ting owners and to enhance the value of their property. In House Bill No. 817 the permission which may be granted upon compliance with the requirements therein set forth is to two individuals, and is "for the purpose of connecting buildings owned by them on opposite sides of sajd street;" and in House Bill No. 451 the right to maintain such structure is granted to the purchasers of certain real estate now^ held by the city of Boston, and is made appurtenant thereto.
Where a public highway is laid out and constructed the ease- ment secured by the public is no more than an easement of travel. The fee remains in the landowner, who may make any use of his property not inconsistent with its use as a highway. Commonwealth v. Morrison, 197 Mass. 199, 205; Cheney v. Barker, 198 Mass. 356, 362. If the erection and maintenance of structures like those contemplated by the two bills aforesaid are not inconsistent with the paramount rights of the public in the streets over which such structures are to pass, the land- owner requires no permission from the Legislature to erect them. "The Legislature is the supreme authority in regard to public rights in the streets and highways" (Boston Electric Light Co. <
JAMES M. SWIFT, ATTORNEY-GENERAL. 379
V. Boston Terminal Co., 184 Mass. 566, 570), and it may define or limit the extent of the rights which it deems necessary for the pubhc, or may even abandon some of them by permitting uses of abutting property which, without such permission, would involve an interference with the public use, provided that such abandonment does not go far enough to amount to an appropriation of public property to private uses. The proposed acts seem to be more than a legislative declaration that the use of private property in the manner which they describe does not interfere with the public easement of travel, — or, in other words, a definition or limitation of the public use, — and are, in my opinion, objectionable upon constitutional grounds, in that they assume to confer upon private persons rights with respect to the use of abutting property which are made para- mount to the rights of other persons, which, to that extent, would be an appropriation of those rights, requiring the exer- cise of the power of eminent domain. In House Bill Xo. 871 the exercise of this pov^•e^ is clearly contemplated, for it pro- vides in section 3 for the compensation of any one whose prop- erty may be injured by the erection of the structure authorized. House Bill No. 451 contains no such provision, but since it purports- to confer an absolute right to be granted by the city of Boston, would necessarily require the exercise of such power in so far as the grant of such right would interfere with the rights of others. No information has been submitted to me respecting the exact limits of the property affected by the pro- posed legislation or the nature of the title by which it is held. Said property is not even certainly described in the bills them- selves. For this reason I am necessarily confined to a discus- sion of the general principles which appear to be applicable in the premises. These lead me to the opinion that there is con- stitutional objection to the passage of either of the bills sub- mitted to me.
380
OPINIONS OF THE ATTORNEY-GENERAL.
To the House Committee on Cities.
1911 March 31.
Constitutional Law — Appropriation of Money raised by Taxation — Public Purpose — Museum of Fine Arts.
The Constitution of the Commonwealth, in chapter V., section II., imposes upon the Legislature the duty "in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them," and "to encourage private societies and public institutions, rewards and immunities, for the promotion of . . . arts, sciences, . . . and a natural history of the country," and the appropriation of money in the reasonable performance of the duty so imposed would be for a public purpose.
A proposed bill authorizing the city of Boston to appropriate money, not exceeding $50,000 in any single year, for the maintenance and support of the Museum of Fine Arts in said city, subject to certain conditions to be performed by the trustees of such museum, as therein prescribed, would therefore be con- stitutional.
Under existing law, however, the city of Boston has no authority to appropriate money for such purpose.
You have required my opinion upon the following ques- tion: —
With reference to House Bill No. 1527, is there any constitutional ob- jection to the passage of this bill; and, if not, does the city of Boston now have, in your opinion, the right, without additional legislation, to appropriate money for the purposes named in the bill ?
House Bill No. 1527 authorizes and empowers th.e city of Boston to appropriate money, not exceeding $50,000 in any single year, for the maintenance and support of the Museum of Fine Arts, subject to the condition that the trustees thereof —
shall continue to open their buildings and collections for free admission to the people of Boston the same number of days in the week as they now do, and that said trustees shah annually report to the mayor and the school committee of the city of Boston statistics showing the financial condition of said museum, its income and disbursements, and the nature and kind of instruction given by it and the number of its teachers and pupils.
INIoney raised by taxation may be expended only for a public purpose. Lowell v. Oliver, 8 Allen, 247, 253; Opinion of the Justices, 204 Mass. 607, 611. The power of the Legislature to authorize an appropriation by the city of Boston for the benefit of the INIuseum of Fine Arts must depend upon whether
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 3S1
3r not the purpose for which such institution was estabUshed is 1 pubHc purpose. In Kingman v. Brockton, 153 Mass. 255, in iiscussing a statute authorizing the erection of a memorial lall at the pubHc expense the court said : —
That statute . . . may be vindicated on the same ground as statutes luthorizing the raising of money for monuments, statues, gates or arch- ivays, celebrations, the publication of town histories, parks, roads leading ;o points of fine natural scenery, decorations upon pubhc buildings, or 3ther public ornaments or embellislmients, designed merelj^ to promote the general welfare, either by providing for fresh air or recreation, or by educating the public taste, or by inspiring sentiments of patriotism or Df respect for the memory of worthj^ individuals. The reasonable use Df pubhc money for such purposes has been sanctioned by several different statutes, and the constitutional right of the Legislature to pass such statutes rests on sound principles.
This language was cited with approval in the case of Attor- ney-General V. Williams, 174 jNIass. 476. See Williams v. Parker, 188 U. S. 491; see also Higghison v. Nahant, 11 Allen, 530; Huhhard v. Taunton, 140 Mass. 467.
I have before me no precise and definite information as to the purposes for which the Museum of Fine Arts was organized and is maintained, but I assume that among the objects of that institution is the promotion of the education and culture of the public generally in the fine arts, and upon such assumption I am of opinion that its maintenance may well be held to be a public purpose within the principles laid down in the deci- sions above cited. The Constitution itself imposes upon the Legislature the duty, "in all future periods of this common- wealth, to cherish the interests of literature and the sciences, and all seminaries of them," and "to encourage private socie- ties and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures and a natural history of the country" (C. \ ., § II.); and the appropriation of money in the reasonable per- formance of this duty would doubtless be for a public purpose. Attorney-General v. Williams, supra, p. 480; Hanscom v. Lowell, 165 Mass. 419; and see Commonwealth v. Boston Advertising Co.,
382 OPINIONS OF THE ATTORNEY-GENERAL.
188 Mass. 348, 351. For authority that the citizens of Boston may be directly taxed, see Merrick v. Amherst, 12 Allen, 500.
You have further required my opinion as to whether or not the city of Boston now has the right, without additional legis- lation, to appropriate money for the purposes named in House Bill No. 1529. In my opinion it has not. The only provision of law which could now authorize such an expenditure is R. L., c. 26, § 28, which is as follows : —
The city council may, by a yea and nay vote of two-tliirds of the members of each branch thereof present and voting, appropriate money for armories for the use of the state militia, for the celebration of holidaj^s, and for other pubUc purposes to an amount not exceeding in any one year one-fiftieth of one per cent of its valuation for such year.
This section was construed in Hubbard v. Taunton, already cited, in which the court, in refusing to restrain the expendi- ture of the sum of S200 to pay for twelve public band concerts, used the following language : —
The word "other" implies that the celebration of holidays is a public purpose within the meaning of the act, and indicates that purposes which are public only in that sense are included within its scope, although thej' look rather more obviously to increasing the picturesqueness and interest of life than to the satisfaction of rudimentary wants, which alone we generally recognize as necessary. We know of no simple and merely logical test by which the limit can be fixed. It must be determined by practical considerations. The question is one of degree. But, in reply to the petitioners' argument, we may say that, if the purpose is within the act, we do not see why the city council may not create the occasion. Taking into account the history and language of the act, the safeguards attached to the exercise of the power, the smallness of the sum allowed to be expended, and the fact that it has long been assumed to be within the power of cities to give such concerts in the open air, we are not pre- pared to say that a case is presented for an injunction.
In view of the language above quoted I do not think that the section above cited should be held to authorize the expendi- ture of money for public purposes which are permanent and enduring, and which may require a large annual appropriation of money raised by taxation.
JAMES M. SWIFT, ATTORNEY-GENERAL. 383
.
ONSTITUTIONAL LaW — PUBLIC HIGHWAYS — LICENSE — USE
FOR Commercial or Advertising Purposes.
L city may constitutionally be authorized to require, and to issue through its board of supervisors, licenses for the use of specified parts of public streets therein for the storage and sale of merchandise for purposes necessary for the con- struction or repair of works or buildings and for commercial or advertising purposes in cases where the consent of the abutting owner or owners has been obtained. The issuance of such licenses, if confined within reasonable limits, constitutes a definition by public authority of the public use of a highway.
On behalf of the joint committee on cities you have requested m?ttee^°™" ay opinion "as to the constitutionaHty of the enclosed bill en- 1911"
' itled 'An Act relative to the use of streets in the city of )pringfield.' " More precisely, I assume the question to be vhether or not the use of the public streets for the purposes md in the manner described in said act is constitutional. Section 1 of said proposed bill provides that —
The board of supervisors of the city of Springfield may require and issue icenses, subject to the provisions hereof, for the use of specified parts of )ublic streets in said city, for the storage and sale of merchandise, for )urposes necessary for the construction or repair of works or buildings md for all other purposes requiring the opening of streets, the use thereof 'or commercial or advertising purposes or for purposes causing more ;han the ordinary interruption or impaimient of travel thereon.
Section 2 provides that any person who desires such a license ihall make written application therefor, stating his name, resi- dence and place of business, and describing the location, shape Jnd dimensions of the space which he desires to occupy, the structures which he proposes to use, and the kinds of mer- :handise which he wishes to store or sell. It further provides :hat —
He shall submit as part of his application the wTitten consent to the issuance of said license on the part of the owner or owners of the premises m front of which he desires to carry on business and of the tenants of the gi-ound floor of such premises, if the license requested is for the sale 3r storage of merchandise. When the privilege for which a license is asked is to be exercised in front of the premises owned by the city of Springfield, the owner's consent herein provided for shall not be required.
April 4.
384
OPINIONS OF THE ATTORNEY-GENERAL.
Such a use of the streets does not fall within the limits of the public easement of travel (Commonwealth v. Morrison, 197 Mass. 199, 203; Haberlil v. Boston, 190 Mass. 358), and the Legislature could confer no authority in the premises with- out the consent of the owner of the fee. Such consent, however, appears to be provided for in the bill submitted to me, and if the use therein licensed does not amount to such a great and permanent obstruction as to constitute a public nuisance or an appropriation of public property to private uses, I am of opin- ion that the Legislature may authorize the issuance of such license by the city government of Springfield.
Said act may be construed as permitting the supervisors of the city of Springfield to define the limits of the public use and to determine what uses by a private person may be permitted without conflicting therewith. If confined wuthin reasonable limits such use would be constitutional.
Constitutional Law — Taxation — Exemption — Charita- ble Corporation — Land acquired by Institution in- corporated FOR Care of Insane.
A proposed bill which provides that "no private corporation or association now existing or hereafter incorporated for the care of the insane shall acquire land ... to be exempt from taxation without the consent of the legal voters of the town or governing board of a city where such land is located," would not be unconstitutional as creating an unreasonable exception from the pro- visions of law for exemption applicable to property of charitable corporations generally, or because it delegates to cities and towns power to determine whether specific land therein which may be acquired by such institutions shall be included within the exemption applicable to land owned by charitable institutions generally.
In behalf of the committee on bills in the third reading of the
To the House Committee on
Third'Read- Housc of Representatives, you have requested my opinion as ""Ion to whether House Bill No. 1170, if enacted, will be constitu-
April 12. . 1 ,. 1 X
tional and valid. It provides that —
No private corporation or association now existing or hereafter incor- porated for the care of the insane shall acquire land in a city or town of the commonwealth to be exempt from taxation without the consent
JAMES M. SWIFT, ATTORNEY-GENERAL. 3S5
I )f the legal voters of the town or governing board of a city where such j and is located.
I am of opinion that the bill, if enacted, will be constitutional ind valid. My reasons for this view follow.
The property of institutions for the care of the insane is low exempted from taxation so far as it is included within ;he provisions of St. 1909, c. 490, part I., § 5, cl. 3, which exempts from taxation —
The personal property of literary, benevolent, charitable and scientific nstitutions and of temperance societies incorporated ■within this com- nonwealth, the real estate owned and occupied by them or their officers 'or the purposes for which they are incorporated, and real estate pur- chased by them with the purpose of removal thereto, until such removal, Dut not for more than two years after such purchase. Such real or per- sonal property shall not be exempt if any of the income or profits of the Dusiness of such corporation is di^dded among the stockliolders or mem- oers, or is used or appropriated for other than literary, educational, benev- Dlent, charitable, scientific or religious purposes, nor shall it be exempt :or any year in which such corporation wilfully omits to bring in to the assessors the list and statement required by section forty-one.
The effect of the bill in question, if enacted, will be to ex- clude from this exemption land thereafter acquired by an in- stitution for the care of the insane, unless at the time such I land is acquired the city or town within which it is situated votes that it shall be exempt from taxation.
The constitutional provision relative to the taxation of land requires that taxes shall be reasonable and proportional. Const. Mass., Part 2, c. I., § 1, Art. IV. It is now too late to argue that this provision prohibits exemptions. Day v. Lawrence, 167 Mass. 371. "We have . . . constitutional requirements for the encouragement of literature and science, the diffusion of education among the people, and the promotion of 'general benevolence, public and private charity' and other kindred virtues. (Const. Mass., c. 5, § 2.) As taxation of the people may be imposed for these objects, property used for literary, educational, benevolent, charitable or scientific purposes may
386 OPINIONS OF THE ATTORNEY-GENERAL.
well be exempted from taxation. Such exemptions do not pre- vent the taxation of the people from being proportional and equal." Opinion of the Justices, 195 Mass. 607, 608-9. The questions raised by you are, therefore : —
1. Whether land held by an institution for the care of the insane may be excepted from the provision for exemption ap- plicable to property of charitable institutions generally.
2. Whether, if such land may be so excepted, the Legisla- ture may delegate to the cities and towns in which the land lies the power of determining whether specific land thereafter acquired by an institution for the care of the insane, charitable in its nature, shall be included within the exemption applicable to land owned by charitable institutions generally.
The only limitation upon exemptions is that they must be reasonable. See Minot v. Winthrop, 162 Mass. 113, 124. The purpose for which they are made must be proper. See Opinion of the Justices, supra. They must not be "such as to render the general tax on property throughout the Commonwealth un- equal and disproportionate." See Conimonivealth v. People's Five Cents Savings Bank, 5 Allen, 428, 437. It is, however, "peculiarly within the discretion of the Legislature to deter- mine what exemptions should be made in apportioning the burdens of taxation among those who can best bear them." Minot V. Winthrop, supra. Even if it was required that all persons or institutions similarly situated be treated alike, the Legislature could undoubtedly find that there was a reasonable ground for distinguishing between land and other property, be- tween property already acquired and property to be acquired, and between institutions for the care of the insane and other charitable institutions. The first question must, therefore, be answered in the affirmative.
The question as to whether the Legislature may delegate to the cities and towns in which the land lies the power of deter- mining whether specific land thereafter acquired by an institu- tion for the care of the insane, charitable in its nature, shall be included within the exemption applicable to land owned by charitable institutions generally, in turn divides itself into two,
I
JAMES M. SWaFT, ATTORNEY-GENERAL. 387
amely: (a) Whether the State may make such a special ex- mption; and (b) if the State may do so, whether it may dele- ate the power to make such special exemptions to the cities nd towns in which the property is respectively situated. Both lUst, in my opinion, be answered in the affirmative.
Since the adoption of the Constitution, and before, the Legis- iture has made such exemptions and has limited general ex- mptions in particular cases. See for a collection of statutes louse Document, 1910, No. 1395, appendix B; Phillips Acad- my V. Andover, 175 Mass. 118. These statutes have been con- .dered by the court, though their validity seems not to have een discussed. See Harvard College v. Kettell, 16 Mass. 204; lardy v. Waltham, 7 Pick. 108; Phillips Academy v. Andover, upra; Rice v. Bradford, 180 Mass. 545; Evangelical Baptist 'ociety v. Boston, 192 Mass. 412. In Northampton v. County Commissioners, 145 Mass. 108, the court affirmed the constitu- ionality, in certain aspects, of a special statute in regard to he taxation of a particular charity. Long acquiescence, tliere- Dre, furnishes a strong reason for supporting special exemp- ions of particular charitable institutions, in the absence of lear objections thereto. There is, however, in my judgment, lO objection on constitutional grounds to such statutes. As Iready stated, the justification for a special exemption of a haritable institution is, that since taxation may be imposed or the purposes for which such institution is organized, the )roperty used for such purposes may be exempted from taxa- ion. The Legislature may undoubtedly appropriate money aised by taxation for the use of one charitable institution vithout making an appropriation for the use of others of the ame class. The same result is accomplished indirectly by pecifically exempting from taxation the property of such in- titution. The propriety of such legislation seems to have )een recognized by the Supreme Court of the United States. hand Lodge v. New Orleans, 166 U. S. 143, 149; see, however, Saltimore City v. Starr Church, 106 Md. 281.
As the Legislature may make such a special exemption, so it nay delegate the power to do so. The Legislature may dele-
388 OPINIONS OF THE ATTOKNEY-GENERAL.
gate to cities and towns legislative power over subjects which are proper for municipal control. Stone v. Charlestown, 114 Mass. 214; Opinion of the Justices, 160 Mass. 586, 590; Brod- hine v. Revere, 182 Mass. 598, 600. It has delegated many powers relating to taxation. In Merrick v. Amherst, 12 Allen, 500, the court sustained as constitutional a statute authorizing a town to raise money by taxation for an agricultural college to be established therein by the Commonwealth. It would seem that the exemption from taxation of the property of an institution which was used for a public purpose might equally well be delegated. See Caverly-Gould Co. v. Springfield, 83 Vt. 396, 403. The language to the contrary in Brewer Brick Co. v. Breiver, 62 Me. 62, has been criticised. In Gray on Limita- tions of Taxing Power, p. 292, the author says: —
Inasmuch as the delegation of power to municipalities to impose taxes and to fix the rate is so integral a part of the governmental system, it cannot be believed that constitutional requirements of uniformity were intended to prohibit such delegations of power. And if this be so, the Maine decision seems unfounded.
Constitutional Law — Free Transportation of Letter Carriers in Uniform on Street Railways — Safety, Health or Proper Convenience of the Public.
A statute requiring street railway companies to carry free on their passenger cars United States letter carriers in uniform in the city or town in which such letter carriers are employed, does not tend to promote the safety, health or proper convenience of the public, but is an arbitrary enactment in favor of the persons designated, letter carriers in uniform, and, as such, is unconsti- tutional and void.
J°j*^e^House I have the honor to acknowledge the receipt of an order ^^m*/^^^' adopted by the Honorable House of Representatives on the Aprii^2. twenty-fourth day of March, 1911, which is as follows: —
Ordered, That the Attorney-General be requested to inform the House of Representatives whether, in his opinion, a statute requiring street railwaj^ companies to carry free on their passenger cars United States letter carriers in uniform, in the city or town in which they are employed, would be constitutional and valid.
JAMES M. STV^FT, ATTORNEY-GENERAL. 389
Under date of April 10, 1901, Attorney-General Knowlton .dvised the Honorable Senate that a bill requiring transporta- ion of letter carriers at a rate less than that collected from rdinary passengers was in his opinion unconstitutional so far ,s it concerned the Boston Elevated Railway Company, on the round that such bill, if enacted, would impair the obliga- ion of the contract contained in the charter of that company. ' Op. Atty.-Gen. 261. This opinion was undoubtedly correct, nd is applicable with equal or greater force to a statute such s is described in the order above set forth.
I am, however, of opinion that such a statute would be un- onstitutional as apphed to street railway companies generally. ?he right of the Legislature to regulate fares charged by street ailway companies is undoubted, but it cannot, " under pretence if regulating fares and freights," require a street railway com- )any "to carry persons or property without reward." See Uone V. Farmers' Loan & Trust Co., 116 U. S. 307, 331. The ate fixed must be reasonable. Obviously, a requirement that iny class of persons (here "United States letter carriers in miform") be carried free is not a reasonable or proper exer- :ise of the distinctively rate-making power.
If the statute is to be justified at all, it must be justified mder the poHce power in its broader sense, i.e., the power to egislate "for the safety, health or proper convenience of the )ublic." Lake Shore & Michigan Southern Ry. Co. v. Smith, .73 U. S. 684, 698, 699. Legislation for these purposes is not leeessarily bad because it imposes an incidental pecuniary loss ipon the carrier. Atlantic Coast Line R.R. Co. v. North Caro- ina Corporation Commission, 206 U. S. 1, 24, 25; Interstate Railway Co. v. Massachusetts, 207 U. S. 79, 87. It cannot, of ;ourse, be assumed that any class of persons can be carried free )y a street railway company without some, though perhaps ■light, pecuniary loss to the company. A requirement of such ree transportation cannot be sustained under the police power mless such requirement is reasonably adapted to promote " the afety, health or proper convenience of the public." The free
ransportation of United States letter carriers as a class, even
390 OPINIONS OF THE ATTORNEY-GENEKAL.
though hmited to carriers who are in uniform, does not tend to promote the pubHc safety, the pubHc health or the public convenience. It does not benefit the public generally, but is "an arbitrary enactment in favor of the persons spoken of" (i.e., United States letter carriers in uniform). See Lake Shore & Michigan Southern Ry. Co. v. Smith, supra, p. 699. No reason appears which justifies the discrimination between United States letter carriers in uniform, as a class, and all other per- sons. See Lake Shore & Michigan Southern Ry. Co. v. Smith, supra, pp. 694, 695; Interstate Railway Co. v. Massachusetts, supra.
For these reasons I am of opinion that a statute "requiring street railway companies to carry free on their passenger cars United States letter carriers in uniform, in the city or town in which they are employed," would not be constitutional and valid.
Intoxicating Liquors — License — Licensed Place — Licensed Premises.
In R. L., c. 100, § 13, as amended by St. 1910, c. 476, § 1, providing in part that "in cities and towns which vote to authorize the sale of intoxicating Hquors, the number of places licensed for the sale of such liquors shall not exceed one for each one thousand of the population," and that " Nowhere in the common- wealth shall a fourth or fifth class license be granted to be exercised upon the same premises with a license of any of the first three classes" with certain exceptions therein stated, the words "licensed places" must be construed to mean places where a license is to be exercised, and such places are identical with licensed premises, except where two or more licenses are granted to the same person to be exercised upon the same premises.
A proposed bill providing that a licensed place "may consist of one or more rooms or premises adjoining but having no interior connection or means of com- munication with each other," would directly affect the provisions of R. L. c. 100, § 13, as amended by St. 1910, c. 476, § 1, for the reason that under its provisions a license of the fourth or fifth class might be exercised with a license of any of the first three classes at a single licensed place, although in a room or rooms physically separated from those in which was exercised any license of the first three classes.
len&tt I have to reply to an order of the Honorable Senate request-
^^y\ ing my opinion upon the following questions of law: —
(1) Whether or not the provisions of section 1 of the bill now pending before the Senate, and printed as Senate Bill No. 454, a copy of which
JAMES M. SWIFT, ATTORNEY-GENERAL. 391
is transmitted herewith, directly or indirectly nullify or repeal the pro- visions of chapter 476 of the Acts of 1910, being an act relative to the granting of licenses for the sale of mtoxicating liquor?
(2) Is the definition of "Ucensed place" in the accompanying bill, printed as Senate Bill No. 454, inconsistent with the meaning of the "place which may be licensed" under the provisions of chapter 476 of the Acts of 1910?
(3) Does the existing law regarding the sale of intoxicating liquors permit two separate licensed rooms, if adjoining but having no interior connection or means of communication with each other, to be counted as one "place licensed for the sale of such liquors" within the meaning of chapter 476 of the Acts of 1910?
Section 1 of chapter 476 of Statutes of 1910 amended Re- vised Laws, chapter 100, section 13, by inserting at the ninth and tenth lines the following provision: —
Nowhere in the commonwealth shall a fourth or fifth class license be granted to be exercised upon the same premises with a license of any of the first three classes, except that a licensed innholder, who has a Ucense of any of the first three classes may likewise be granted a license of the fourth or fifth class for the purpose of supplying liquor to guests who have resorted to his inn for food or lodging.
Section 13, therefore, now reads as follows: —
In cities and towns which vote to authorize the granting of licenses for the sale of intoxicating liquors, the number of places licensed for the sale of such liquors shall not exceed one for each one thousand of the popula- tion as ascertained by the last preceding national or state census, but one such place may be licensed in any tow^n having a population of less than one thousand. In Boston, one such place may be licensed for each five hundred of the population, but in no event shall the total number of licensed places therein exceed one thousand. Nowhere in the common- wealth shall a fourth or fifth class license be granted to be exercised upon the same premises with a license of any of the first three classes, except that a hcensed innholder, who has a license of any of the first three classes may likewise be granted a license of the fourth or fifth class for the pur- pose of supplying hquor to guests who have resorted to his inn for food or lodging. No more than one hcense shall be granted by any one vote of the hcensing board. Such licenses shall be numbered in regular order as granted, and any license granted contrary to, or in excess of, the pro- visions of this section shall be void; but in a town voting as aforesaid at its last annual town meeting which has less than fi^•e thousand permanent
392 OPINIONS OF THE ATTORNEY-GENERAL.
residents according to the last preceding state or national census but has an increased resident population during the summer months, the selectmen may, on or before the fifteenth day of May in any year, apply to the chief of the bureau of statistics of labor to have an enumeration made of the temporary or summer residents of such town. Said chief shall there- upon make such enumeration, between the twenty-third and the twenty- eighth day of June next following, under such rules as he shall establish. A person who has not been a resident of such town for at least three days preceding the enumeration shall not be regarded as a temporary or sum- mer resident thereof. Said chief may employ, for such enumeration, such persons as may be necessary, who shall in all cases be residents of the town if suitable and competent persons can be found; otherwise, non-residents may be employed. The chief shall report the total number of such temporary or summer residents to the selectmen of the town on or before said twenty-eighth day of June. The expenses incurred in making such special enumeration shall be paid by the commonwealth. The treasurer and receiver general shall thereupon issue his warrant, as provided in section thirty-four of chapter twelve, requiring the assessors of such town to assess a tax to the amount of the expense incurred in making this special enumeration, and such amount shall be collected and paid over to the treasurer and receiver general in the same manner as other state taxes. The selectmen may, in April, receive apphcations for such licenses and investigate and publish the same; and may gi"ant one such license for each five hundred of such temporary resident popu- lation, not including the permanent inhabitants of such town, as ascer- tained by said special enumeration, to take effect on the first day of July and to expire on the fii'st day of October next following. A selectman, member of a licensing board or census enumerator who violates any pro- vision of this section shall be punished by a fine of five hundred dollars.
Section 18 of chapter 100 of the Revised Laws contains a definition of the five classes of licenses hereinbefore referred to.
First class. To sell liquors of any kind to be drunk on the premises.
Second class. To sell malt liquors, cider and light wines containing not more than fifteen per cent of alcohol, to be drunk on the premises.
Third class. To sell malt hquors and cider, to be drunk on the premises.
Fourth class. To sell liquors of any kind, not to be drunk on the premises.
Fifth class. To sell malt liquors, cider and light wines containing not more than fifteen per cent of alcohol, not to be drunk on the premises.
The bill which in the order of the Honorable Senate is stated to be now pending before that body provides in section 1 that —
JAMES M. SWIFT, ATTORNEY-GENERAL. 393
A license of the fourth or fifth class to sell intoxicating liquors may 6 granted and issued to be exercised with a license of any of the fu-st hree classes in any place Ucensed for the sale of intoxicating liquors. Vlthin the meaning of this act a licensed place may consist of one or lore rooms or premises adjoining but having no interior connection r means of communication vnih each other. Each hcense when so isued shall specify the room or rooms or premises in such licensed place 1 which each hcense is to be exercised and no sales of intoxicating Uquors hall be made under a fourth or fifth class hcense in any room or rooms pecified in a hcense of any of the first three classes, or ha\ang, except in censed inns, any interior connection or means of communication with de room or rooms where intoxicating liquor is sold under a license of ny of the first three classes.
The answers to the specific inquiries above quoted must de- icnd upon the definition given to the words "places licensed" s found in section 13 of chapter 100 of the Revised Laws, nd "licensed premises" as used in said chapter. The latter erm clearly signifies the premises described in the application or the license, and in the license itself, as those upon which uch license is to be exercised and enjoyed. See R. L., c. 100, § 14, 15 and 17.
Upon careful consideration of these and other provisions con- ained in chapter 100 of the Revised Laws, I am of opinion hat the "licensed places" referred to in section 13 must be onstrued to mean places where a license is to be exercised; or, n other words, the places of business described in the appli- ation for the license, in the notice of such application and n the license itself, as provided in sections 10, 13 and 14, and hat in meaning this phrase is identical wdth "licensed prem- ies," except in cases where two or more licenses are granted to he same person to be exercised upon the same premises, in U'hich case all such licenses, being exercised upon the same 'remises, would be exercised at one licensed place, and the umber of licensed places with reference to population would ot be increased thereby.
1 Upon this construction of the phrases "licensed premises" nd "licensed places," St. 1910, c. 476, § 1, as hereinbefore uoted, in providing that fourth and fifth class licenses shall
394 OPINIONS OF THE ATTORNEY-GENERAL.
not be granted to be exercised upon the same premises with a license of the first three classes, except in the case of a li- censed innholder, in effect requires that licenses of the fourth and fifth classes shall not be exercised at licensed places where a license of the first three classes is exercised, with the result that the number of licensed places will be increased to the ex- tent that fourth and fifth class licenses are granted to licensees who are not innholders and who must, therefore, exercise such licenses upon licensed premises not described in any license of the first three classes. Senate Bill No. 454, to which the first and second inquiries of the Honorable Senate are directed, de- fines a licensed place as "one or more rooms or premises ad- joining but having no interior connection or means of com- munication with each other," and provides that a license of the fourth and fifth classes may be exercised at the same licensed place with a license of any of the first three classes, or, in substance, that a licensed place may include tw^o or more licensed premises described in separate licenses. Such, in my opinion, being the effect of the proposed bill, I reply specifically to the inquiries of the Honorable Senate as follows : —
1. I am of opinion that while Senate Bill No. 454 cannot be said to directly or indirectly nullify or repeal the provisions of chapter 476 of the Acts of 1910, it does directly affect such provisions in that, under existing laws, as above construed, a fourth or fifth class license may not be exercised in the same licensed place or upon the same premises with a license of the first three classes, whereas, under the proposed bill a license of the fourth or fifth class may be exercised wdth a license of any of the first three classes at a single licensed place although not upon the same licensed premises, with the result that the num- ber of licensed places will be substantially the same as they were before the enactment of St. 1910, c. 476, although Ucenses of the fourth and fifth classes must still be exercised in a room or rooms physically separated from the room or rooms in which was exercised any license of the first three classes.
2. I am of opinion that the definition of "licensed places", in Senate Bill No. 454 is inconsistent with the definition of
JAMES M. SWIFT, ATTORNEY-GENERAL. SDj
the "place which may be licensed" as referred to in R. L., ?. 100, § 13, as amended by St. 1910, c. 476, for the reason ■hat under existing laws a place which may be licensed or a icensed place is substantially identical with the phrase "li- censed premises," where only one license is exercised upon such j oremises.
! 3. This inquiry in terms purports to require my opinion upon :he question whether or not existing law regarding the sale )f intoxicating liquor permits two separate licensed rooms to 36 counted as one place licensed for the sale of liquor, within . :he meaning of R. L., c. 100, § 13, as amended by St. 1910, ;. 476, § 1. Replying, therefore, to the inquiry as phrased, I am of opinion that under the conditions described therein the rooms might be considered as a single place "licensed for the sale of such liquors," within the meaning of the section cited, if they were both described as the "licensed premises" in an application for a single license of any one of the five classes, and were used in the exercise of such license, or if they were both described in two or more applications for licenses of dif- ferent classes which may be legally exercised by the same li- censee, as, for instance, an innkeeper. Upon the other hand, such rooms could not be countec^ as one such licensed place if each were described in a separate application for a license of any one of the five classes, or if one were described in an appli- cation for a license for one of the first three classes and the other were described in an application for a license of the fourth or fifth class. I assume, however, that the Honorable Senate in fact desires to be advised whether or not, if a license of any one of the first three classes be exercised in one of the rooms described in the inquiry, and a Hcense of the fourth or fifth class be exercised in the other room so described, the two rooms together may be counted as one licensed place; and upon this assumption I am constrained to answer in the negative. Each room, being described as the licensed premises in a separate license, is, in my opinion, a place licensed for the sale of such liquors within the meaning of R. L., c. 100, § 13, as amended by St. 1910, c. 476, § 1.
396 OPINIONS OF THE ATTORNEY-GENERAL.
Constitutional Law — Rates — Street and Elevated Railway Corporations — Boston Elevated Railway Company — Impairment of obligation of Contract — Discrimination — Equal Protection of Law.
A proposed bill, providing that "on all street and elevated railways in this common- wealth the fares which are now five cents shall be reduced to three cents between the hours of six and eight in the morning and five and seven in the evening," would, in the case of the Boston Elevated Railway Company, be unconstitutional and void because it would impair the obligation of the contract established by the charter of that corporation (St. 1907, c. 500, § 10) authorizing such corporation to establish and take a toll or fare not exceeding five cents, which sum should not be reduced by the Legislature during a period of twenty-five years after the passage of such statute. Such proposed bill would not be unconstitutional as to other street or elevated railway corporations as constituting so unjust a discrimination in favor of the Boston Elevated Railway Company and against such other companies as to deny the latter the equal protection of the laws.
To the Com- Yoli havc requested my opinion as to whether House Bill
mittee on n i/ i
wayl*^^*'" -^^o- 1370, if enacted, would be constitutional. This bill is in
1911
jiayV the following terms ;
Section 1. On all street and elevated raihvaj's in this commonwealth the fares which are now five cents shall be reduced to three cents between the hours of six and eight in the morning and five and seven in the evening.
Section 2. Violation of this act, shall be punished by fine or imprison- ment at the discretion of the court.
That the Legislature has the power to regulate the rates of fare on street and elevated railways within the Commonwealth cannot be doubted. Boio v. Beidelman, 125 U. S. 680; Smyth V. Ames, 169 U. S. 466; Minneapolis & St Louis R.R. Co. v. Minnesota, 186 U. S. 257; Interstate Railway Co. v. Massachu- setts, 207 U. S. 79; S. C, sub nomen Commonwealth v. Inter- state Consolidated Railway Co., 187 Mass. 436. This power, however, does not extend to the regulation of foreign or inter- state commerce. Wabash, St. Louis & Pacific R.R. Co. v. Illinois, 118 U. S. 557. , It must not be so exercised as to im- pair the obligation of any contract contained in the charter of a street or elevated railway company (Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174, 179; Stone v. Farmers'
JAMES M. SWIFT, ATTORNEY-GENERAL. 39^
[oan & Trust Co., 116 U. S. 307, 325), or to deny to the com- )any the equal protection of the laws, or to deprive it of prop- ■rty without just compensation and without due process of law. Jee cases supra.
A rate-regulating statute which exceeds the power of the legislature in any of these respects is, of course, unconstitu- ional. Whether such a statute is beyond the legislative power lepends upon the facts in each specific case. A rate-regulating tatute may be constitutional as to one street or elevated rail- v-ay company and unconstitutional as to another. It may be onstitutional at one time as to a street or elevated railway ompany and at another time be unconstitutional as to the same ompany. Smyth v. Ames, 171 U. S. 361, 365. I cannot, herefore, give you an opinion of universal application, nor lave I the facts before me upon which to give you an opinion IS to specific cases except as to the Boston Elevated Railway Company.
In the case of the Boston Elevated Railway Company the )ill, if enacted, would be unconstitutional because impairing the )bligation of the contract contained in the charter of that cor- Doration. St. 1897, c. 500, § 10, authorizes that corporation ;o "estabhsh, and take a toll or fare, which shall not exceed :he sum of five cents for a single continuous passage in the same general direction on the roads owned, leased or operated by it," ind provides that "this sum shall not be reduced by the legis- ature during the period of twenty-five years, from and after :he passage of this act," with a proviso that the Board of Rail- 'oad Commissioners may, upon petition, after notice and hear- ng, reduce such toll or fare, but that such toll or fare shall lot, without the consent of the corporation, be so reduced as to deld less than a certain fixed income. This provision, as I lave already advised you in an opinion in regard to the con- >titutionality of House Bill No. 1164, undoubtedly creates a contract between the Commonwealth and the Boston Elevated Railway Company. 2 Op. Atty.-Gen. 261, 426, 429; Opinion 3f the Attorney-General to the House of Representatives, April -'2, 1911. The right to charge a toll or fare of five cents, which
298 OPINIONS OF THE ATTORNEY-GENERAL.
shall not be reduced except in a prescribed manner, is of the essence of the contract. A change in this particular is clearly an impairment of the contractual rights of the company under its charter. Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368, 398; Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 417, 434; see, also, Interstate Ry. Co. v. Massachusetts, supra, p. 86.
Since the bill, if enacted, would be unconstitutional as to the Boston Elevated Railway Company, it may be urged that it would therefore be unconstitutional as to all other street and elevated railway companies, for the reason that it denies to them the equal protection of the laws in that it requires them to carry passengers at a lower rate than that fixed for passen- gers upon the lines of that corporation. In the absence of the facts of each specific case, however, I cannot say that there is not a reasonable ground for distinction between that corpora- tion and all other street and elevated railway companies. See Interstate Ry. Co. v. Massachusetts, supra, p. 85; Covington & Lexington Turnpike Co. v. Sandford, 164 U. S. 578, 597, 598. But even if the facts of each case do not justify the distinction between the Boston Elevated Railway Company and other companies, the fact that the former car^not be subjected to the act in question without violating its contractual rights, which are protected b}^ the Constitution, is probably in itself suffi- cient to justify the discrimination. As was said by Mr. Justice Holmes in Interstate Ry. Co. v. Massachusetts, supra, p. 85: —
If the only ground were that the charter of the Elevated Railway contained a contract against the imposition of such a requirement, it would be attributing to the Fourteenth Amendment an excessively nice operation to say that the immunity of a single corporation prevented the passage of an otherwise desirable and wholesome law.
It may be, though I do not think so, that the bill, if enacted in its present form, would not be held to be separable, and that since unconstitutional as to the Boston Elevated Railway Com- pany it would be unconstitutional as to all street and elevated railway companies. I cannot, however, conceive of any way in
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 399
v'hich this question can be raised, since companies other than he Boston Elevated Railway Company could object to the stat- ite only on the ground that it was unconstitutional as to them, lee Hatch v. Reardon, 204 U. S. 152, 160; Interstate Ry. Co. -. Massachusetts, supra. I am therefore of opinion that the till, if enacted, would not be unconstitutional as to companies ther than the Boston Elevated Railway Company on the round that it discriminated against them.
As to whether it would be unconstitutional as to such other ompanies on other grounds, it is, as I have said, impossible to etermine upon the facts before rne. Whether in any case it rould be unconstitutional as interfering with foreign or inter- tate commerce, or as impairing the obligation of a contract, ould readily be determined. Whether in any case it deprives
corporation of its property without just compensation and without due process of law involv^es a detailed knowledge as to he financial condition of the corporation and the amount of lusiness done by it.
I advise you, therefore, that in my opinion the bill, if en- cted, would be unconstitutional as to the Boston Elevated lailway Company, and that it would not be unconstitutional -S to other street and elevated railway companies on the Tound that it discriminated between them and the Boston illevated Railway Company, but that no further advice can )e given as to its constitutionality as to such other companies ipon the facts before me.
400 OPINIONS OF THE ATTORNEY-GENERAL.
• Constitutional Law — Contract — Boston Elevated Rail- way Company — Free Transfers.
St. 1897, c. 500, § 10, which provides that the Boston Elevated Railway Company may "establish, and take a toll or fare, which shall not exceed the sum of five cents for a single continuous passage in the same general direction upon the roads owned, leased or operated by it," which "sum shall not be reduced by the legislature during the period of twenty-five years, from and after the passage of this act," with the further provision that the Board of Railroad Commissioners may, upon petition and after notice and a hearing, reduce such toll or fare, but that such toll or fare shall not, without the consent of the corporation, be so reduced as to yield less than a certain fixed income, and which further provides that "said corporation shall also provide free transfer from elevated to surface and from surface to elevated cars at all stations of the elevated lines reached by surface lines and from one elevated car or train to another at junction points entitling a passenger to a continuous ride in the same general direction," and such further free transfers on all the surface lines as may be required by the Board of Railroad Commissioners, created a contract between the Commonwealth and the Boston Elevated Railroad Company; and a proposed amendment to the section above quoted, providing in part that such corporation "may establish for its sole benefit a toll or fare which shall not exceed the sum of five cents for a single continuous passage between the terminals and transfer points of said roads, and transfer checks shall be issued or transfers made on demand without additional pay- ment, which shall entitle the passenger to a continuous ride from any station or transfer point to any other station or transfer point on the system," such transfers to be issued from and between midnight and six o'clock in the morning, on cars leaving certain specified stations, so as to render to passengers the same amount of service during the hours from midnight to six o'clock in the morning for the same fare as they receive during the other hours of the day, is unconstitutional and void, for the reason that it changes the require- ments as to transfers established by such contract.
mhteeon™' ^^^ havc Tequestcd my opinion as to whether House Bill
street Railways. js^T^. 11G4, if enacted, would be constitutional. This bill is May_3^ , entitled "An Act relative to free transfers on the cars of
the Boston Elevated Railroad Company," and amends St. 1894, c. 548, by substituting for section 16 thereof a new section. As St. 1894, c. 548, § 16, is not now in force, having been repealed by St. 1897, c. 500, § 22, it is obvious that the bill is not in proper form. I assume, however, that the intention is to amend St. 1897, c. 500, § 10, which is the section now in force dealing with the same subject-matter, and I answer your ques- tion upon that assumption.
From the title of the bill and from the petition which accom- panies it, I infer that the purpose of the bill is to change the
JAMES M. SWIFT, ATTORNEY-GENERAL. 401
equirement as to transfers, and I therefore consider primarily ts constitutionality in this aspect.
St. 1897, c. 500, § 10, authorizes the Boston Elevated Rail- vay Company to "establish and take a toll or fare which shall lot exceed the sum of five cents for a single continuous passage n the same general direction upon the roads owned, leased or )perated by it," which "sum shall not be reduced by the legis- ature during the period of twenty-five years, from and after he passage of this act," with a provision, however, that the Board of Railroad Commissioners may, upon petition, after lotice and hearing, reduce such toll or fare, but that such toll )r fare shall not, without the consent of the corporation, be so •educed as to yield less than a certain fixed income. The lection further provides that —
Said corporation shall also provide free transfer from elevated to surface ind from surface to elevated cars at all stations of the elevated lines •cached by suiiace lines and from one elevated car or train to another it junction points entitling a passenger to a continuous ride in the same general direction, and such further free transfers on all the surface lines )f railway owned, leased or operated by it, as may be satisfactory to or •equired by the board of raili'oad commissioners.
The proposed act provides, in part, as follows : —
Said corporation may establish for its sole benefit a toll or fare which ihall not exceed the sum of five cents for a single continuous passage between the terminals and transfer points of said routes. And transfer checks shall be issued or transfers made on demand, ^\'ithout additional Dayment, which shall entitle the passenger to a continuous ride from any station or transfer point to any other station or transfer point on the system ind said transfers shall be issued from and between the hours of twelve nidnight and six in the morning on cars leaving and arriving at Adams square, Hanover street, ScoUay square and Northampton street, Boston, 'md Harvard square, Cambridge, and Uphams Corner, Dorchester, so xs to render passengers the same amount of service during the hours of welve midnight and six in the morning for the same fare as they receive luring the other hours of the daj^
The provisions of St. 1897, c. 500, § 10, undoubtedly created I contract between the Commonwealth and the Boston Elevated
402 OPINIONS OF THE ATTORNEY-GENERAL.
Railway Company (2 Op. Atty.-Gen. 261, 426, 429; Opinion of the Attorney-General to the House of Representatives, April 22, 1911), and this contract is still in force. The right to charge a toll or fare of a fixed amount which shall not be re- duced except in a prescribed manner is of the essence of the contract. So is the limitation as to the transfers which may be required. A change in the rate other than in the prescribed manner, or, what is equivalent thereto, a change in the require- ments as to transfers, is an impairment of the contractual rights of the company. See Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368, 398; Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 417, 434; see also. Interstate Ry. Co. v. Massachusetts, 207 U. S. 79, 86.
The proposed act clearly changes the requirements as to transfers. It substitutes for a requirement that the corpora- tion shall provide "such further free transfers on all the surface lines of railway owned, leased or operated by it, as may be satisfactory to or required by the board of railroad commis- sioners," certain absolute requirements. It is immaterial that the railroad commissioners might make even more stringent re- quirements than are made by the proposed act. The corpora- tion is entitled to have the requirements made in the manner fixed by its contract. To this extent at least, the bill, if enacted, would be unconstitutional. I do not imply that there are not other aspects in which it would be unconstitutional.
JAMES M. SWIFT, ATTORNEY-GENERAL. 403
rOVERNOR — STATEMENT OR ESTIMATE OF PROPOSED ExPEXDI-
TURES — Investigation of Officers, Departments or Institutions of the Commonwealth — Employment of Agents or Experts.
he authority of the Governor under St. 1910, c. 220, § 1, in substance requiring that certain statements and estimates should be submitted to the Governor and Council, and that the Governor should transmit the same to the General Court with such recommendations, if any, as he might deem proper, was not extended by the provisions of St. 1911, c. 82, authorizing him "to employ such persons as he may deem proper to make such investigation of any of the commissions, departments or institutions of the commonwealth as he believes is necessary to enable him to carry out the provisions of chapter two hundred and twenty of the acts of the year nineteen hundred and ten," and his power to investigate, by means of agents, investigators or experts employed under the provisions of the chapter last cited, any officer, depart- ment or institution, must be predicated upon the existence of a statement of proposed expenditures and of other matters required by St. 1910, c. 220, which is to be transmitted to the Legislature, follows, therefore, that after the Governor has transmitted to the Legislature the statements or estimates of expenditure in relation to any particular officer, department or institution there is no longer authority or occasion for any such investigation.
You submit for my consideration a communication dated .p°g^^rgr lay 8, 1911, in which you say, in part, that— Gene^r''"''
Under authority of His Excellency the Governor, given by chapter I of the Acts of the year 1911, on or about the middle of March last, [r. Harvey S. Chase began an investigation of the department of the reasurer and Receiver-General. He was granted free access to eveiy 3ok and record in the department and there was sho^\^l and explained to m ever\'thing he desired.
On March 28 he rendered a report to the Governor, the Executive ouncil and the joint committee on ways and means. This report was nt to the Legislature by the Governor and referred to the joint committee • 1 ways and means.
lid, further, that Mr. Chase —
I IS demanded of me the privilege of further investigating this apartment and thus covering the same ground of his previous in- 5stigation. I desire, therefore, to be advised of the extent of the authority for
1911 May 11.
404 OPINIONS OF THE ATTORNEY-GENERAL.
investigating this department given by chapter 82 of the acts of the General Court of this year.
You further state that Mr. Chase was appointed by the Gov- ernor to conduct an investigation, on March 17, 1911, by a written authority, in part as follows : —
Acki^owledging your favor of to-daj', you are hereby authorized to conduct an investigation in regard to the offices of the Treasurer, . . . in accordance with the provisions of the legislative act approved ]\Iarch 2, 1911, a copy of which is hereto attached.
Said chapter 82 of the Acts of 1911 did not extend the gen- eral power of the Governor with respect to investigations, as defined and described in an opinion rendered to the Governor by the Attorney-General, dated April 26, 1909. The statute was passed solely for the purpose set forth therein, namely, to enable the Governor "to carry out the provisions of chapter two hundred and twenty of the acts of the year nineteen hun- dred and ten," which is the so-called "Walker act."
The effect of this latter statute was determined by the Su- preme Court in an opinion of the justices to the Senate, dated April 7, 1911, which is, in part, as follows: —
The St. of 1910, c. 220, has made but a very small change in the law of the Commonwealth. . . .
The only new pro\dsion in this particular is the requirement that it [estimates and statements] shall be submitted "to the governor and council for examination, and the governor shall transmit the same to the general court wdth such recommendations, if any, as he may deem proper." . . . Under this statute, after the document has been printed it is to be formally submitted to the Governor and Council for examination as well as distributed to the members of the General Court; while mider the former statute the governor was left to obtain a copy as he might. Under the present statute he is to transmit it to the General Court, so that they may know that he has had an opportunity to examine it, and he may make recommendations or not, as he chooses. . . . The only material effect of this statute is to give a legislative invitation to the Governor to examine the documents prepared by the Auditor, and to make recom- mendations upon the subjects contained in them if he chooses, and also
JAMES M. SWIFT, ATTORNEY-GENERAL. 405
0 give him an implied assurance that his recommendations as to the .mount of the appropriations will receive respectful consideration.
The duty and power of the Governor in the premises, there- ore, being confined to the transmission of the statements of stimates for appropriations submitted to the Auditor by the 'arious State officers, boards and commissions, and transmitted )y the Auditor to the Governor, to be accompanied by a recom- nendation or not, as he sees fit, it follows that his power to nvestigate any officer, department or institution must be predi- cated upon the existence of a statement of proposed expendi- ures and of other matters required by St. 1910, c. 220, which nay be transmitted by him to the -Legislature. The employ- nent of agents, investigators and "experts" is only such as he Governor believes is necessary to enable him to carry out he provisions of said St. 1910, c. 220. If there are no such ;stimates for the current year before him for transmission, and ipon which before transmission he seeks further information, it oUows that there is no authority or occasion for any investi- gation under said St. 1910, c. 220, or St. 1911, c. 82.
With reference to this you state that —
The regular appropriations for salaries and expenses of this department vere approved by the Governor on February 11, being chapter 2'3 of he acts of this year, and on February 17 His Excellency sent a special nessage to the House of Representatives recommending the enactment )f a bill authorizuig the payment of the sum of S3-13,691, the sinking :und requirements for the pajment of the direct debt of the Common- .vealth for the year 1911, and $167,833.33 for the payment of certain serial bonds falling due during said year. This bill was passed and ap- aroved by His Excellency on INIarch 17, being chapter 157 of the acts Df this year.
It appears, therefore, that when Mr. Chase was first ap- pointed by the Governor the statement or estimate of expenses from the department of the Treasurer, which had been before the Governor under the requirements of said St. 1910, c. 220, bad already been transmitted to the Legislature by the Gov- lernor, and the appropriation had been made and approved by the
406 OPINIONS OF THE ATTORNEY-GENERAL.
Governor. Further, it appears that the statement with refer- ence to the sinking funds had also been transmitted to the Legislature and had been enacted into law, with the approval of the Governor. So far, then, as relates to the department of the Treasurer itself, or to the sinking fund requirements, the Governor did not have before him any statement or estimate under the provisions of said St. 1910, c. 220. There was, there- fore, no ground for an investigation by the Governor, or his agent, "to enable him to carry out the provisions of chapter two hundred and twenty of the acts of the year nineteen hun- dred and ten," as specified in St. 1911, c. 82. I am of opinion, therefore, that so far as relates to the operation, maintenance! and management of the department of the Treasurer and Receiver-General Mr. Chase w^as without authority from the beginning, and that the investigation that has been made w^as made by the consent and with the acquiescence of the Treasurer.
I am of opinion, therefore, that as Mr. Chase has no au- thority to conduct an investigation into the management or methods or details of the department of the Treasurer and Re- ceiver-General, you are within your rights in refusing him per- mission so to do.
Constitutional Law — Public Park — Change of Use — Back Bay Fens — Proprietary Rights.
It is within the power of the Legislature to authorize the park commissioners of the city of Boston to permit the erection of a public schoolhouse upon land known as the Back Bay Fens, acquired in fee by the city of Boston under authority of St. 1875, c. 185, which provided in section 3 that such com- missioners should "have the power to locate within the limits of the city of Boston one or more public parks, and for that purpose from time to time to take in fee, by purchase or otherwise, any and all such lands as said board may deem desirable therefor, ..." since the proposed use of the land in question is undoubtedly for a public use and no proprietary rights will be afifected thereby.
Se°nate. ^ have the honor to acknowledge the receipt of an order of
May 11. the Honorable Senate requiring my opinion upon the following
question of law: "Are the provisions of section 1 of the bill
JAMES M. SWIFT, ATTORNEY-GENERAL. 407
)rinted as Senate, No. 441, now pending in the Senate, a copy )f which is transmitted herewith, constitutional? " The section to which the order refers is as follows : —
Section 1. The park commissioners of the city of Boston are hereby luthorized, upon the request of the schooUiouse commissioners of the •aid city, -with the approval of the school committee of said city, to pei-mit he erection of a building for the high school of commerce within the imits of the Back Bay Fens in said city of Boston.
The Back Bay Fens, so called, were acquired in 1877 by the )ark commissioners of the city of Boston, under authority of 5t. 1875, c. 185. This statute provided in section 3 that said commissioners should "have power to locate within the limits )f the city of Boston one or more public parks; and for that purpose, from time to time, to take in fee, by purchase or other- ,vise, any and all such lands as said board may deem desirable :herefor; . . ." By section 6 it was provided that —
The fee of all lands taken or purchased by said board under this act ihall vest in the city of Boston, and said citj'' shall be liable to pay all lamages assessed or determined, as provided in the preceding section, and ill other costs and expenses incurred by said board in the execution of the oowers vested m them by this act. Said city shall also be authorized to :ake and hold in trust or otherwise any devise, grant, gift or bequest that aaay be made for the purpose of laying out, improving or ornamenting my parks in said city.
Section 17 contained a provision making the act effective upon acceptance by a majority of the legal voters of the city of Bos- ton present and voting; and the act was accepted in accord- ance with such provision on June 9, 1875. I am informed by the corporation counsel of the city of Boston that the park dommissioners acquired title by purchase and without con- dition, and that in order to perfect the title of the city said lands were subsequently taken in fee under authority of the provision of St. 1875, c. 185, § 3, above quoted.
From this statement of the situation it appears that the Back Bay Fens are held for park purposes and that the fee therein
408 OPINIONS OF THE ATTORNEY-GENERAL.
is in the city of Boston. The question is whether it is within the power of the Legislature to authorize the park commis- • sioners of said city to permit the erection of a public school- house upon this land now held for park purposes.
This question must, in my opinion, be answered in the affirmative. The proposed use of the land in question is un- doubtedly for public purposes. The legal title to the land, though acquired at the expense of the city, is held by it in trust for the public. Holt v. City Council of Somerville, 127 Mass. 408. The Legislature represents the interests of the public and controls the use which is made of the park. No action on the part of tax-paying citizens or voters or of the city council is required. Codman v. Crocker, 203 Mass. 146, 152, 153. The power of the Legislature in this respect is ex- tensive. In Commonwealth v. Davis, 162 Mass. 510, 511, the court pointed out that "when no proprietary right interferes, the Legislature may end the right of the public to enter upon the public place by putting an end to the dedication to pubHc uses. So it may take the lesser step of limiting the public use to certain purposes." On this principle it may, it seems, sub- ject to this limitation, change the public use. Cj. Mt. Hope Cemetery v. Boston, 158 Mass. 509, 511. This principle is, therefore, broad enough to justify the proposed act if such act does not affect proprietary rights. Upon the facts before me it does not appear that there are any proprietary rights which will be affected by the erection of a schoolhouse in the park. Upon that assumption, the provisions of section 1 of the bill are, therefore, constitutional.
JAMES M. SWIFT, ATTORNEY-GENERAL. 409
Constitutional Law — Taxation — National Banks — Tax on Deposits.
A. proposed bill, in substance imposing upon all or certain of the deposits in national banks within the Commonwealth an annual tax of not more than one half of one per cent., if enacted, would be unconstitutional as a tax upon the property of the depositors or upon the property of the bank because it is not proportional within requirement of the Constitution of Massachusetts, Part II., c. 1, § 1, Art. IV., that taxes levied upon property must be "pro- portional and reasonable."
Such a bill would also be unconstitutional as a tax upon the property of the bank because it is in confhct with Revised Statutes of the United States, § 5219, which restricts the power of a State to tax national banks to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank.
As an excise upon the privileges of the depositors, such bill would be unconstitutional because the mere right to take and hold property cannot be made the subject of an excise tax; and as an excise upon any privileges of the bank, it would be unconstitutional because it would be in conflict with the provisions of Re-^-ised Statutes of the United States, § 5219, above cited.
In behalf of the committee on wavs and means of the House To the House
"" , , Committee on
of Representatives you have requested my opinion as to ];^jg^^3^°^ whether or not House Bill No. 1827 is constitutional, "and yi^^J:\^ whether the State can legislate on a matter of this kind per- taining to national banks." House Bill No. 1827 is as follows: —
Sectiox 1. The provisions of chapter three hundred and forty-two of the acts of the year nineteen hundred and nine shall apply to national banks ha\'ing a place of busmess in the commonwealth of Massachusetts, and said provisions shall only apply to such of the deposits therein re- ferred to as do not exceed in amount the limits imposed upon deposits in savings l^anks by section forty-six of chapter five hundred and ninety of the acts of the year nineteen hundred and eight and acts in amendment thereof and addition thereto.
Section 2, This act shall take effect upon its passage.
St. 1909, c. 342, referred to in this bill, imposes upon "every trust company having a savings department, ... an annual tax on the amount of its deposits therein," substantially such as is imposed upon savings banks (St. 1909, c. 490, part HI., §§ 21-23), — that is, "an annual tax of one half of one per cent on the amount of its deposits," — except that for the
410 OPINIONS OF THE ATTORNEY-GENERAL.
years 1910, 1911 and 1912 a smaller rate is fixed; and section 4 exempts from local taxation deposits taxed under the provi- sions of that act. St. 1908, c. 590, § 46, as amended, referred to in the bill, permits savings banks to "receive on deposit from any person not more than one thousand dollars," and to allow interest thereon, "and upon the interest accumulated thereon, until the principal, with the accrued interest, amounts to two thousand dollars." See St. 1909, c. 491, § 7. The effect of the bill, if enacted and valid, would be to impose upon all or certain of the deposits in the national bank an annual tax of not more than one half of one per cent. It is not necessary for me to consider the construction of the act, since upon any construction it is, in my opinion, invalid upon fundamental grounds.
The Constitution of this Commonwealth contains two provi- sions authorizing taxation, which are to be found in Part II., c. I., § I., Art. IV. The General Court is authorized to "im- pose 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 prod- uce, goods, wares, merchandise, and commodities whatsoever, brought into, produced, manufactured, or being within the same; . . ." In substance, the first provision authorizes pro- portional and reasonable taxes upon property; the second, rea- sonable excises upon privileges.
Section 5219 of the Revised Statutes of the United States "is the measure of the power of a State to tax national banks, their property or their franchises. By its unambiguous provi- sions the power is confined to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank. Any state tax therefore which is in excess of and not in conformity to these requirements is void." ' Owenshoro National Bank v. Oweiishoro, 173 U. S. 664, 669. See also Third National Bank of Louisville v. Stone, 174 U. S. 432.
The tax sought to be imposed by the bill in question would be unconstitutional as a tax upon the property of the depositors
JAMES M. SWIFT, ATTORNEY-GENERAL. 411
\3T upon the property of the bank because not proportional (Opinion of the Justices, 195 Mass. 607); and as a tax upon the property of the bank would be void because in conflict with the federal statute referred to. It would be unconstitu- tional as an excise upon the privileges of the depositors, for the depositors are merely owners of money on deposit, that is, creditors of the bank, and "the mere right to own and hold property" such as this "cannot be made the subject of an ex- cise tax" (Opinion of the Justices, supra, p. 614); and would be void as an excise upon any privilege of the bank, because in 3onflict with the federal statute referred to. The tax cannot in any view be considered as a tax on the "shares of stock in the names of the shareholders" or "an assessment of the real estate of the bank." See Owensboro National Bank v. Owens- boro, supra.
Citizen — Voters — Formation of Credit Union.
Under the provision of St. 1909, c. 419, § 3, that "seven or more citizens of this commonwealth who have associated themselves by an agreement in writing for the purpose of forming a credit union, may . . . become a corporation . . .," the persons signing such agreement need not be voters.
By your letter of May 23 vou require mv opinion "as to To the Bank
•^ "^ ^ ^ ^ " ^ Commissioner.
whether the law (St. 1909, c. 419, § 3) requires all of the ap- ^^^sii^^. plicants for a credit union to be citizens in the sense that I they must be voters." •
The section cited provides that —
Seven or more citizens of this commonwealth who have associated themselves by an agreement in writing for the piu-pose of forming a credit union may, with the consent of the board of bank incorporation, become a corporation upon complying with all the provisions of section three of chapter one hundred and fourteen of the Revised Laws, except those which relate to the Ihnit of capital to be accumulated.
Your letter states you have before you an agreement of asso- ciation signed "by seven applicants, only five of whom are naturalized citizens of this Commonwealth." I assume the two remaining applicants are unnaturalized aliens.
412 OPINIONS OF THE ATTORNEY-GENERAL.
The language of the section above quoted is explicit and re- quires that all the parties to the agreement therein provided for must be citizens of the Commonwealth. An unnaturalized alien is not a citizen of the United States, and therefore cannot be- come even by residence a citizen of the Commonwealth. It follows that the board of bank incorporation may not consent to the formation of a corporation by such applicants.
Replying to your specific inquiry, however, I have to advise you that the act does not require that citizens who may associ- ate themselves for the purpose of forming a credit association should be voters. A citizen is not necessarily a voter.
May 31.
Mekcantile Establishment — Premises of Telegraph
Company.
Premises maintained by a telegraph company do not constitute a mercantile establishment within the pro\'ision of St. 1909, c. 514, § 17, that, "'mercan- tile establishments ' shall mean any premises used for the purpose of trade in the purchase or sale of any goods or merchandise, and any premises used for the purposes of a restaurant or for publicly providing and serving meals."
Chief of the ^^ ^ Communication dated May 19 you request my opinion
^mT* ^°'"'°' upon the question whether or not the Postal Telegraph Com- pany and similar corporations are to -be considered as mer- cantile establishments, and therefore as coming within the provision of St. 1909, c. 514, § 56, that "no child under the age of fourteen years, and no child who is over fourteen and under sixteen years of age who does not have a certificate as required by the four following sections . . . shall be employed in any factor}'-, workshop or mercantile establishment."
The act in which the above provision of law is found is a codification of the laws relating to labor, and in section 17 cer- tain words and phrases as used in such codification, including the phrase "mercantile establishments," are defined. The pro- vision is as follows : —
"Mercantile establishments" shaU mean any premises used for the purposes of trade in the purchase or sale of any goods or merchandise, and any premises used for the purposes of a restaurant or for publicly pro\iding and serving meals.
JAMES M. SAVIFT, ATTORNEY-GENERAL. 413
I am of the opinion that the premises maintained by the Postal Telegraph Company are not used for the purposes of trade in the purchase or sale of any goods or merchandise, or for the purposes of a restaurant or for publicly providing and serving meals. It follows, therefore, that such premises are not to be considered as a mercantile establishment.
Hours of Labor — Vacations — Persons employed at State House — Governor — Governor and Council.
Neither the Governor nor the Governor and Council have any power to determine the hours of labor or the length of vacations for persons employed at the State House.
You have requested my opinion as to "what power, if any, xothe the Governor or the Governor and Council have with regard isn,
" June 1.
to determining the hours of labor for employees at the State
House, and with regard to the length of their vacations."
In my opinion neither the Governor nor the Governor and Council have any power in regard to the hours of labor for employees at the State House, or in regard to their vacations, except so far as they may have power over employees in the executive department. The hours of labor of the different em- ployees are to be determined, in my opinion, by the head of the department in which such employee is employed. So long as such heads of departments act reasonably there is apparently no authority in any one to interfere.
I am aware that on July 15, 1872, the Council adopted the following order : —
Ordered, That all persons employed in the various departments in the State House shall be on duty daily from 9 o'clock a.m. to 4 o'clock p.m., with an intemiission of one hour for dinner; and that a vacation not longer than one month be allowed to each employee.
This was apparently adopted under authority of St. 1S6G, c. 67, which gave to the Executive Council the right to fix the ofBce hours of the departments. This statute, however, was repealed by St. 1879, c. 236.
414 OPINIONS OF THE ATTORNEY-GENERAL.
Constitutional Law — Governor — Bills and Resolves — Action — Five Days — Sundays — Holidays.
Under the provision of the Constitution of the Commonwealth, Part II., c. I., § I., Art. II., that "if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law," the governor is to be allowed five full days, beginning at 12 o'clock midnight next following the time when the bill is presented, in which to exercise his right either to signify his approval by signing such bill or to return it with his objections in writing to the Senate or House of Rep- resentatives.
In computing such period of five days, Sunday is to be excluded and holidays included.
To the I have the honor to reply to the inquiry of Your Excellency,
Governor. ^ "^
Junl\ transmitted to me through your secretary, whether or not,
under the provision of the Constitution of the Commonwealth, Part the Second, Chapter I., section I., Article II., "if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law," the five days may be construed to begin upon midnight of the day on which the bill is presented to the Governor, exclusive of Sundays and holidays.
I am of opinion that in acting under the constitutional pro- vision above quoted the Governor is to be allowed five full days, beginning at 12 o'clock midnight next following the time when the bill is presented, in which to exercise his right either to signify his approval of such bill by signing it or to return it with his objections, in writing, to the Senate or House of Rep- resentatives, and that in the computation of such periods of five days Sundays are to be excluded.
With reference to the question of holidays, I have not been able to find any judicial decisions on the point. It is a general rule, however, that anything may be legally done on a holiday which is not expressly prohibited, and that as to the legality of business done, holidays are different from Sundays. My con- clusion from the cases I have examined on this point is that in the case of Sunday it is to be inferred that no work shall be done, but that in the case of a holiday any work may be done which is not prohibited by law. There is no prohibition upon
JAMES M. SWIFT, ATTORNEY-GENERAL. 415
he Governor forbidding him to veto a bill on a holiday, and therefore assume that he may do so. As he may express his eto on a holiday, I am of the opinion that the better rule is 0 include the holiday as one of the five days allowed under the onstitutional provision.
Statute — Presumption of Lawful Passage — Adminis- trative Officers.
'he presumption arising from the proper custody and due authentication of an act of the Legislature that such act was passed in accordance with the require- ments of the Constitution, should be regarded as binding upon administrative officers, and such act should be regarded by them as having "the force of a law."
In behalf of the Civil Service Commission you request my To the
,, ii(-i i*i'' • ^ ^ (I \ Civil Service
>pmion as to whether St. 1911, c. 119, which is entitled An Commission. ^Lct relative to qualifications for examination by the civil J""e 7. ervice commission," has the "force of a law." This act, ifter having passed both branches of the General Court, was 'laid before the Governor for his revisal," and was by him •eturned to the House of Representatives, in which branch it )riginated, without his approval. Thereupon, as appears from :he journal, a quorum being present, more than two-thirds of :he members present but less than two-thirds of the entire nembership (unless the members paired in favor be counted) ligreed to pass it. Thereafter, it was sent to the other branch, md was approved by two-thirds of the members present. You jcek my advice as to whether upon these facts the act was le- gally passed; that is, whether the constitutional requirement 'or the passage of a bill over the Governor's veto, that two- thirds of the Senate or House of Representatives, in which it originated, should agree to pass it (Const., Part II., c. 1, § 1, ^■Tt. II.), was complied with.
The bill is now deposited with the Secretary of the Common- «-eaIth, who, under the Constitution (Part II., c. 2, § 4, Art. n.), has the custody of the records of the Commonwealth. It Jears the statements, signed, respectively, by the speaker of the
416 OPINIONS OF THE ATTOKNEY-GENERAL.
House and the president of the Senate, that it was passed to be enacted by those branches. It also bears the statement, signed by the speaker and by the clerk of the House, that the bill, "having been returned to the House of Representatives by His Excellency the Governor with his objections thereto in writing, is passed by the House of Representatives notwithstanding said objections, two-thirds of the members having voted in the affirmative;" and the statement, signed by the president and by the clerk of the Senate, that it "has been passed in concur- rence by the Senate, the objections of His Excellency the Gov- ernor to the contrary notwithstanding, two-thirds of the mem- bers present having approved the bill." Said bill is, therefore, in the proper custody and duly authenticated, and is presumed to have been enacted in accordance with constitutional require- ments. Whether such presumption can be overcome by refer- ence to the legislative journals is a matter upon which the courts are not in agreement. The Supreme Court of the United States holds that a bill wdiich is in proper custody and duly authenticated is conclusive evidence of its execution and valid enactment (Field v. Clark, 143 U. S. 649; Flint v. Stone- Tracy Co., 220 U. S. 107), and the same view is held by nu- merous State courts. Other State courts take a different view. Without expressing an opinion as to the view which is likely to be adopted by the Supreme Judicial Court of this Common- wealth when the case comes before it, I advise you that the presumption arising from proper custody and due authentica- tion should be regarded as binding upon administrative officers, and that said act should be regarded by your commission as having the "force of a law." I do not, of course, intend by so advising you to imply that if the journals were referred to it would appear that the bill was not legally enacted. Upon care- ful consideration I have concluded that I ought not to express an opinion in answer to that inquiry.
JAMES M. SWIFT, ATTORNEY-GENERAL. 417
'oRPORATiox — Charter — Purpose — Holding Compaxy — Acquisition of Stock of Domestic Street Railway, Gas and Electric Light Corporations.
nder the provisions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, § 7, that "three or more persons may associate themselves by a written agreement of association with the intention of forming a corporation under general laws for any lawful purpose which is not excluded by the provisions of section one except to buy and sell real estate," a corporation may be organized for the purpose "to buy and hold a majority of the shares of the capital stock of any street railway, gas and electric light companies organized under the laws of this commonwealth to do business within this commonwealth."
You request my opinion as to whether "a corporation may To the Com- missioner of e organized under chapter 437 of the Acts of the year 1903 Corporations.
)r the following purpose: 'to buy and hold a majority of the J^^^- lares of the capital stock of any street railway, gas and elec- *ic light companies organized under the laws of this Common- 'ealth to do business within this Commonwealth.' " It is well established in this Commonwealth that a corpora- ion may be organized under the general laws for the purpose f acquiring the stock of other corporations under the pro- isions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, "hich is as follows: —
Three or more persons may associate themselves by a ■\\Titten agreement f association wdth the intention of forming a corporation under general iws for any lawful purpose which is not excluded by the provisions of action one except to buy and sell real estate.
By section 1, as amended by St. 1910, c. 385, it is provided lat the purposes excluded from its provisions are: —
■purpose of carr^-ing on the business of a bank, savings bank, co-
■ ative bank, trust company, surety or indemnitj' company, or safe
I>osit company, or to corporations organized under general or special
ws of this commonwealth for the purpose of carr\'ing on within the
Duimonwealth the business of an insurance company, railroad, electric
iiilroad or street railway company, telegraph or telephone company.
IS or electric light, heat or power company, canal, aqueduct or water
Jmpany, cemetery or crematory company, or to any other corporatioas
hich now have or mav hereafter have the right to take or condcnm
418 OPINIONS OF THE ATTORNEY-GENERAL.
land within the commonwealth, or to exercise franchises in public ways granted by the commonwealth or by any county, city or town; but, except as hereinbefore provided, the provisions of this section shall not be con- strued to prohibit the organization of a corporation under the provisions of this act for the purpose of carrying on any lawful business outside of this commonwealth.
The question is then presented whether the ownership of stock for purposes of investment or control is a lawful purpose under the foregoing provisions of law\
In and of itself the ownership of stock is undoubtedly a law- ful purpose; and if expressly authorized, stock may be acquired and held for purposes of investment or bought and sold for pur- poses of profit. It is only when contrary to public policy as declared by express statute or by the principles of common law that such holding will become unlawful. Is such acquisition and ownership unlaw^ful w-hen the corporations to be controlled by means of the ownership of stock are not business corpora- tions but public-service corporations, such as gas and electric light or street railway companies? I am aware of no provi- sion of law wdiich expressly forbids such ownership in the case of public-service corporations. It has been suggested that the organization of a business corporation to acquire the stock of or to control public-service corporations is in effect the organization of public-service corporations under the business corporation law (St, 1903, c. 437), which constitutes a violation of so much of section 1 as provides that it shall not apply to the corporations enumerated, including street railway com- panies and electric light companies. In my opinion, however, this contention is disposed of by the language of the court in Pullman Car Co. v. Missouri Pacific Co., 115 U. S. 587, and in Peterson v. Chicago, Rock Island & Pacific Ry. Co., 20.: U. S. 364, 391, where the court said: —
It is true that the Pacific company practically owns the controlling stock in the Gulf compam', and that both companies constitute elements of the Rock Island system. But the holding of the majority interest in the stock does not mean the control of the active officers and agentf of the local company doing business in Texas. That fact gave the Pacifi<
JAMES M. SWIFT, ATTORNEY-GENERAL. 419
i iompany the power to control the road by the election of the directors of I the Gulf company, who could in turn elect officers or remove them from ;:he places already held; but this power does not make it the company
:ransacting the local business. This record discloses that the officers and agents of the Gulf company
control its management. The fact that the Pacific company owns the j jontrolHng amounts of the stock of the Gulf company, and has thus the I DOwer to change the management, does not give it present control of the
jorporate property and business.
I This conclusion, however, is based upon the assumption that :he holding corporation is organized in good faith to conduct
I ;he business of acquiring and owning the stock specified, and is lot a device or trick to avoid the consequences of illegal acts 3r to accomplish a purpose which would not be permitted to a 3ublic-service corporation.
The question whether the organization of a holding company :or the purpose of acquiring the stock of and controlling a pub- ic-service corporation is against public policy as tending to create a monopoly is a more difficult one. Numerous cases in Dther jurisdictions have decided contrary to such organization, [n this Commonwealth, however, it appears to be the estab- ished policy to restrict competition in the case of such public- iCrvice corporations as gas and electric light companies and itreet railway companies, subject to regulation by the State. 566 Weld V. Gas and Electric Light Commissioners, 197 Mass. 556, 558. Indeed, it may be said that in this Commonwealth ill public-service corporations are so supervised and controlled Dy the public authorities that there is no longer unrestricted competition, upon the theory that the rights of the public are Detter served by careful regulation than by unregulated com- oetition.
In this Commonw^ealth, also, there appears to be no public 3oHcy opposed to the creation of holding companies, so called, 3ven when they are for the purpose of holding the stock of public-service corporations. Thus, by St. 1909, c. 519, the Boston Railroad Holding Company was incorporated for the purpose "of acquiring and holding the whole or any part of
420
OPINIONS OF THE ATTORNEY-GENERAL.
the capital stock, bonds and other evidences of indebtedness of the Boston and Maine Railroad, and of voting upon all certifi- cates of stock so acquired and held . . ." For many years voluntary associations, resembling in many of their attributes corporations, have been organized and are maintained to acquire the stock of public-service corporations.
I am, therefore, of the opinion that the public policy of the Commonwealth does not appear to be opposed to the creation of holding companies created for the purpose of acquiring and holding the stock of street railways or gas and electric light companies, and that a provision authorizing such acquisition and holding, in the charter of a business corporation organized under the general laws, would not express an unlawful purpose as against public policy. That is, in my opinion a corporation may be organized under chapter 437 of the Acts of 1903 for the purposes set forth in your inquiry.
To the Board of Harbor and Land Com- missioners.
1911 June 24.
Hours of Labor — Dumping Inspectors — Civil Engineer.
Dumping inspectors employed by the Board of Harbor and Land Commissioners, whose duty it is "to see that all material which is to be dumped in tidewater is transported and dumped in its proper locality, none of it being deposited in any other place," are not "workmen, laborers or mechanics" within the meaning of St. 1911, c. 494, § 1, providing that "the service of all laborers, workmen and mechanics now or hereafter employed by the commonwealth ... is hereby restricted to eight hours in any one calendar day."
The further provision of such section that "engineers shall be regarded as mechanics within the meaning of this act" does not extend to or include persons who follow the profession of ci\Tl engineering.
You have requested my opinion with reference to the stand- ing of dumping inspectors under the provision of section 1 of chapter 494 of the Statutes of 1911, that "the service of all laborers, workmen and mechanics now or hereafter employed by the commonwealth ... is hereby restricted to eight hours in any one calendar day."
You state that the duties of dumping inspectors, who are civil service appointees, are, "To see that all material which is to be dumped in tidewater is transported and dumped in its
I
(
JAMES M. SWIFT, ATTORNEY-GENERAL. 421
roper locality, none of it being deposited in any other place, he inspectors are quartered on the 'towboats towing the »aded scows to sea. They practically live on the boats. They "e required to be on duty from the time the towboat starts ith the tow until the material is dumped. They cannot ave the towboat at that time, and have to remain until she 'turns to her wharf or anchorage. They are not required to 3 any service on the return trip. As soon as the scows are umped they may turn into their bunks and sleep until she ;turns to her dock or anchorage. They are fed on board the )wboat."
The duties of a dumping inspector, as defined by you, ap- ear to require special knowledge and powers of supervision, nd do not appear to involve any manual labor, which has snerally been regarded as an important element in the words laborers, workmen and mechanics." Meands v. Park, 95 Me. 27; Bloom v. Richards, 2 Oh. St., 387, 401; Savannah & C. R. 'o. v. Callahan, 49 Ga. 506, 511; Adams v. Goodrich, 55 Ga. 33, 234. I am, therefore, of the opinion that a dumping in- Dector is not d laborer, workman or mechanic within the leaning of the statute.
You further inquire whether the statute, by virtue of the revision that "engineers shall be regarded as mechanics within le meaning of this act," extends to and includes the chief en- ineer and several assistant engineers, draftsmen and helpers ho do such civil engineering work as the commission may re- uire. I am of opinion that the word "engineers," as used in t. 1911, c. 494, § 1, is not to be construed to include persons "ho follow the profession of civil engineering. Whether or not bose who assist them in the performance of such duties are to e regarded as laborers, workmen or mechanics must depend pen the nature of the services which they perform.
422 OPINIONS OF THE ATTORNEY-GENERAL.
Towns — Water Supply — Indebtedness — Vote — Two- thirds Majority.
A town which accepts by a majority vote an act authorizing it to supply itself and its inhabitants with water, in incurring debt therefor must comply with the pro\'isions of R. L., c. 27, § 8, requiring a two-thirds vote in order that it may incur debt for such purpose.
To the You request mv opinion as to "whether a town which ac-
Director of the t. . r-
ft^tlstics^ cepts, by a majority vote, an act authorizing it to supply jufyV. itself and inhabitants with water may incur debt therefor with-
out being required to comply with the provisions of section 8 of chapter 27 of the Revised Laws, which makes necessary a two-thirds vote in order that it may incur debt for such a pur- pose." I infer that your inquiry is made with especial ref- erence to the town of West Brookiield, which town, by chapter 373 of the acts of this year, is authorized to supply itself and its inhabitants with water. Section 5 of this act is as follows: —
Said town, for the purpose of paying the necessary expenses and lia- bilities incurred under the provisions of this act, may issue from time to time bonds, notes or scrip to an amount not exceeding thirty thousand dollars. Such bonds, notes or scrip shall bear on their face the words, Town of West Brookfield Water Loan, Act of 1911; shall be payable at the expiration of periods not exceeding thirty years from the dates of issue; shall bear interest, payable semi-annually, at a rate not exceeding four and one half per cent per annmn; and shall l^e signed by the treasurer of the town and countersigned by the water commissioners hereinafter provided for. Said town may sell such securities at public or private sale, upon such terms and conditions as it may deem proper : provided, that the securities shall not be sold for less than their par value.
Section 10 is as follows: —
This act shall take effect upon its acceptance by a majority vote of the legal voters of the town of West Brookfield present and voting thereon at a legal meeting called for the purpose within tlu-ee j^ears after its passage; but it shall become void unless the town of West Brookfield shall begin to distribute water to consumers in said town within tliree years after the date of the acceptance of this act as aforesaid. For the purpose of being submitted to the A'oters as aforesaid this act shall take effect upon its passage.
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 423
i As appears from the section last quoted, the general provi- ions of the act do not take effect until "its acceptance by a najority vote of the legal voters of the town of ^Yest Brook- leld present and voting thereon at a legal meeting called for he purpose within three years after its passage." If the act is !o accepted, the town is authorized to issue "bonds, notes or crip to an amount not exceeding thirty thousand dollars." Hich bonds, notes or scrip, however, if issued, must be issued n accordance with a vote of the town. There is nothing in he act from which it is to be implied that the vote by which he act is accepted is also a vote to issue bonds, notes or scrip, ^n voting to issue bonds, notes or scrip the town must, of course, follow the statutory requirements. So far as the special let prescribes the details of such issue it is to be followed; in )ther respects the general law controls. Cf. 1 Op. Atty.-Gen. 263. The special act does not state whether the vote to issue Donds, notes or scrip shall be a majority or a two-thirds vote. The general law (R. L., c. 27, § 8) requires, in the case of a town, "a vote of two thirds of the voters present and voting at a town meeting," and, in the case of a city, "of two thirds Df all the members of each branch of the city council." It follows that "a vote of two thirds of the voters present and voting" is required to authorize the issue of bonds, notes or scrip under authority of the act here in question. The correct- ness of this view appears from the fact that it is expressly provided by general law (R. L., c. 27, § 21) that where a city accepts by a vote of two thirds of the legal voters an act to supply it with water, " a vote of the majority or the members of each branch of the city council" is sufficient to authorize the issue of bonds. By this statute it is recognized that in cases not within this exception a vote "of two thirds of all the mem- bers of each branch of the city council" or "of two thirds of the voters present and voting at a town meeting," as the case may be, is necessary. Cf. St. 1876, c. 19.
424 OPINIONS OF THE ATTORNEY-GENERAL.
Attorney-General — Duties — Limit of Time — Constitu- tional Law — Referendum — Matter of Local Self- government.
The senate has no authority to fix a limit of time within which the Attorney-General is to perform his duties or any of them.
A provision in a proposed bill that "this act shall be submitted to the qualified voters of the Commonwealth at the- next State election, in answer to the question, ' Shall a law enacted by the General Court of the year 1911 relative to the development of the Port of Boston and authorizing the expenditure of $9,000,000 for that purpose, be accepted' . . ." does not fall within the excep- tion permitting a referendum in matters of local self-government, and would, therefore, be unconstitutional.
To the I have the honor to transmit herewith mv opinion in re-
teenate. _ ^ '■
juf ^13 sponse to the following order to the Honorable Senate, dated
^^^' July 12, 1911: —
Ordered, That the Attorney-General be requested to furnish to the Senate forthwith his opinion on the following question: Wliether the following pending amendment of the Senate BiU relative to the develop- ment of the port of Boston (printed as Senate, No. 570), referring the measure by referendum to the voters of the Commonwealth, is constitu- tional, to wit: striking out section 19 and inserting in place thereof the follo\snng new section: — "Section 19. This act shall be submitted to the quahfied voters of the commonwealtli at the next state election in answer to the question ' Shall a law enacted by the general court of the year nineteen hundred and eleven relative to the development of the port of Boston and authorizing the expenditure of nine million doUars for that purpose be accepted?' If a majority
VES.
of the voters voting thereon vote in the affirmative, this act shall there- upon take effect; otherwise it shall be null and void."
The form of the order compels me to respectfully remind the Honorable Senate that it has no authority to fix the limit of time within which the Attorney-General shall perform his duties or any of them. Therefore, so much of the order as requires my opinion forthwith I respectfully disregard. INIy desire, how- ever, to assist the Honorable Senate in the performance of its duties, as well as the deference I owe that honorable body, has caused me to give attention to the question submitted as early as I could consistently with the other duties of my office.
JAMES M. SWIFT, ATTORNEY-GENERAL. 425
In my opinion the proposed referendum as set forth in said order is unconstitutional within the principles now well estab- lished in this Commonwealth, as stated in the Opinion of the Justices, 160 Mass. 586, and in the decisions and discussions in the following cases: Brodbine v. Revere, 182 Mass. 598; Graham v. Roberts, 200 Mass. 152; and Wyeth v. Cambridge Board of Health, 200 Mass. 474; and in the opinion of my learned predecessor, Attorney-General Malone, to the com- mittee on the judiciary, under date of April 3, 1907 (ante, p. 88). While the proposed legislation in some respects may be said to be a statute of local concern, it appears that the expenses are to be borne by the State at large, and the referendum is directed to the voters of the State at large. Said referendum, therefore, does not come within the exception permitting a referendum in matters of local self-government, within the meaning of said decisions.
Attorney-General — Opinion — Statement of Facts — Monopolies — Public Policy — Legislature.
The Attorney-General is not required to express an opinion upon any case or to take any other action relative thereto upon the request of a State officer, board or commission unless sufficient facts are stated to enable him to come to a definite conclusion in the premises.
The determination of the attitude of the Commonwealth toward monopolies is primarily a function of the Legislature, and does not fall within the scope of the duties of the Attorney-General.
To vour letter of July 3, 1911, I have been giving as care- xothe
"• '^ 1 (• • Governor.
ful and earnest consideration as the contents thereof permit, mi
In it you make the following statements : —
Complamts are current that the prosperity of the shoe industry in ' this Commonwealth has been seriously impaired and is further threatened by the existence of a monopoly in shoe machinery. . . .
It is represented that practically all the shoe machinery in use in Massa- chusetts is owned by a single corporation which, though organized under the laws of another State, has its principal office here. It is practically impossible for any shoe manufacturer to buy his machinery or any part of it. He can secure it only upon lease and upon terms arbitrarily fixed
July u.
426 OPINIONS OF THE ATTORNEY-GENERAL.
by this corporation, which is said to be without competition in the manu- facture of shoe machinery. The company has since the date of its organi- zation, by various methods, acquired or destroyed the business of every competitor. It accordingly now has a complete and absolute monopoly of the entire field. . . .
Complaints are rife that the corporation has used its power to the disadvantage of our local industry. It has enforced oppressive terms and has discriminated against locaUties, and m a measure has discriminated against m.anuf acturers here in favor of those located in other States. There is a well-founded current belief that the arbitrary restrictions imposed by this monopoly are responsible for the depression of the industry of which our manufacturers are beginning seriously to complain.
I call your attention to the fact that within the year last past, when its monopoly was threatened by competition, this corporation acquired the machines, the manufacturing plants and the patents of a prominent, independent shoe machinery manufacturer. If this transaction could have been prevented it would have afforded distinct relief and protection against the present situation of absolute monopoly and autocratic control. It is of importance now to determine whether the current belief as to its invalidity is justified, and if so, what remedy may be applied.
You then proceed as follows : —
Assuming the facts to be as outhned above, I respectfully request your opinion upon the following points : —
1. Is the existing law sufficient to enable ypu, as the chief law officer of the Commonwealth, successfully to accomplish the destruction of this monopoly, or the reUef in any measure of the shoe industry of the Commonwealth from the power of this corporation absolutely to control and dominate our shoe manufacturers ?
2. Was the acquisition by this corporation of the shoe machinery, the manufacturing plants and the letters patent of an independent manu- facturer in September, 1910, in \'iolation of any existing law of the Com- monwealth ?
3. If, in your opinion, the existing law is insufficient to give relief, what other or further legislation is in your opinion necessary or expedient to curb or break the power of this alleged monopoly ?
From a legal standpoint, and as a basis for an opinion that will be of any value whatever, I am unable to find in your letter anything that permits or enables me to come to any conclusion. It contains no statement of facts or evidence such as is neces- sary as a basis for legal consideration or action.
JAMES M. SWIFT, ATTORNEY-GENERAL. 427
However, the deference that I owe to the office of the Chief Executive of this Commonwealth has led me to consider said letter in a broad and general way as a request from you for (1) a statement as to existing law, and (2) a statement as to the necessity or expediency of further legislation concerning the subject of manufacturing monopoly in this Commonwealth. So far as I am able I advise you, therefore, along the lines of these inquiries.
As io Existing Law. — There are now upon the books three statutes which bear upon the subject of monopolies.^ These are R. L., c. 56, § 1; St. 1907, c. 469; and St. 1908, c. 454. There are also important common law principles, a considera- tion of which would be essential to any complete statement of the law of monopolies. Unless, however, it appears that no reUef can be obtained under the statutes cited, it is unnecessary to consider whether relief could be obtained apart from these statutes.
R. L., c. 56, § 1, prohibits making "it a condition of the sale of goods, wares or merchandise that the purchaser shall not sell or deal in the goods, wares or merchandise of any other person, firm, corporation or association," and imposes a penalty for the violation of the provisions of the section. There is no sug- gestion in your letter that these provisions have been violated by the corporation to which you refer.
St. 1907, c. 469, prohibits inserting in or making "it a con- dition or provision of any sale or lease of any tool, implement, appliance or machinery that the purchaser or lessee thereof shall not buy, lease or use machinery, tools, implements or appliances or material or merchandise of any person, firm, corporation or association other than such vendor, or lessor," and imposes a penalty for the violation of the provisions of the act.
If Your Excellency has any evidence or sources from which such evidence might be obtained of the violation of either of the foregoing statutes, I have to advise you that the same should be submitted to the district attorney for the district in
1 The efifect of St. 1911, c. 503, b limited to procedure.
428 OPINIONS OF THE ATTORNEY-GENERAL.
which such violation was committed, since he has charge of the administration of the criminal law in that regard.
St. 1908, c. 454, is entitled "An Act relative to monopoHes and discriminations in the sale of articles or commodities in common use." Its first and second sections are as follows: —
Section 1. Every contract, agreement, aiTangement or comlDina- tion in violation of the common law in that thereby a monopoly in the manufacture, production or sale in this commonwealth of any article or commodity in common use is or may be created, established or main- tained, or in that thereby competition in this state in the supply or price of any such article or commodity is or may be restrained or prevented, Of in that thereby, for the purpose of creating, estabhshing or maintaining a monopoly within this state of the manufacture, production or sale of any such article or commodity, the free pursuit in this state of any lawful business, trade or occupation is or may be restrained or prevented, is hereby declared to be against public pohcy, illegal and void.
Section 2. The attorney-general, or, by his direction, a district . attorney, may bring an action in the name of the commonwealth against any person, trusteOj director, manager, or other officer or agent of a cor- poration, or against a corporation, to restrain the doing in this common- wealth of any act herein forbidden or declared to be illegal, or any act in, toward or for the making or consummation of any contract, agreement, arrangement or combination herein prohibited, wherever the same may have been made. The superior court shall haye jurisdiction to restrain and enjoin any act herein forbidden or declared to be illegal.
Obviously, this statute is of broad application. It is im- possible for me, however, to advise you either as to the prob- able outcome of a proceeding brought thereunder against the corporation to which you refer, or as to the legality of the contract in question, without having a complete knowledge of the facts involved. I therefore respectfully suggest that you submit to me the facts and evidence upon which your con- clusions are based, that I may institute proceedings under this statute if the facts appear to justify such action. It is im- possible for me to predicate any opinion or official action upon manifest hearsay or assumptions.
As to the Necessity or Expediency of Further Legislation. — For the purpose of advising you as to the necessity or expedi-
i
JAMES M. SWIFT, ATTORNEY-GENERAL. 429
ency of further legislation I have the same need of detailed in- formation as to the facts as for the purpose of advising you as to the apphcation of existing law. Furthermore, the deter- mination of the Commonwealth's attitude toward monopoly is primarily a legislative function, and does not fall within the scope of the duties of the Attorney-General.
It is as much my earnest desire as it is that of Your Excel- lency that the laws of the Commonwealth shall be strictly en- forced, and that such corrections or amendments shall be pro- vided as may appear necessary in any proper case. Manifestly, however, action or legislation based upon insuflficient informa- tion and evidence would result in disaster and confusion, a result which Your Excellency, I assume, as well as I myself, would greatly deplore.
Charles River Basin — Metropolitan Park Commission — Lechmere Canal — Authority to widen and deepen.
The Metropolitan Park Commission, under the p^o^^sions of St. 1903, c. 465, which in section 4 required the Charles River Basin Commission to "dredge navigable channels in the basin" and to "dredge Lechmere canal to such depths as will afford to and at the wharves thereon not less than seventeen feet of water up to and including Sawj'er's lumber wharf, and not less than thirteen feet of water from said wharf up to the head of the canal at Bent street," and of St. 1909, 0. 524, § 1, by which such commission succeeded to "all the powers, rights, duties and liabilities" of the Charles River Basin Commission, has authority to widen a part of Lechmere Canal, to reinforce the adjoining land by piling and to dredge the part of the canal so widened to the depth pre- scribed in said chapter 465.
You have requested my opinion in behalf of the Metropolitan to the Metro- Park Commission as to whether it has authority under St. Commission. 1903, c. 465, and St. 1909, c. 52-1, to widen a part of Lechmere August i. Canal, to reinforce the adjoining land by piling and to dredge the part of the canal thus widened to the depth prescribed in said chapter 465.
By St. 1909, c. 524, § 1, the Metropolitan Park Commission succeeds to "all the powers, rights, duties and liabilities" of the Charles River Basin Commission. By St. 1903, c. 465, § 4,
430 OPINIONS OF THE ATTORNEY-GENERAL.
the Charles River Basin Commission was required to "dredge navigable channels in the basin," and to "dredge Lechmere canal to such depths as will afford to and at the wharves thereon not less than seventeen feet of water up to and includ- ing Sawyer's lumber wharf, and not less than thirteen feet of water from said wharf up to the head of the canal at Bent street." The section further provided as follows: —
The commission shall do all such dredging and all strengthening of the walls of the canals and of the basin where dredging is done by the driving of prime oak piles two feet on centres along the front of said wharves or walls, and all removing and relocating of pipes and conduits made necessary by such dredging, so that vessels requiring a depth of water not exceeding the respective depths above prescribed can lie along- side of, and in contact with, the wharves; and this work shall be done in such manner as to cause the least possible inconvenience to abutters, and shall be finished on or before the completion of the dam; and after the walls or wharves have been so strengthened, all repairs on or rebuilding of the walls and wharves shall be done by the abutters.
The commission shall do such dredging in the basin outside of the channels aforesaid as may be necessary for the removal of sewage, sludge or any offensive deposit; shall do such other dredging as it shall deem proper, and shall take all proper measures for the destruction of malarial mosquitoes in the basin and its vicinity.
The part of the canal in question is northwest of Commercial Avenue and runs from Commercial Avenue to the point where the canal turns toward the south. The canal is here 100 feet wide and is bounded on the southwest by land of the heirs of John T. Scully. The southwest side of this part of the canal is an "open shore." It is proposed that the heirs of John T. Scully allow a part of their land to become a part of the canal, and that the commission reinforce the adjoining land by piling and dredge the canal to a width of 115 feet. Your inquiry is as to whether this proposed scheme may legally be carried out.
So far as the widening of the canal is concerned I am of opinion that there can be no legal objection to permitting the abutting owners to allow their land to become a part of the canal to the extent proposed. So far as the dredging of the
JAMES M. SWIFT, ATTORNEY-GENERAL. 431
I canal is concerned the only express requirement here material ' is that it be dredged "to such depths as will afford to and at the wharves thereon not less than seventeen feet of water. ..." If as a matter of fact the proposed dredging is rea- sonably incidental to the fulfilling of this requirement, such dredging is authorized. So far as the driving of piles is con- cerned, the statute makes certain specific requirements. Even if these express requirements do not apply in front of open shores, the commission is authorized to "take such measures as are necessary to protect the channel of the canals." I ad- vise you, therefore, as my predecessor advised the Charles River Basin Commission in reply to a similar inquiry, that "if . . . in your opinion, as a matter of fact, the driving of the piles in question is a reasonable method of protecting a channel dredged under the statutory requirement that Lechmere canal be dredged, you have . . . authority to do such driving of piles."
Taxation — Bonds of Domestic Electric Light Corpora- tion SECURED BY MORTGAGE ON ReAL EsTATE AND PER- SONAL Property — Exemption.
i The bonds of a domestic electric light corporation secured by a mortgage of real estate within the Commonwealth and of personal property are not exempt from taxation under the pro\-isions of St. 1909, c. 490, part I., § 4, cl. 2, that personal estate, for the purpose of taxation, shall not include "any loan on mortgage of real estate, taxable as real estate, except the excess of such loan above the assessed value of the mortgaged real estate."
You have requested mv opinion as to whether the mortgage to the Tax
^ "• ^ Commissioner.
bonds of the Boston Electric Light Company, a domestic cor- ^^jon ^^ poration, are exempt from taxation. The bonds in question are secured by a mortgage of real estate within the Common- wealth and of personal property. The amount of the issue of bonds is less than the assessed valuation of the mortgaged real estate.
The bonds are taxable under St. 1909, c. 490, part L, § 4, cl. 2, which provides that personal estate for the purpose of tax-
432 OPINIONS OF THE ATTORNEY-GENERAL.
ation shall include "money at interest, and other debts due the person to be taxed more than he is indebted or pays in- terest for; but not including in such debts due him or indebted- ness from him any loan on mortgage of real estate, taxable as real estate, except the excess of such loan above the assessed value of the mortgaged real estate," unless such bonds con- stitute a "loan on mortgage of real estate, taxable as real estate," within the meaning of the statute. In Brooks v. West Sijringfield, 193 Mass. 190, it was held that bonds secured by mortgage of real estate in this Commonwealth, real estate in other States and personal property were not exempt from tax- ation under this statute, then R. L., c. 12, § 4. The prin- ciples therein laid down are applicable to bonds secured by mortgage of real estate in this Commonwealth and personal property. They are, in my opinion, applicable though the amount of the issue of bonds is less than the assessed valuation of the mortgaged real estate, as in the case of the bonds in question. I advise you, therefore, that the mortgage bonds of the Boston Electric Light Company are taxable.
Extradition — Governor — Duty of Executive — Discretion.
Where the papers accompanjang the demand of the Executive of another State for the arrest and extradition of an alleged fugitive from the justice of that State appear to be legal and in proper form, and no question is raised as to the identity of the person demanded, or testimony offered to contradict the sworn evidence in the affidavits accompanying such demand that on or about the date of the alleged crime such person was in the demanding State and thereafter left it and has been found within the Commonwealth, it is the duty of the Governor to honor such demand, and he has no legal discretion to refuse to honor it, even if upon full hearing he should be of opinion that under all the circumstances the interests of justice would be served by such refusal.
Governor. lu the matter of the demand of the Executive of Con-
September 11. uccticut for the extraditiou of Nathan Berman and Louis
Brooks, Your Excellency has requested my opinion as to
"whether, in view of the fact that the requisition papers have
JAMES M. SWIFT, ATTORNEY-GENERAL. 433
Deen found by me to be in proper form, and of other admitted 'acts," Your Excellency would have "any legal discretion to leny the requisition of the Governor of Connecticut even if jpon full hearing" Your Excellency "should be of opinion that mder all the circumstances the interests of justice would be served by denying the requisition."
In reply I have the honor to advise Your Excellency that the luties of the Governor of this Commonwealth with reference to ;he demand upon him from the Executive of another State for ;he extradition of an alleged fugitive from justice, who has been charged with crime in the demanding State and has been found vithin this Commonwealth, are prescribed in clear and un- 'quivocal terms in the Constitution of the United States and in :he Revised Statutes of the United States.
The Constitution of the United States provides, in Article y, Section II, as follows: —
A person charged in any state with treason, felony, or other crime, vho shall flee from justice, and be found in another state, shall, on demand )f the executive authority of the State from which he fled, be delivered iip to be removed to the state having jurisdiction of the crime.
In discussing this provision of the Constitution, the Supreme Court of the United States, in Kentucky v. Dennison, 24 How. [U. S.) 66, said: —
Looking, therefore, to the words of the Constitution — to tlic obvious Dolicy and necessity of this provision to preserve harmony between States, ind order and law within their respective borders, and to its early adoption 3y the colonies, and then by the Confederated States, whose mutual nterest it was to give each other aid and support whenever it was needed — the conclusion is irresistible, that this compact engrafted in the Con- I ititution included, and was intended to include, cveiy offence made punish- ible by the law of the State in which it was committed, and that it gives the •ight to the Executive authority of the State to demand the fugitive from ;he Executive authority of the State in which he is found; that the right ;iven to "demand" impUes that it is an absolute right; and it follows ^hat there must be a correlative obhgation to deUver, without any rcfer- fflce to the character of the crime charged, or to the poUcy or laws of 'he State to which the fugitive has fled.
434 OPINIONS OF THE ATTORNEY-GENERAL.
The duty of providing by law the means of carrying this provision of the Constitution into execution, from the nature of the duty and the object in view, devolved upon Congress, and Congress, therefore, passed the act of 1793, February 12, which, as codified in the Revised Laws of the United States, section 5278, provides as follows: —
Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from which the person so charged has fled, it shaU be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority ap- pointed to receive the fugitive, and to cause the fugitive to be deUvered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing and trans- mitting such fugitive to the State or Territory making such demand shall be paid by such State or Territory.
In discussing the provision of the act of 1793, in the same case (Kentucky v. Dennison), the Supreme Court of the United States said : —
The demand being thus made, the act of Congress declares that "it shall be the duty of the Executive authority of the State" to cause the fugitive to be arrested and secured, and deUvered to the agent of the demanding State. The words "it shall be the duty," in ordinary legis- lation, imply the assertion of the power to command and to coerce obedi- ence. But looking to the subject-matter of this law, and the relations which the United States and the several States bear to each other, the court is of opinion the words "it shall be the duty" were not used as mandatoiy and compulsory, but as declaratory of the moral duty which this compact created when Congress had provided the mode of canying it into execution. The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal
JAMES M. SWIFT, ATTORNEY-GENERAL. 435
on the part of the Executive of the State; nor is there any clause or pro- vision in the Constitution which arms the government of the United States \\ath this power.
And, further, the court said : —
It does not purport to give authority to the State Executive to arrest and deliver the fugitive, but requires it to be done, and tlie language of the law implies an absolute obligation which the State authority is boimd to perfoiin. And when it speaks of the duty of the Governor, it e\'idently points to the duty imposed by the Constitution in the clause we are now considering. The performance of this duty, however, is left to depend on the fidelity of the State Executive to the compact entered into with the other States when it adopted the Constitution of the United States, and became a member of the Union. It was so left bj^ the Con- stitution, and necessarily so left by the act of 1793."
See also McNichols v. Pease, 207 U. S. 100, and cases there sited.
The provisions of the Constitution of the United States and oi the Revised Statutes of the United States above quoted are the supreme law of the land with reference to extradition, and no statute of this Commonwealth can impose restrictions or limitations upon the operation of this law of the United States. No statute of this Commonwealth, therefore, can alter the duty imposed upon the Executive of this Commonwealth by the Con- stitution and laws of the United States. For this reason the provision of the Revised Laws of Massachusetts, chapter 217, section 12, that the Governor may consider the question of the 3xpediency of complying wdth an application for extradition, is I i to be construed as giving Your Excellency the right to consider questions of expediency or discretion only upon applications by I this Commonw^ealth upon other States, or upon demands for persons held here in custody to answer for crimes against this Commonwealth or the United States, or by force of any civil :)rocess.
This ruling is in harmony with the settled practice in this Commonwealth and with the opinion of one of my predecessors n this office, given on Aug. 21, 1902, in which the Governor of
436 OPINIONS OF THE ATTORNEY-GENERAL.
this Commonwealth was advised as follows, in response to a request for an opinion not only as to the law of the case but also as to the expediency of the Governor's favorable action upon the demand of the Executive of North Carolina for the extradition of a negro who contended that mob violence would prevent him from having a fair trial in a southern State : —
I am of opinion, however, that my investigation must be confined to the legal aspects of the case, and that Your Excellency's action must be controlled by the requirements of the Constitution and statutes of the United States, and that the Massachusetts statutes cannot be operative except in so far as is consistent with the federal law. Upon this view, the right of Your Excellency to consider questions of expediency or discre- tion exists only upon applications for requisition going from this Common- wealth, or upon demands for persons held here in custody to answer for crimes against this Commonwealth, or the United States, or by force of any civil process. (2 Op. Atty.-Gen. 368.)
The case now^ before Your Excellency is not a case which falls within the class in which the law may be said to authorize the exercise of discretion, and the scope of proper inquiry by Your Excellency as a guide to action is, therefore, narrowly limited by law. Certain questions of law and of fact are, however, open to Your Excellency's inquiry. The duty to surrender to the demanding State the alleged fugitives does not arise unless the demand is in proper form. Your Excellency, therefore, is justified in inquiring into the technical sufficiency of the ap- plication for extradition and the accompanying documents.
In accordance with the long-established practice, upon receipt of the extradition papers by Your Excellency from the Execu- tive of Connecticut, they w^ere referred to the Attorney-General j for an opinion as to whether, as matter of law, the papers were in proper form and the requisition might lawfully be complied with. I
In accordance with Your Excellency's request, I examined the papers in these cases with reference to their technical suffi- ciency. The law requires that the person demanded shall be charged with the commission of an offence against the laws of the demanding State, in these cases Connecticut. It is im-
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 4'M
I material under the law whether the offence charged is a crime 'under the laws of this Commonwealth. If a crime is substan- tially charged in the papers, that is sufficient, and it is im- naterial that the complaint or indictment is inartificially irawn or is imperfect as a matter of pleading, if it substan- :ially charges a crime. Pierce v. Creecy, 210 U. S. 387, and ases cited. In my opinion the papers in these cases satisfied ;hat requirement of the law.
Your Excellency is also justified in satisfying yourself that :he persons demanded are fugitives from justice. The term 'fugitive from justice" is frequently misunderstood, for the j 'eason that it is popularly supposed that to be a fugitive from justice one must have fled to escape detection or avoid prose- ■ution. That, however, is not the legal meaning of the term as iefined by the United States Supreme Court. In Roberts v. Reilly, 116 U. S. 80, at page 97, the court said: —
To be a fugitive from justice, in the sense of the act of Congress regu- ating the subject under consideration, it is not necessary that the party charged should have left the State in which the crime is alleged to have been 3ommitted, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a State committed that which by its laws constitutes a crime, when lie is sought :o be subjected to its criminal process to answer for his offence he has
eft its jurisdiction and is found within the territory of another.
i
The motive with which the demanded person left the de- manding State is, therefore, not material to the decision of the questions presented for Your Excellency's determination in this Commonwealth. It appeared by sworn evidence in the papers accompanying the demand of the Governor of Connecticut that the persons demanded were in Connecticut at the time when he crime is alleged to have been committed, and that they sub- >equently left the State and have been found within this C\nn- tnonwealth. Nothing appeared to contradict that statement, ind Your Excellency is, in my opinion, justified in finding that -equirement of the law satisfied. See Appleyard v. Masfta- Jhmetts, 203 U. S. 222.
I
438 OPINIONS OF THE ATTORNEY-GENERAL.
Your Excellency may also satisfy yourself that the persons demanded are in fact the persons now held in this Common- wealth under the fugitive warrant. No question was raised as to the matter of identity; and it appeared by sworn evidence in the papers that the persons now held under the fugitive warrant in this Commonwealth are the persons demanded by the Executive of Connecticut.
The affidavits in the papers appear to have been taken before magistrates under the law of Connecticut. No question as to the good faith of the Executive of Connecticut was raised. The papers were certified as authentic by the Executive of Connecti- cut; that certification of the papers by that Executive in itself sufficiently authenticates the complaints or affidavits as being sworn to before a magistrate, and such certification, under the ruling of the United States Supreme Court, precludes Your Excellency from going behind such certificate to the truth of the facts so stated. In the case of Kentucky v. Dennison, cited above, the court said: —
It will be observed that the judicial acts which are necessary to au- thorize the demand are plainly specified in the act of Congress; and the certificate of the Executive authority is made conclusive as to their verity when presented to the Executive of the State \vhere the fugitive is found. He has no right to look behind them, or to question them, or to look into the character of the crime specified in this judicial proceeding. The duty which he is to perform is, as we have already said, merely minis- terial — that is, to cause the party to be arrested and delivered to the agent or authority of the State where the crime was committed.
The Constitution of the United States, in Article IV., Section I, provides that —
Full faith and credit shall be given in each state to the pubhc acts, records, and judicial proceedings of every other state. And the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.
I have already quoted above the law enacted by Congress with respect to requisitions; and since the proof of these rec-
JAMES M. SWIFT, ATTORNEY-GENERAL. 439
)rds and judicial proceedings of the State of Connecticut com- )lies with the requirements of the statutes, that proof is to )e accepted by Your Excellency as conclusive.
After careful consideration of all these matters, I have re- )orted to Your Excellency that the demand of the Executive of ^Connecticut was proper in form, and that the requisition might awfully be complied with.
Since, therefore, the demand of the Executive of Connecticut ippears to be in proper form, and since the specified facts con- •erning which Your Excellency may law^fully inquire have been stablished in the manner prescribed by law, I must advise i'our Excellency that, under the provisions of the Constitution md laws of the United States and of this Commonwealth, YouT Excellency has no legal discretion to deny the requisition 3f the Governor of Connecticut.
In reply to the further inquiry of Your Excellency as to whether the petitioners have been afforded by me opportunity for a full hearing at which they could present all proper objec- tions to the granting of the application, I have the honor to reply that counsel for the alleged fugitives was, at his request, afforded an opportunity for a full hearing upon all points which I am authorized by law to investigate and consider in cases of demands by other States upon this Commonwealth, and that representatives of labor organizations interested were present, and that opportunity was given to every person present to speak upon the points in issue, or to ask for information. The questions of the innocence or guilt of the persons involved, or of the justice or injustice of the prosecution of the charge were not inquired into, since those questions may be tried only in Connecticut, the State having jurisdiction of the ofl'ence charged, and may not lawfully be inquired into by me.
Counsel for both the complainant and the alleged fugitives were heard at length. Counsel for the alleged fugitives dis- cussed thoroughly and forcibly the matter of the technical sufficiency of the papers, and attacked the validity of the papers on various points. The arguments were taken down by a stenographer, and all objections were carefully noted.
440 OPINIONS OF THE ATTORNEY-GENERAL.
After careful consideration of all contentions I reached the conclusion which I have already stated herein, and notified the ofiices of both counsel for the complainant and for the alleged fugitives of my decision.
In reply to the further inquiry whether, if Your Excellency should honor the requisition of the Governor of Connecticut, "the petitioners will still have ample opportunity of applying to the courts of this Commonwealth for such protection as they may be legally entitled to under the laws of Massachusetts," I advise you that Revised Laws of Massachusetts, chapter 217, section 14, provides that —
A person who is arrested upon such a warrant shaU not be delivered to such agent of a state or territory until he has been notified of the de- mand for his surrender and has had an opportunity to apply for a WTit of habeas corpus, if he claims such right of the officer who makes the arrest.
If, therefore. Your Excellency honors the requisition by issu- ing the executive warrant, the alleged fugitives, under this provision of the statutes, are entitled to be given the oppor- tunity to petition for a writ of habeas corpus, if they claim the right to so apply. In such a proceeding the lawfulness of the extradition would be passed upon by the court, but the warrant of Your Excellency would, according to the language of the Supreme Court in Davis' Case, 122 Mass. 324, be held to be "prima facie evidence, at least, that all necessary legal pre- requisites have been complied with, and, if the previous pro- ceedings appear to be regular, is conclusive evidence of the right to remove him (the prisoner) to the state from which he fled."
i
JAMES M. SWIFT, ATTORNEY-GENERAL. 441
Governor — Appropriations for State Commissions, De- partments OR Institutions — Employment of Persons TO investigate Statements and Estimates — Contract — Compensation.
Jnder the provisions of St. 1911, c. 82, that "the governor is hereby authorized to employ such persons as he may deem proper to make such investigation of any of the commissions, departments or institutions of the commonwealth as he believes is necessary to enable him to carry out the provisions of chapter two hundred and twenty of the acts of the year nineteen hundred and ten," and that for such purpose he may "expend such sums out of the amount authorized by chapter five hundred and forty-nine of the acts of the year nineteen hundred and eight as may be approved by the governor and council," the governor, acting independently of the council, has no power to determine, by contract or otherwise, the rate of compensation to be paid to the persons employed by him to make the required investigations.
5ince the purpose of St. 1910, c. 220, providing in substance that statements or estimates for appropriations for State commissions, departments or institu- tions shall annually be submitted to the Governor and Council, and trans- mitted by the Governor to the Legislature, with such recommendations as he may deem necessary, the Governor and Council may not legally allow persons employed under authority of St. 1911, c. 82, above cited, compensation for investigations or for reports thereon made since the prorogation of the General Court for the year in which they were employed, nor compensation for time spent in appearing before the joint committee on ways and means of the General Court to explain their reports or to be questioned in regard to them, or for time spent in explaining their charges for services to the council or to any committee thereof.
On behalf of the committee on finance, accounts and war- To the
Executive
rants of the Council you request my opinion upon the following secretary.
lUeStions:— September.'?.
1. Has the Governor, acting independently of the Council, the power ;o determine conclusively, by contract or otherwise, the rate of com- pensation to be paid to the persons employed by him under the provi- dons of chapter 82 of the Acts of the year 1911?
2. Can the Governor and Council legally allow such persons compen- iation, to be paid from the treasury of the Commonwealth, 1st, for time spent in appearing before the joint committee on ways and means of :he General Court to explain their reports or be questioned in regard :o them; 2d, for time spent in explaining their charges for services to .he Council or its committees; 3d, for any services performed since the prorogation of the General Court of the present year; and if so, for \\liat services ?
442 OPINIONS OF THE ATTORNEY-GENERAL.
St. 1911, c. 82, is as follows: —
The governor is hereby authorized to employ such persons as he may deem proper to make such investigation of any of the commissions, de- partments or institutions of the commonwealth as he beUeves is necessary to enable him to carry out the provisions of chapter two hundred and twenty of the acts of the year nineteen hundred and ten. Such persons shall report in writing to the governor, and copies of every report shall, at the same time, be sent by said persons to the governor's coimcil and to the joint committee on waj^s and means of the general court. For this purpose the governor may expend such sums out of the amount authorized by chapter five hundred and forty-nine of the acts of the year nineteen hundred and eight as may be approved by the governor and council.
In my opinion the first question must be answered in the negative. The act provides specifically that "the governor may expend such sums ... as may be approved by the gov- ernor and council." While the person may be designated and employed by the Governor, the compensation is to be fixed by the Governor and Council.
The second question concerns the basis for the allowance of compensation. It requires consideration of the duties and powers provided by law, as set forth in St. 1910, c. 220, and St. 1911, c. 82.
The effect of St. 1910, c. 220, has been judicially determined by the Supreme Judicial Court in an Opinion of the Justices to the Senate, dated April 7, 1911, which in part is as follows: —
The St. of 1910, c. 220, has made but a veiy small change in the law of the Commonwealth. . . .
The only new provision in this particular is the requirement that it (estimates and statements) shall be submitted " to the governor and council for examination, and the governor shall transmit the same to the General Court, with such recommendations, if any, as he may deem proper." . . . Under this statute, after the document has been printed, it is to be foimally submitted to the governor and council for examination, as well as distributed to the members of the General Com-t, while under the foraier statute the governor was left to obtain a copy as he might. Under the present statute he is to transmit it to the General Court, so that they may know that he has had an opportunity to examine it, and
JAMES M. SWIFT, ATTORNEY-GENERAL. 443
le may make recommendations or not, as he chooses. . . . The only 'naterial effect of this statute is to give a legislative invitation to the ; ;overnor to examine the documents prepared bj^ the auditor and to make ecommendations upon the subjects contained in them if he chooses, and ilso to give him an implied assurance that his recommendations as to the .mount of the appropriations will receive respectful consideration.
The effect of both statutes was passed upon in an opinion of he Attorney-General to the Treasurer and Receiver General, lated May 11, 1911, which in part is as follows: —
The duty and power of the Governor in the premises, therefore, being .onfined to the transmission of the statements of estimates for appro- ] )riations submitted to the Auditor bj'' the var'ous State officers, boards ,nd commissions and transmitted by the Auditor to the Governor, to be iccompanied by a recommendation or not. as he sees fit, it follows that lis power to investigate any officer, department or institution must be )redicated upon the existence of a statement of proposed expenditures md of other matters required by St. 1910, c. 220, which may be trans- nitted by him to the Legislature. The emplojonent of agents, investiga- ors and "experts" is only such as the Governor believes is necessary ;o enable him to carry out the provisions of said St. 1910, c. 220. If there ire no such estimates for the current year before him for transmission, md upon which before transmission he seeks further information, it 'ollows that there is no authority or occasion for any investigation under 5aid St. 1910, c. 220, or St. 1911, c. 82.
Answering, first, the third subdivision of the second question submitted, the Governor and Council may not legally allow per- sons employed under authority of St. 1911, c. 82, compensation 'or any investigation or report thereon made since the proroga- :ion of the General Court.
As to the other subdivisions of the second question submitted, >.t is to be observed that the services for which payment may be imade under St. 1911, c. 82, are the making of investigations and :he making of reports in writing upon such investigations. There is no express provision for payment of compensation for :he explanation of such reports to the ways and means com- mittee, nor is there any implication that such reports shall -equire oral explanation. In my opinion it cannot fairly be mplied that the persons employed under said statute were
444 OPINIONS OF THE ATTORNEY-GENEKAL.
to have compensation for oral explanations of their written re- ports. The examination of such persons before the ways and means committee upon the subjects of their reports appears to be of the same kind as the examination of any persons ap- pearing before such committee as witnesses. Their right to compensation would be the right which witnesses ordinarily have to compensation for appearance before such committees. See R. L., c. 6, § 51; R. L., c. 204, § 21.
As to the second subdivision of the second question sub- mitted, I am of opinion that the explanation to the Council of charges for services is not a service performed for the Common- wealth but by the persons interested, in their own behalf, for w^hich they are not entitled to extra compensation. So far as appears in your communication they appeared voluntarily be- fore the Council. If, however, they do not so appear, but are summoned, their standing is only that of witnesses. In that case they would be entitled only to the witness fees provided by law. See R. L., c. 175, § 7; R. L., c. 204, § 2.
Constitutional Law — Public Office — Truant Officer —
Woman.
Under existing statutes a woman may not be appointed to or exercise the duties of the office of truant officer, as established by R. L., c. 46, § 12, although there appears to be no constitutional objection thereto.
crvii^Servic '^^^ Clvil Scrvicc Commission desires my opinion upon the
^°™T9n'°'^' question whether or not a woman may be appointed to the September 28. position of truaut officcr, an office which is included within the classified civil service by Civil Service Rule 7, clause 19.
Truant officers, under the provisions of section 12 of chapter 46 of the Revised Laws, are appointed by the school committees of the several cities and towns, and the duties to be performed by such officers are to be found in section 13 of the same chap- ter, which is as follows: —
Truant officers shall inquire into aU cases aiising under the provisions of sections one and six of chapter forty-four and sections three, four and
JAMES M. SA^^FT, ATTORNEY-GENERAL. 44'
\-c of this chapter, and may make complaints and serve legal processes ;sued mider the provisions of this chapter. They shall have the over- .ght of children placed on probation under the provisions of section ?ven. A truant officer may apprehend and take to school, -wathout a •arrant, any truant or absentee found wandering about in the streets r pubUc places thereof. (See also R. L., c. 44, § 1, and St. 1909, c. 514, § 62-65).
From a consideration of the provisions of law above cited, nd of the earlier statutes upon the same subject (see St. 1873, . 262; St. 1874, c. 233, § 2; St. 1894, c. 498, § 20, and St. 1898, . 496, §§ 33 and 36), it appears that a truant officer is au- horized to serve legal process in all cases relating to truancy, 0 arrest truants under certain circumstances without a war- ant, and to enter into factories, workshops or mercantile estab- ishments for the purpose of obtaining information with re- ation to the employment of minors. This, in my opinion, constitutes a truant officer a public officer within the definition aid down in Attorney-General v. Drohan, 169 Mass. 534, which s as follows: —
Without attempting an exliaustive definition of what constitutes a
DubUc office, we think that it is one whose duties are in their nature public,
ihat is, involving in their performance the exercise of some portion of the
j ;overeign power, whether great or small, and in whose proper perfonnance
I ill citizens, irrespective of party, are interested, either as members of the
' entire body politic, or of some dulj^ estabUshed division of it.
At common law a woman could not perform the duties of a Dublic officer. Thus, in Robinson's Case, 131 Mass. 376, at page 378, the court, after discussing several offices, concludes: —
And we are not aware of any pubhc office, the duties of which must be discharged by the incumbent in person, that a woman was adjudged to be competent to hold, without express authority of statute, except that of overseer of the poor, a local office of an administrative character, in no way connected with judicial proceedings. (Page 379.)
In that case it was held that a woman could not, without statutory authority, be examined for admission as an attorney and counsellor of the Supreme Judicial Court.
446 OPINIONS OF THE ATTORNEY-GENERAL.
»
There are numerous opinions of the justices relative to the incumbency by women of positions and offices in the pubhc service. Thus, in 107 Mass. 604, the justices held that a woman could not constitutionally hold the office of justice of the peace. In 115 Mass. 602, the justices, in reply to the ques- tion, "Under the Constitution of this Commonwealth can a woman be a member of the school committee? " limiting them- selves to the effect of the Constitution upon the capacity of a woman to hold such office, and without interpreting existing statutes, held that the question should be answered in the affirmative. It is to be observed, however, that, as in the case of attorneys at law (see St. 1882, c. 139), a special act was passed authorizing women to act as members of a school com- mittee. See St. 1874, c. 389. In 150 Mass., at pages 586, 591, the justices declared that —
The clause of the Constitution which provides for the appointment of notaries public, interpreted with reference to the history and nature of the office and the long-continued and constant practice of the govern- ment here and the usage_ elsewhere, cannot be considered as authorizing the Governor, by and with the advice and consent of the Council, to appoint women to be notaries pubhc.
In 165 Mass. 599, the justices rendered an opinion that an act providing for the appointment of women to be notaries public would be unconstitutional. In an Opinion of the Justices in 136 Mass. 578, it was held that under St. 1879, c. 291, § 2, authorizing the Governor, with the advice and consent of the Council, to appoint nine persons as a State Board of Health, Lunacy and Charity, he might appoint a woman as a member of such board, but this opinion was based upon what the justices declared to be the established policy of the Legislature, evi- denced by numerous statutes, that women might serve upon such boards. See St. 1868, c. 153, § 1; St. 1870, c. 370, § 10; St. 1873, c. 166; St. 1877, c. 195, § 1.
The principle upon which these opinions are based constrains me to hold that in the present case, although the Constitution would not prevent a woman from holding the office of truant
JAMES M. SWIFT, ATTORNEY-GENERAL. 447
)fEcer, such office is a public office requiring the exercise of governmental functions; and that unless expressly authorized by itatute the incumbent should not be a woman. This view is onfirmed by a consideration of the following cases in which ;pecial legislation for that purpose was enacted: Overseers of he Poor, St. 1886, c. 150; Commissioners of Deeds and similar luties, St. 1883, c. 252; Assistant Probation Officers in the Vlunicipal Court of the City of Boston, St. 1897, c. 266. See, urther, St. 1907, c. 261.
The following provisions, among others, authorizing the ap- )ointment of women to public offices, are found in the Revised L,aws : —
C. 165, § 4, which provides that the assistant clerk for the county of Hampden may be a woman.
C. 25, § 62; which provides that an assistant town clerk may )e a woman,
C. 20, § 19, which provides that in counties in which there is QO assistant clerk of courts the county commissioners may ap- point a clerk yro tempore, who may be a woman.
C. 76, § 24, which provides that there shall be a board of registration in dentistry, consisting of five persons, male or fe- male.
C. 222, § 1, which provides that there shall be a board of prison commissioners, consisting of five persons, two of whom shall be women.
C. 22, § 8, which provides that registers of deeds may, sub- ject to the approval of the Superior Court, appoint an assistant register of deeds, who may be a woman.
C. 164, § 17, which provides that the assistant registers of probate in the counties of Bristol, Hampden and Hampshire . may be women.
C. 108, § 1, which provides that the inspection department of the district police shall consist of the chief of said force, thirty-three male and two female members.
I am therefore of opinion that, under existing statutes, a woman may not be appointed to or exercise the duties of the office of truant officer.
448
OPINIONS OF THE ATTORNEY-GENERAL.
To the State Board of Health.
1911 October 3.
Water Supply — Great Ponds — State Board of Health — Control and Regulation — Public Rights — Cities AND Towns.
Under the provisions of R. L., c. 75, §§ 112 and 113, as amended by St. 1907, c. 467, vesting in the State Board of Health the "oversight and care of all inland waters and of all streams and ponds used by any city, town or public institu- tion ... as sources of water supply," and providing that it may regulate and control the exercise of the public rights of boating, fishing, skating or taking ice, and may delegate the power of granting or withholding permits to the local authorities, "and upon complaint of any person interested . . . shall investigate the granting or withholding of any such permit and make such orders relative thereto as it may deem necessary for the protection of the public health," a city or town may prohibit the public right of boating or fishing upon a great pond used as a source of water supply only in cases where such prohibition is necessarily involved in the use of such great pond as a source of water supply, and where complaint is made with respect to the granting or withholding of a permit by the local authorities, if such board considers that the issuance of the permit so withheld would not endanger the purity of the source of water supply, it may make such order in the premises as it deems necessary for the protection of the public health, and may doubt- less require the issuance of the permit.
Ill a letter dated September 30 you state that by vote of the State Board of Health you were authorized to submit certain questions for my determination. These questions are as fol- lows : —
Query 1 . — Can any town or city absolutely prevent fishing and boating upon a natural great pond, even though the town or city claims to own in fee the surrounding property of the great pond which has been taken for a water supply ?
Query 2. — Can the State Board of Health issue a permit to boat and fish on a great pond, when the properly delegated authorities of a town or city refuse to issue a permit to fish and boat to an individual on a great pond wliich has been taken for a water supply by a town or city ?
The facts upon which your questions arise appear to be as follows: in 1909, the town of Concord, acting under authority of St. 1884, c. 201, § 2, took the water from a certain pond, which I assume to be a great pond, for the purposes of water supply, and thereafter petitioned the State Board of Health to make rules and regulations to prevent the pollution and to se-
JAMES M. SWIFT, ATTORNEY-GENERAL. 449
ure the sanitary protection of the waters of such pond, under he provisions of R. L., c. 75, § 113, as amended by St. 1907, . 4G7, § 1, which provides that —
Said board may cause examinations of such waters to be made to ascer- lin their purity or fitness for domestic use or their liabilitj' to impair le interests of the public or of persons lawfully using them or to imperil le pubhc health. It may make rules and regulations to prevent the Dilution and to secure the sanitaiy protection, of all such waters as are sed as som'ces of water supply. Said board may delegate the granting ad withholding of any permit required by such rules or regulations to ;ate boards and commissions and to selectmen in towns and to boards I health, water boards and water commissioners in cities and towns, to e exercised by such selectmen, boards and commissions, subject to such icommendation and direction as shall be given from time to time by 16 state board of health; and upon complaint of any person interested lid board shall investigate the granting or witliholding of any such ermit and make such orders relative thereto as it may deem necessary )r the protection of the public health.
On April 7, 1910, the State Board of Health duly made cer- ain rules and regulations, containing, among others, the regula- ion that —
No person shall bathe in, and no person shall, unless pennittcd by written pennit of the board of water and sewer commissioners of the awn of Concord, fish in, or send, drive or put any animal mto, Nagog 'end, so called. ... No person other than a member, officer, agent or mployee of said board of water and sewer commissioners, or public fficer whose duty may so require, shall, unless so pemiitted by a wTitten lermit of said board, enter or go, in any boat, skiff, raft or other contriv- nce, in or upon the water of said Nagog Pond, nor shall enter or go upon, r drive any animal upon, the ice of said pond.
Acting under this authority the board of water and sewer ommissioners of the town of Concord have refused to permit (Gating and fishing thereon, and one of the persons so refused las petitioned the board to act, under the provisions of R. L., ■• 75, § 113, as amended by St. 1907, c. 467, § 1, providing that ipon complaint of any person interested the State Board of health "shall investigate the granting or withholding: of any
450 OPINIONS OF THE ATTORNEY-GENEKAL.
such permit and make such orders relative thereto as it may deem necessary for the protection of the pubHc health."
The questions which you submit are not in terms limited to the specific facts above stated, which appear from the papers accompanying your communication, but I assume that they were framed with those facts in view, to determine the duty of your board in the premises.
It is well established that the appropriation of the waters, or any part thereof, of a great pond by a town for purposes of water supply under legislative authority, does not take away the rights of the public in such pond "excepting so far as they are necessarily lost in the exercise of a right conferred upon the town to use the waters of the pond as a source of water sup- ply." 2 Op. Atty.-Gen. 239, 240; Rockport v. Webster, 174 Mass. 385. It follows, therefore, that unless the public use of a great pond for boating or fishing is so far inconsistent with its use as a source of water supply as to be necessarily lost in the exercise of the right acquired by a town, such town would have no right to absolutely prohibit boating or fishing.
Under the provisions of R. L., c. 75, § 113, as amended by St. 1907, c. 467, § 1, it is to be observed that the State Board of Health is vested with authority to make rules and regula- tions "to prevent the pollution and to secure the sanitary pro- tection" of all waters which are used as sources of water sup- ply, and, acting under this provision, may require that persons who desire to exercise the public right of boating or fishing shall secure permits either from the Board itself or from the local board to whom the authority to issue such permits has been delegated, or may forbid the exercise of such public rights al- together. See Sprague v. Minon, 195 Mass. 581.
Replying specifically to your first inquiry, therefore, I am of opinion that a city or town is authorized to prohibit the public right of fishing or boating upon a great pond used as a source of water supply only in cases where such prohibition is neces- sarily involved in the use of such great pond as a source of water supply.
JAMES M. SWIFT, ATTORNEY-GENERAL. 451
Your second inquiry calls for my opinion upon the powers of he State Board of Health acting under the provisions of R. L., . 75, § 113, as amended by St. 1907, c. 467, § 1, already ited.
Under these provisions of law the Board may make rules and emulations to protect sources of water supply, and may pro- libit the exercise of the public rights of boating and fishing in >r upon such sources of water supply, except to such persons ,s may receive a permit therefor. The authority to issue such lermits may be delegated, among others, to selectmen in towns nd to boards of health, water boards or water commissioners in ities and towns, to be exercised under the direction of the >tate Board of Health. Where complaint is made in any case \ith respect to the granting or withholding of such permit by he Board to whom the issuance thereof has been delegated, he Board shall investigate the matter and make such orders •elative thereto as may be deemed necessary for the protection )f the public health. If, upon due investigation, the Board in iny case determines that a permit withheld by the local au- horities may be issued without endangering the purity of the •ources of water supply, they may make such order in the )remises as they deem necessarj^ for the protection of the pub- ic health, and such order may doubtless require the issuance )f the permit. In such a case, therefore, the State Board of health may issue or cause to be issued a permit to boat and ish, notwithstanding that the properly delegated authorities )f a city or town have previously refused to do so, provided :hat such issuance is not inconsistent with the proper protection )f the public health.
452
OPINIONS OF THE ATTORNEY-GENERAL.
Lyman and Industrial Schools — Trustees — Lyman Fund — Income — Purchase of Land — Title.
Under the provisions of St. 1911, c. 566, § 3, that the trustees of the Massachusetts Training Schools "succeed to the trusts, right, powers and duties" of the trustees of the Lyman and Industrial Schools, and of R. L., c. 86, § 1, that the board of trustees of the Lyman and Industrial Schools should be "a corporation for the purpose of taking, holding and investing in trust for the commonwealth any grant, devise, gift or bequest made for the use of any institution of which they are trustees," the trustees of the Massachusetts Training Schools may purchase, from the accumulated income from the Lyman Fund and Lyman Trust Fund, so called, land for the use of the Lyman School.
The title to the land so purchased should be taken in the name of the trustees, in trust for the Commonwealth.
Without express or impUed authority from the Legislature, title to land cannot be taken in the name of the Commonwealth by any public officer or board.
In behalf of the trustees of the Massachusetts Training Schools you have requested my opinion upon certain questions
To the Trus- tees of the Massachusetts Training
' '^ 1911" hereinafter quoted.
October 18. -.7- n , .• • p 11
lour nrst question is as follows
Have the trustees of the Massachusetts Training Schools (see Acts 1911, c. 566), the successors to the trustees of the Lyman School (as pro- vided in R. L., c. 86), the right to purchase land for the use of the Lyman School from the accumulated income from the Lyman Fund and Lyman Trust Fund, so called ?
In replying to this inquiry I assume that the language of the gift of the Lyman Fund and the Lyman Trust Fund, so called, is broad enough to authorize the proposed expenditure of accumulated income, and that the only point upon which you desire my advice is as to the statutory authority of the trustees. As to the statutory authority of the trustees, my opinion is that they have the right to purchase land for the use of the Lyman School from the accumulated income of these funds. I base this opinion upon the statutory provision (St. 1911, c. 566, § 3) that the trustees of the Massachusetts Training Schools "succeed to the trusts, rights, powers and duties" of the trustees of the Lyman and Industrial Schools; and upon the
JAMES M. SWIFT, ATTORNEY-GENERAL. 453
tatutory provision (R. L., c. 86, § 1) that the board of trustees I if the Lyman and Industrial Schools was "a corporation for he purpose of taking, holding and investing in trust for the ommonwealth any grant, devise, gift or bequest made for the ise of any institution of which they are trustees." If the rustees of the Massachusetts Training Schools have the right o expend the accumulated income in question for the use of he Lyman School, and if they have the right to receive grants ■f land, it follows that they may expend such accumulated in- ome in the purchase of land. Your second question is as follows: —
If they have this right, how should the title be taken, whether in the .ame of the trustees, or directly in the name of the Commonwealth ?
In my opinion title should be taken in the name of the trus- ees, in trust for the Commonwealth. Your third question is as follows: —
Can the Commonwealth take title without legislative sanction, it leing in the nature of a gift to the Commonwealth, if purchased by income rem accmnulated funds, and without appropriation tlierefor?
Title to land cannot be taken in the name of the Common- vealth by any board or officer who has not express or implied luthority from the Legislature to do so. As I have advised /■Qu in answer to your first inquiry, I am of opinion that there s statutory authority for the trustees of the ^Massachusetts Fraining Schools to take title in the name of the trustees, in :rust for the Commonwealth, to land purchased with accumu- ated income of trust funds.
454
OPINIONS OF THE ATTORNEY-GENERAL.
To the Bank Commissioner.
1911 November 3.
Trust Company — Savings Department — Board of In- vestment — Member as Endorser on Note for Money Loaned by Corporation.
Under the provisions of St. 1908, c. 520, § 2, that all loans or investments of deposits in the savings department of a trust company "shall be made in accordance with statutes governing the investment of deposits in savings banks," and of St. 1908, c. 590, § 44, that no member of a board of investment of a savings bank shall borrow or use any portion of the funds of such bank or "be surety for loans to others or, directly or indirectly ... be an obligor for money borrowed of the corporation," a member of the board of investment of a trust company cannot legally be an endorser upon a personal note for money loaned by such company to any person.
You have requested my opinion "as to whether a member of the board of investment of a trust company can be an en- dorser on a personal note for money loaned by said trust company to a borrower without violating the provisions of sec- tion 2 of chapter 520, Acts of 1908, as restricted by section 44 of chapter 590, Acts of 1908."
Section 1 of chapter 520 of Statutes of 1908 is as fol- lows: —
Every trust company soliciting or receiving deposits (a) which may be withdrawn only on presentation of the , pass-book or other similar form of receipt which permits successive deposits or withdrawals to be entered thereon; or (b) which at the option of the trust company may be withdrawn only at the expiration of a stated period after notice of inten- tion to withdraw has been given; or (c) in any other waj' which might lead the public to believe that such deposits are received or invested under the same conditions or in the same manner as deposits in savings banks; shall have a savings department in which all business relating to such deposits shall be transacted.
Section 2 provides that —
All such deposits shall be special deposits and shall be placed in said savings department, and all loans or investments thereof shall be made in accordance with the statutes governing the investment of deposits in savings banks. The duties of the board of investment relative to the investment of such deposits shall be performed by a board or committee appointed by the board of directors of such corporation.
JAMES M. SWIFT, ATTORNEY-GENERAL. 455
Section 44 of chapter 590 of Statutes of 1908 provides that —
No president, treasurer, member of a board of investment or officer ' )f such corporation charged with the duty of investing its funds shall )orrow or use any portion thereof, be surety for loans to others or, directly )r indirectly, whether acting indiiidually or as trustee holding property n trust for another person, be an obhgor for money borrowed of the corporation; . . .
It was the obvious purpose of the Legislature, in St. 1908, ^ 520, § 2, to make the investment or loan of deposits in the savings department of a trust company subject to the same regulations and restrictions that are applicable to the invest- ment or loan of deposits in savings banks, and one of these re- strictions is that no member of a board of investment or in- vestment committee shall borrow or use any of such deposits, or be surety for loans made to others than himself. It follows, therefore, in my opinion, that a member of a board of invest- ment of a trust company cannot legally be an endorser on a personal note for money loaned by such company to any person.
Labor Laws — Mercantile or Manufacturing Establish- ment— Restaurant — Establishment maintaining Lunch Room and Food Salesroom.
An establishment which maintains a lunch room, and also a food salesroom from which supplies are sent to other lunch rooms maintained by the same establish- ment at other places and lunches are sent to be served at certain high, Latin and normal schools, the receipts of such food salesroom being a little over one eighth of the total receipts, is not, by reason of the maintenance of such food salesroom, excluded from the definition of "mercantile establishment" in St. 1909, c. 514, § 17, that such establishment "shall mean any premises used for the purposes of trade in the purchase or sale of any goods or merchan- dise, and any premises used for the purposes of a restaurant or for publicly providing and serving meals," and is not, therefore, a "manufacturing establishment," defined by the same section as "any premises, room or place used for the purpose of making, altering, repairing, ornamenting, finishing or adapting for sale any article or part of an article."
You have requested my opinion as to whether the New Eng- '^°.^J{^^f ^^^ land Kitchen, so called, maintained by the Women's Educa- Di«t;>>7°'i<^«- tional and Industrial Union of Boston, is a manufacturing or a no^2!!^'°-
456 OPINIONS OF THE ATTORNEY-GENERAL.
mercantile establishment within the meaning of those terms as used in the laws relating to labor. The facts, I understand, are these: At the New England Kitchen, which is situated on Charles Street, there is a lunch room and a food salesroom. From this place is sent the food which the Union serves for lunches at the high, Latin and normal schools. From it also are sent supplies to the place of business of the Union on Boyl- ston Street, where are maintained three lunch rooms, with a common kitchen, and a food salesroom. Receipts from sales of food at the food salesroom of the New England Kitchen con- stitute about one ninth of the total receipts of the New Eng- land Kitchen, and a little over one-eighth of such total receipts exclusive of supplies sent to Boylston Street. You state that "it is to be noted that the establishment in question [by which I infer that you refer to the New England Kitchen and not to the Union's place of business on Boylston Street] may be con- sidered principally as a restaurant; also that it is a general cus- tom in restaurants to sell such foods as are served therein to persons desiring to use the same off the premises." St. 1909, c. 514, § 17, contains the following definitions of "manufactur- ing establishments" and "mercantile estabhshments" as those terms are used in the laws relative i^o the employment of labor : —
"Manufacturing establishments" shall mean any premises, room or place used for the purpose of making, altering, repairing, ornamenting, finishing or adapting for sale any article or part of an article.
"Mercantile establishments" shal mean any premises used for the purposes of trade in the purchase or sale of any goods or merchandise, and any premises used for the purposes of a restaurant or for publicly providing and ser\ang meals.
The labor laws contain distinct provisions applicable to "manufacturing establishments" and to "mercantile establish- ments." See, for example, St. 1909, c. 514, § 47, and § 48, as amended by St. 1911, c. 484, § 1. The definitions must there- fore be regarded as mutually exclusive. If an establishment is within one of the definitions it is not within the other. The
JAMES M. SWIFT, ATTORNEY-GENERAL. 457
New England Kitchen is, on your statement, to be "considered principally as a restaurant." A restaurant is in express terms within the definition of "mercantile establishments." It is, therefore, immaterial that but for such express inclusion it might be considered as within the definition of "manufacturing establishments." I infer that your inquiry is as to whether the fact that the New England Kitchen maintains a food sales- room excludes it from the definition. As you have stated, the sale at a restaurant of food to be used off the premises is a usual practice, and one which must be taken to have been in the mind of the Legislature when it defined "mercantile estab- hshments" as including restaurants. The receipts from sales at the food salesroom of the New England Kitchen are a com- paratively small part of the total receipts of the establishment; in other words, the food salesroom is incidental to the lunch room, or restaurant. Without attempting to state precisely where the line is to be drawn, I advise you that in my opinion, from the facts stated, the New England Kitchen is not by reason of its maintaining a food salesroom excluded from the definition of "mercantile establishments." It is a mercantile rather than a manufacturing establishment.
Election — Death of Candidate on Morning of Election Day — Failure to elect — Special Election — Gov- ernor.
Where a candidate for the office of clerk of the courts died on the morning of the day of the election, but as the fact of his death was not generally known and his name was upon the official ballot the highest number of votes was cast for him, there was a failure to elect, and the Governor should cause a precept to be issued for the election of such officer in accordance with the provisions of St. 1907, c. 560, § 306.
You have requested my opinion as to whether William C. q°J^^^ot. Kevin was elected clerk of the courts for the county of Dukes November 27. County at the last State election and as to whether a new elec- tion will be necessary.
458 OPINIONS OF THE ATTORNEY-GENERAL.
It appears that the name of Samuel Keniston was upon the official ballot as a candidate for such office and that the highest number of votes was cast for him. It further appears that said Keniston died on the morning of election day before the open- ing of the polls. It does not appear to what extent the fact of the death of said Keniston was known to the voters of the county, but it is not claimed by the said Nevin that such fact was generally known.
Upon these facts I am of opinion that said Nevin was not elected clerk of the courts for said county, but that there was a failure to elect. This view is supported by authority. Hoices V. Perry, 92 Ky. 260; State v. Walsh, 7 Mo. App. 142; State v. Speidel, 62 Ohio St. 156. It is an application of the principle that where the person receiving the highest number of votes is ineligible there is a failure to elect, and the person receiving the next highest number is not elected. This rule seems to be com- mon to England and America. In England, however, and in one or more States of the United States it seems that this rule does not apply where the voters at the time of the election have notice of the ineligibility. The weight of authority in America seems to be, however, that the fact of notice is immaterial. Bowker et ah, Petitioners; Loring and Russell, Election Cases, 282, and note; Cooley, Const. Lim. (7th ed.) 931, 932; Dillon, Municipal Corporations (5th ed.), § 373, and note. I am aware of no authority which, in the absence of evidence that the fact of the death of said Keniston was generally known to the voters of Dukes County at the time of the election, would hold said Nevin to have been elected clerk of the courts. Ac- cording to the weight of authority in this country he would not have been elected even if it appeared that the fact of the death of said Keniston was generally known.
Since there has been a failure to choose a clerk of the courts, St. 1907, c, 560, § 306, becomes applicable. This section pro- vides that the Governor shall cause a precept to be issued for the election of such officer.
JAMES M. SWIFT, ATTORNEY-GENERAL. 459
City or Town — Tuberculosis Hospital — Maintenance OF Ward or Beds in Priyate Hospital or General City or Town Hospital — Subsidy from Common- wealth.
The maintenance by a city or town of a tuberculosis ward or bed or beds in a private tuberculosis hospital or in a general city or town hospital does not fulfil the requirements of St. 1911, c. 597, § 1, which provides that "every city or town which establishes and maintains a tuberculosis hospital shall be entitled to receive from the commonwealth a subsidy of five dollars per week for each patient who is unable to pay for his support, or whose kindred bound by law to maintain him are unable to pay for the same."
You have submitted to me three inquiries relative to the To the
. Trustees of
construction of St. 1911, c. 597, entitled "An Act to encourasre Hospitals for
" Consumptives.
and promote the building and use of tuberculosis hospitals in December 4 cities and towns." This statute, in section 1, provides that —
Every city or town vdiich establishes and maintains a tuberculosis hospital shal be entitled to receive from the commonwealth a subsidy of five dollars per week for each patient who is unable to pay for his sup- port, or whose kindred bound by law to maintain him arc unable to pay for the same, but the city or town shall not become entitled to his subsidy unless, upon examination authorized by the trustees of hospitals for con- sumptives, the sputum of such patients be found to contain bacilli of tuberculosis, and unless the hospital be subject to the inspection of, and be approved by, said trustees.
Your inquiries are substantially whether or not a city or town is entitled to the subsidy above provided for (1) if it maintains in a private tuberculosis hospital a tuberculosis ward or bed or beds; (2) if it maintains a tuberculosis ward in a general city or town hospital, or a bed or beds for tuberculous patients in such hospitals; and (3) if it maintains a tuberculosis ward in a private general hospital or a bed or beds for tuber- culous patients in such hospital.
I am of opinion that all three of these inquiries should be answered in the negative. The purpose of the statute is ob- viously as stated in the title, "to encourage and promote the building and use of tuberculosis hospitals; " or, in other words, to furnish an inducement to cities and towns to erect and
460
OPINIONS OF THE ATTORNEY-GENERAL.
maintain hospitals for persons afflicted with tuberculosis where such patients may be cared for and treated. It follows, there- fore, that cities and towns which maintain wards or beds in private hospitals or in general city hospitals are not entitled to the subsidy provided for in the section above quoted.
To the Treasurer and Receiver- General. 1911 December 4.
Commonwealth — Employees — Retirement — Massachu- setts Agricultural College — Teachers and Em- ployees.
The Massachusetts Agricultural College is a public charitable corporation organized for educational purposes, and is not, strictly speaking, a State institution and its teachers and employees are not eligible to participate in the retirement system established by St. 1911, c. 532, for employees of the Commonwealth.
You have requested my opinion as to whether teachers and employees of the Massachusetts Agricultural College are eligible for participation in the retirement system for the employees of the Commonwealth, established by chapter 532 of the acts of the present year. Only employees of the Commonwealth are eligible for such participation. By the terms of the statute "the word 'employee' means any person on the pay roll of the commonwealth, whether employed in the direct service of the commonwealth or in the metropolitan district service, who regularly gives his whole time to that service " (section 1). The teachers and employees of the Massachusetts Agricultural Col- lege are not, in my opinion, employees of the Commonwealth, within this definition. Under date of June 13, 1910, my prede- cessor advised the House of Representatives that the Massachu- setts Agricultural College was "a public charitable corporation organized for educational purposes," and that it was not "in the strict sense of the words ... a State institution." Ante, pp. 308, 312. Since that time the Massachusetts Agricultural College has transferred its property to the Commonwealth under authority of St. 1911, c. 311. That statute did not, however, change the nature of the institution. Its teachers and employees are, therefore, employees of a public charitable
JAMES M. SWIFT, ATTORNEY-GENERAL. 4C1
corporation and not of the Commonwealth, even though con- siderable sums of money are appropriated by the Common- wealth for the support of the corporation.
Civil Service
Civil Service — Vendor of Ixtoxicating Liquors — Drug- gist — Sixth-class License.
A druggist who holds a sixth-class license to sell intoxicating liquors is a "vendor of intoxicating liquors" within the meaning of R. L., c. 19, § 16, p^o^^ding that "no . . . vendor of intoxicating liquors shall be appointed to or retained in any office, appointment or employment to which the provision of this chapter shall apply."
In behalf of the Civil Service Commission you have re- To the
. "^ . Civil Se
quested my opinion as to whether a druggist who holds a sixth- Commission, class license to sell intoxicating liquors is a "vendor of in- December ii. toxicating liquors" within the meaning of section 16 of chapter 19 of the Revised Laws.
Chapter 19 of the Revised Laws deals with the civil service. Section 16 of this chapter is as follows: —
No person habitually using intoxicating liquors to excess and no vendor of intoxicating liquors shall be appointed to or retained in any office, appointment or employment to which the provisions of this chapter apply.
Licenses of the sixth class are "licenses to retail druggists and apothecaries to sell liquors of any kind for medicinal, mechan- ical or chemical purposes only, and to such persons only as may certify in writing for what use they want them." R. L., c. 100, §18.
I am of opinion that a druggist who holds a sixth-class license, and by virtue thereof sells intoxicating liquors, is a "vendor of intoxicating liquors" within the meaning of the civil service statute quoted. It may be that the reasons which in the mind of the Legislature make the holder of a license of one of the first five classes an improper person for appointment under the civil service law do not apply to the holder of a sixth-class license. A holder of a sixth-class license who sells intoxicating
462
OPINIONS OF THE ATTORNEY-GENERAL.
liquors thereunder is, however, clearly within the ordinary meaning of the words "vendor of intoxicating liquors." In my judgment, the intention of the Legislature to exclude the holder of such a license from the statutory prohibition is not clear enough to justify a departure from the ordinary construction of the phrase.
To the Bank Commissioner .
1911 December 21.
Savings Banks — Legal Investment — Bonds of Terminal Corporations — Railroad.
By providing in St. 1908, c. 590, § 68, cl. 3, subdivision a, that deposits in savings banks and the income derived therefrom may be invested "in the bonds or notes, issued in accordance with the laws of this commonwealth, of a railroad corporation incorporated therein, ... or in the first mortgage bonds of a terminal corporation incorporated in this commonwealth," and in subdivision c of cl. 3 of said § 68, as amended by St. 1909, c. 491, § 8, that such deposits and the income derived therefrom may be invested "in the first mortgage bonds of a railroad corporation incorporated in any of the New England states, the railroad of which is located wholly or in part therein," the Legislature intended to restrict the investment of such deposits and income to the first mortgage bonds of terminal companies incorporated within the Common- wealth.
The Portland Terminal Company, a corporation organized under the laws of the State of Maine for the purpose of establishing, maintaining, operating and developing a terminal in the city of Portland, and authorized to acquire and hold any or all of the franchises, rights or properties of certain railroad corpora- tions within the territory designated as such terminal, which within such territory operates trains, issues time-tables, sells tickets therefor, and generally engages in the business of a common carrier of passengers, baggage and express, may, however, be construed to be a "railroad corporation" within the mean- ing of St. 1908, c. 590, § 68, cl. 3, subdivision c, as amended by St. 1909, c. 491, § 8, above quoted.
You have submitted for my opinion the following request: "Will you kindly give me your opinion as to whether the bonds of the Portland Terminal Company will be legal investments for Massachugfetts savings banks, if in proper form."
While your question is a broad one, from the correspondence and memoranda accompanying your letter I assume that the specific point of inquiry is whether or not the bonds of the Port- land Terminal Company would be legal investments for Massa- chusetts savings banks, or, in other words, whether the Portland Terminal Company is to be considered as a railroad, under the
JAMES M. SWIFT, ATTORNEY-GENERAL. 463
provisions of St. 1908, c. 590, § 68, cl. 3, subdivision c, as amended by St. 1909, c. 491, § 8, which, in substance, provides that deposits in savings banks, and the income derived there- from, shall be invested only as follows : —
c In the first mortgage bonds or assumed first mortgage bonds or in the bonds secured by a refunding mortgage as described in paragraphs (3) or (4) of subdivision g, of a raihoad corporation incorporated in any of the New England states, the railroad of which is located wholly or in part therein, which have been guaranteed as to principal and interest by a railroad corporation described in subdivisions a or 6 which is in possession of and is operating its own road.
Said company was incorporated under the laws of Maine, by chapter 96 of the Acts of 1887, entitled "An Act providing for a Union Railway Station at Portland." Section 1 of that act named the incorporators and provided that the corporation should be authorized "to erect, maintain, manage and govern a union railway station in Portland, for passengers, with con- venient approaches, tracks, round houses, car sheds, signal towers and all other convenient and usual appurtenances of union railway stations; and for those purposes (was) authorized to purchase, lease or otherwise obtain the right to occupy so much as may be convenient therefor, of the tracks and road-bed of any railroad company, with the consent of the company own- ing or controlling such tracks or road-bed, and also to acquire, hold and dispose of all such lands and buildings and other prop- erty, real or personal, as may be convenient for the purposes aforesaid." By section 2 a provision was made for such rules and regulations for the government of such union station and its grounds and approaches as might be consistent with the laws of the State of Maine and the ordinances of the city of Portland. This section also contained a provision that any railroad entering Portland might have the common use of the station. In section 4 it was provided that any railroad com- pany whose tracks had entered or might thereafter enter the city of Portland should have the lawful right to purchase, hold and dispose of shares in the capital stock or bonds, scrip or
464 OPINIONS OF THE ATTORNEY-GENERAL.
other negotiable promises issued by the Union Railway Station Company, "or guaranty to other purchasers or holders thereof, the payment of said bonds, scrip, or other promises or any part thereof."
This chapter was amended during the present year by chap- ter 189 of the laws of the State of Maine for 1911, by which the name of the corporation was changed to the Portland Terminal Company. By section 2 it was provided that the railroad ter- minal created by the act should include within its limits any or all the properties of the Union Railway Station Company, the Boston & Maine Railroad, the Maine Central Railroad Com- pany, the leasehold interests of the Maine Central Railroad as lessee of the Portland & Ogdensburg and of the Portland & Rumford Falls Railroad, situated in the cities of Portland, South Portland or Westbrook; and any or all the properties in such cities of any other railroad company using the terminal facilities under agreement with the terminal corporation. Sec- tion 3 was as follows : —
For the establisliment, maintenance, operation and development of such railroad terminal, and for the regulation of railroad business, passen- ger, freight and express, within its limits, the Portland Tenninal Company may acquire by contract, purchase or lease from the Boston & Maine Rail- road and the Maine Central Raiboad Company,' or from any other railroad company using or desiring to use said terminal, all or any part of the rail- road. franchises, rights or properties within the limits of said terminal, including lands, rights of way, tracks, road-beds, bridges, wharves, water rights, round-houses, raikoad repair shops, stations, or other buildings; and all title to the same or any interests therein, or any right of exercise or operation thereof or to manage the same, withm the limits aforesaid; nothing herein contained, however, shall authorize the Portland Termmal Company to acquire or to renew the use of the abandoned railroad location from Woodfords to the junction with the belt line, so called, running from the foot of Preble street to the Union station in Portland. The tracks on said abandoned location and Pitt street bridge, so called, over the same to be removed by the Boston & Maine Raikoad at its own expense within three months after this act takes effect.
Within the limits of said terminal for the purpose of making changes and improvements therein and for all the purposes of its charter, the terminal company shall have the same powers of eminent domain as said railroad companies have by law; damages for real estate taken by
JAMES M. SWIFT, ATTORNEY-GENERAL. 465
condemnation to be estimated and paid in tlie same manner as prouded by law in cases of lands taken for railroad uses.
Any corporation owning, operating, or controlling the same is hereby authorized to make sale, lease or conveyance to the said terminal com- pany of property which the company is hereby authorized to acquire.
The Portland Terminal Company is hereby authorized to purchase or build railway repair shops within its hmits and to operate the same under its own management.
Within the railroad locations included in the terminal the terminal company may locate according to law and build, maintain and operate electric railroads; and may purchase or lease, maintain and operate electric street raih'oads within the limits of said terminal.
Section 6 provided as follows : —
The Boston & Maine Railroad and the Maine Central Railroad Com- pany, and any other railroad company using the terminal facilities by agreement with the terminal company, are each hereby authorized to guarantee the pajnnent of the bonds issued by the Portland Terminal Company under this act, and to lease or convey to said Portland Terminal Company any or all property within the limits of said terminal.
Under these provisions said Portland Terminal Company is authorized, within the limits of the railroad terminal established for the purpose, to operate railroads, both steam and electric, and the amount of trackage comprised within the cities men- tioned in the act is of considerable extent. It is, therefore, in a broad sense a "railroad" company, as held in Coughlan v. Cambridge, 166 Mass. 268, and in Wall v. Piatt, 169 Mass. 398; and see ante, p. 43. When this last opinion was given, how- ever, the statutes relating to investments for savings banks con- tained no mention of a terminal company, as such. This first appears in St. 1908, c. 590, § 68, cl. 3, subdivision a, in which it is provided that investments may be made as follows: —
In the bonds or notes, issued in accordance sviih the laws of this com- monwealth, of a railroad corporation incorporated therein the railroad of which is located wholly or in part therein, which has paid in di^^dends in cash an amount equal to not less than four per cent per annum on all its outstanding issues of capital stock in each fiscal year for the five years next preceding such investment, or in the first mortgage bonds of a tcr-
466 OPINIONS OF THE ATTORNEY-GENERAL.
minal corporation incorporated in this commonwealth and whose prop- erty is located therein, which is owned and operated, or the bonds of which are guaranteed as to principal and interest, or assumed, by such railroad corporation.
The evident intention of the Legislature to distinguish be- tween terminal companies within Massachusetts and those out- side of this Commonwealth is significant, and leads me to the conclusion that it was not intended to permit investment by savings banks in the bonds of a terminal corporation, as such, organized and actually situated in some other New England State.
In the present case, while the matter is not entirely free from difficulty, I am of opinion that the bonds of the Portland Ter- minal Company may be considered bonds of a railroad corpora- tion, and therefore legal investments for savings banks so far as this specific inquiry is concerned.
I have been informed, and assume to be facts, that the Port- land Terminal Company has exercised its authority to take over the property of the Boston & Maine Railroad and the Maine Central Railroad within the terminal limits established by the act; that it runs regular passenger trains from Union Station in Portland to Portland Junction on the Grand Trunk Railroad; that it owns fifteen locomotives, rents- six, and owns its own equipment of flat cars, derrick cars, and other rolling stock, and operates passenger cars; that it issues time-tables and ad- vertises the arrival and departure of its trains; that it sells its own passenger tickets and receives the compensation therefor; and that it employs a large number of people, including en- gineers, firemen, brakemen, conductors, baggage-masters, freight agents, ticket agents, ticket sellers and lost-article agents. Within its limits, therefore, it seems to be doing the business of a common carrier of passengers, baggage and express. It therefore appears that said corporation, in addition to being a terminal company, is a railroad company within the meaning of the provisions of law hereinbefore cited.
The foregoing conclusion is upon the assumption that said bonds, when issued, will be in all other respects in accordance with the requirements of our statute. It appears, however, that
JAMES M. SWIFT, ATTORNEY-GENERAL. 461
a part of the property to be covered by the mortgage securing said bonds is subject to a prior consolidated mortgage of the Maine Central Railroad maturing April 1, 1912. This, in my opinion, will prevent said bonds from becoming legal invest- ments for Massachusetts savings banks until after the expira- tion of said mortgage on April 1, 1912.
Marriage — Notice of Intention of Marriage — Entry —
Certificate.
Under the provision of R. L., c. 151, § 16, as amended by St. 1911, c. 736, § 1, that "persons who intend to be joined in marriage in this commonwealth shall, not less than five days before their marriage, cause notice of their intention to be entered in the office of the clerk or registrar of the city or town in which they respectively dwell, or, if they do not dwell within the commonwealth, in the office of the clerk or registrar of the city or town in which they propose to have the marriage solemnized," and the provision of R. L., c. 151, § 53, as amended by St. 1911, c. 736, § 2, that "after the expiration of five days from the date of the entry of such intention the clerk or registrar shall deliver to the parties a certificate . . . , specifj-ing the time when notice of the intention of marriage was entered with him . . .", delivery of the certificate should not be made until the expiration of five full days after the date of entry, excluding the day of such delivery and Sundays and holidays.
You have requested my opinion as to the manner in which xothe
„ . p . Secretary.
the time which must elapse between the entry ot notice ot in- 1912
. _ , » . January 2.
tention of marriage and the issuing of the certificate thereof is
to be computed.
R. L., c. 151, § 16, as amended by St. 1911, c. 736, § 1, is as follows : —
Persons who intend to be joined in marriage in this commonwealth shall, not less than five days before their marriage, cause notice of their intention to be entered in the office of the clerk or registrar of the city or town in which they respectively dwell, or, if they do not dwell within the commonwealth, in the office of the clerk or registrar of the city or town in which they propose to have the man-iage solemnized.
R. L., c. 151, § 23, as amended by St. 1911, c. 736, § 2, is, in part, as follows: —
After the expiration of five days from the date of the cntiy of such intention the clerk or registrar shall deliver to the parties a certificate
468 OPINIONS OF THE ATTORNEY-GENERAL.
signed by him, specifying the time when notice of the intention of marriage was entered with him and all facts relative to the marriage which are required by law to be ascertained and recorded, except those^relative to the person by whom the marriage is to be solemnized.
R. L., c. 151, § 25, as amended by St. 1911, c. 736, § 3, pre- scribes a penalty for the improper issuing of a certificate of intention of marriage.
The language used in section 16, as amended, to describe the five days' period is different from that used in section 23, as amended. It describes, however, the same period of time, and must be construed in the same way. In computing the five days' period in accordance wdth section 23, as amended, the date of the entry of intention must be excluded. Bemis v. Leonard, 118 Mass. 502. The language clearly indicates that five days are to expire before the delivery of the certificate, that is, the day of such delivery is to be excluded from the computa- tion. Fractions of a day are, of course, to be disregarded (see Hannum v. Tourtellott, 10 Allen, 494), as a day means twenty- four hours and begins at midnight. As to Sunday, the gen- eral rule is that "when a statute fixes a limitation of time with- in which a particular act may or may not be done," if the time limited "is less than a week, Sunday is excluded." Cunning- ham V. Mahan, 112 Mass. 58, 59. I know of no reason why the general rule should not be applied to the statute in question. The meaning of this statute is that persons who are interested in an intended marriage are entitled to a reasonable opportunity on each of five days to examine the records in the office of the clerk or registrar of the city or town for the notice of intention of such marriage. On Sunday the clerk or registrar is not required to keep his office open and his records are not ordinarily open to inspection. Similarly, he is not required to keep his office open on a legal holiday. R. L., c. 8, § 5, el. 9. Such a holiday should, therefore, in my opinion, be excluded from the computation. See, however, my opinion to the Governor of the Commonwealth, under date of June 1, 1911.
JAMES M. SWIFT, ATTORNEY-GENERAL. 469
Legislative Counsel and Agents — Returns — Compensation.
The pro\-ision of R. L., c. 3, § 24, requiring the keeping of a docket for the entr3' of the names of legislative counsel and agents, that "such entries shall include the name and business address of the employer, the name, residence and occupation of the person employed, the date of the employment or agreement therefor, the duration of the employment, . . . and the special subjects of legislation, if any, to which the employment relates," is satisfied by an entry that a person is so employed "on all matters of interest to the emploj^er," unless the employment is for some special subject of legislation.
The provision of R. L., c. 3, § 24, above quoted, and the further pro\asion of section 30, that an employer "shall render to the secretary of the commonwealth a complete and detailed statement, under oath, of all expenses incurred or paid in connection with the employment of legislative counsel or agents, or with promoting or opposing legislation," are not complied with by a statement that a person is employed as legislative counsel upon an annual salarj' without a statement either of the amount of such salary or of a fair apportionment thereof.
You have requested my opinion with reference to R. L., g^^retary c. 3, §§ 23, 24, 25 and 30, in substance as to whether a general janlfary 9. statement that a legislative counsel or agent is employed "on all matters of interest to said corporation," is in compliance with the law.
Said section 24, after requiring the keeping o? a docket in which shall be entered the names of legislative counsel and agents, provides that —
Such entries shall include the name and business addi'ess of the em- ployer, the name, residence and occupation of the person employed, the date of the employment or agreement therefor, the duration of the em- ployment, if it can be determined, and the special subjects of legislation, if any, to which the employment relates.
Under this section, in my opinion, no entry is required other than one such as "on all matters of interest to said corpora- tion," unless said employment is for some special subject of legislation. There may be a general employment other than employment in connection with specific legislation. Section 25, however, requires further entries, both by the employer and the employee. Under the requirements of this section I am of the
470 OPINIONS OF THE ATTORNEY-GENERAL.
opinion that although the original employment may be gen- eral, a counsel or agent before acting with reference to any specific piece of legislation must make an entry of that specific legislation upon the docket.
You also request my opinion in substance as to whether the return by a legislative counsel or agent of employment on an annual salary, which salary is not stated, is in compliance with the law. Said section 30 requires that the employer " shall ren- der to the secretary of the commonwealth a complete and de- tailed statement, under oath, of all expenses incurred or paid in connection with the employment of legislative counsel or agents, or with promoting or opposing legislation," This does not, in my opinion, require an employer to make a detailed payment for each particular service. The statute, however, is not complied with by a mere statement that the legislative counsel is employed upon an annual salary. If the service per- formed as legislative counsel or agent is substantial in amount, so that it must have been taken into consideration in fixing the amount of the annual salary, there is expense incurred within the meaning of the statute which should be made to appear in some manner.^ It is not clear just how this should be done in case no apportionment is made by the, employer. If the an- nual salary is stated it would seem to cover the requirement of the statute, or if a fair apportionment of said salary was made, and that part apportioned to legislative work is returned, the provisions of the statute would seem to be fulfilled. A mere re- turn of an annual salary, without stating any amount, is not in my opinion, a compliance with the law.
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 471
Attorney-General — Order fixing Limit of Time for Performance of Duty to advise General Court — Street Railway Corporation — New York, New Haven & Hartford Railroad Company — Ownership AND Control of Springfield Street Railway Com- pany — Supreme Judicial Court — Decree — Compli- ance.
The General Court has no authority to fix a limit of time within which the Attorney- General shall discharge his statutory duty of advising the General Court or either branch of it.
The action of the New York, New Haven & Hartford Ralilroad Company in divest- ing itself of all interest in or control over the New England Investment and Security Company, which, through the instrumentality of the Springfield Railway Companies, owned and controlled the Springfield Street Railway Company, and by placing the stock of such street railway company in the ownership and control of the New England Investment and Security Company, whose trustees and officers are not connected as officers or directors with the New York, New Haven & Hartford Railroad Company and have entered into no agreement, trust or other undertaking with said company, with respect to their acts as officers or trustees of the New England Investment and Security Company, if performed in good faith, constitutes a compliance with the decree of the Supreme Judicial Court dated June 23, 1908, which enjoined the New York, New Haven & Hartford Railroad Company from subscribing for or taking or holding, directly or indirectly, the stock of the Springfield Street Railway Company, and from assuming or exercising the franchise or privilege of subscribing for, taking or holding the stock of such corporation.
On June 2, 1911, the General Court adopted an order in the xothe
General 1912 January 29.
p ii . J General Court.
lollowing terms: — 1912
Ordered, That the Attorney-General report to the General Court not later than Jan. 15, 1912, whether the New York, New Haven & Hartford Raihoad Company has comphed, with respect to the Springfield Street Railway Company, with the order of the court, as more particularly set out in a decree, under date of June 23, 1908, of the Supreme Judicial Court; and, if so, how said railroad company has divested itself of its interest in said railway in accordance with said decree.
With respect to the form of the order, it is to be observed that the General Court has no authority to fix a limit of time within which the Attorney-General shall discharge his statutory duty of advising the General Court, or either branch of it. See II Op. Atty.-Gen. 125, 405.
472 OPINIONS OF THE ATTORNEY-GENERAL.
It may be doubted, also, whether the order as framed pre- sents any such question of law as is contemplated by the pro- vision of R. L., c. 7, § 7, that the Attorney-General "shall give his opinion upon questions of law submitted to him by the governor and council or by either branch of the general court," inasmuch as no sufficient facts are presented to raise any ques- tion of law; and the order apparently contemplates not so much a determination of a question of law as an investigation into existing facts and a report thereon. Inasmuch, however, as it appears that certain facts with respect to the action of the New York, New Haven & Hartford Railroad Company in the premises have been presented to the Board of Railroad Com- missioners in connection with a petition of the Springfield Street Railway Company and the Western Massachusetts Street Rail- way Company and a petition of the Uxbridge & Blackstone Street Railway Company and the Worcester & Blackstone Valley Street Railway Company for the approval by such Board of proposed consolidations of the companies joining in each of the respective petitions, upon which such Board has officially acted, and the same facts were submitted to certain individual members of the Committee on Railroads at the ses- sion preceding that at which the order above quoted was adopted, in connection with the passage of St. 1910, c. 601, au- thorizing the New York, New Haven & Hartford Railroad Company to acquire, purchase, hold and own the whole, or any part not less than half, of the capital stock of the Berk- shire Street Railway Company, it may fairly be presumed that such facts were known to the General Court. I shall, there- fore, assume that the question of law intended to be submitted by the order of the General Court was, in substance, whether or not the acts of the New York, New Haven & Hartford Rail- road Company as presented to the Board of Railroad Commis- sioners constitute a proper compliance with the terms of the decree of June 23, 1908, referred to in said order.
The history of the litigation between the Commonwealth and the New York, New Haven & Hartford Railroad Company is fully discussed in the reports of my predecessor to the General
JAMES M. SAVIFT, ATTORNEY-GENERAL. 473
Court for the years 1907 (p. xiii.) and 1908 (p. xv.). The *1 decree referred to was rendered upon an information in equity brought by the Attorney-General under the provisions of St, 1906, c. 372, in substance alleging that the New York, New Haven & Hartford Railroad Company, a corporation duly or- ganized under the laws of this Commonwealth for the purpose, among others, of owning and operating a railroad therein, had directly and indirectly subscribed for, taken and held the stock and bonds and had guaranteed the bonds and dividends and was then directly and indirectly holding the stock and bonds and was guaranteeing the bonds and dividends of certain street railway companies incorporated under the laws of this Common- wealth, to wit, the Worcester & Southbridge Street Railway Company, the Worcester & Blackstone Valley Street Railway Company, the Worcester & Webster Street Railway Company, the Webster & Dudley Street Railway Company, the Berkshire Street Railway Company and the Springfield Street Railway Company, and that the stock and bonds held and the bonds and dividends guaranteed by said railroad company were so held and guaranteed without authority from the General Court, or any law thereof, and that the New York, New Haven & Hartford Railroad Company, by reason of the acts described, had assumed and exercised and was assuming and exercising a franchise and privilege and had transacted and was transact- ing a kind of business not authorized by its charter or by the laws of this Commonwealth, to wit, the franchise and privilege of acquiring, taking and holding the stock and bonds of such domestic street railway corporations and of guaranteeing the bonds and dividends of said corporations and of owning and operating said street railway corporations and the business of acquiring or purchasing said stock and bonds and of guarantee- ing said bonds and dividends, and of owning and operating street railway corporations, in violation of law and to the preju- dice and damage of the Commonwealth. The petition then concludes —
Wherefore, the Attorney-General prays the consideration of tliis court in the premises, and that a wTit of injunction issue restraining said New
474 OPINIONS OF THE ATTORNEY-GENERAL.
York, New Haven & Hartford Eailroad Company from the further use and enjoyment of said franchise and privilege and from the further prose- cution of the said business, and for such other reUef in the premises as equity and justice may require.
The decree, so far as it is material to the question now pre- sented, is as follows : —
It is ordered, adjudged and decreed as follows: — The defendant is, and its officers, directors, attorneys, agents and employees, respectively and collectively, are hereby enjoined and re- strained : —
1. From subscribing for or taking, directly or indirectlj'-, the capital stock of the Worcester & Southbridge Street Railway Company, the Worcester & Blackstone Valley Street Railway Company, the Worcester & Webster Street Railway Company, the Webster & Dudley Street Railway Company, the Berkshire Street Railway Company and the Springfield Street Railway Company, or either of them, all being street railway corporations incorporated under mnd by virtue of the laws of this Commonwealth, and mentioned in the information.
2. From assuming or exercising the franchise or privilege of subscribing for, or taking, directly or indirectly, the stock of said street railway cor- porations, or either of them.
3. From holding, directly or indirectly, the stock of said street railway corporations, or either of them, after the first day of July, in the year 1909.
4. From assuming or exercising the franchise or privilege of holding, directly or indirectly, the stock of said street railway corporations, or either of them, after the first day of July, in the year 1909.
Provided, however, That nothing herein contained shall affect existing leases executed in accordance with the provisions of chapter 293 of the Acts of the year 1901 of this Commonwealth.
From this decree the defendant appealed, and the decree was finally affirmed in Attorney-General v. New York, New Haven & Hartford Railroad Co., 201 Mass. 370.
The state of facts to which this decree was applicable arose as follows: the New York, New Haven & Hartford Railroad Company, a consolidated corporation created by the concur- rent legislation of the State of Connecticut and the Common- wealth of Massachusetts, acquired in the years 1903 and 1904 all the shares of stock of the Worcester & Connecticut Eastern
JAMES M. SWIFT, ATTORNEY-GENERAL. 475
Railway Company, which by appropriate legisLition in the State of Connecticut became, in part at least, a holding corporation under the name of Consolidated Railway Company of Connecti- cut. The Consolidated Railway Company of Connecticut in turn acquired all or a majority of the stock of the domestic street railway corporations named in the information of the Attorney-General, except the Springfield Street Railway Com- pany, of which substantially all of the stock was acquired by a voluntary association known as the Springfield Railway Com- panies, created for that purpose and controlled by the Con- solidated Railway Company of Connecticut. The attention of the Legislature of 1905 having been directed to the situation so created with respect to the ownership of the stock in do- mestic street railways, and being advised by the then Attorney- General that the ownership and control of the capital stock of street railway companies incorporated in iNIassachusetts by the New York, New Haven & Hartford Railroad Company or the Consolidated Railway Company of Connecticut was illegal (see n Op. Atty.-Gen. 570), an inquiry into the facts relative to such acquisition was begun, but no definite action was taken thereon. In the Legislature of the following year the discus- sion was renewed; a bill entitled "An Act relative to invest- ments by railroad corporations in street railway companies" was introduced but not finally adopted, and St. 1906, c. 372, which authorized the Attorney-General to proceed by an in- formation in equity against any corporation which assumed or exercised a franchise or transacted a business not authorized by the laws of the Commonwealth, and under which the in- formation in the present case was brought, was enacted. On June 26, 1906, before the conclusion of the session of the Legis- lature for that year, the Consolidated Railway Company of Connecticut sold and conveyed to the New England Livest- ment and Security Company, a voluntary association, all of the stock, bonds and other securities held by it in the Worces- ter & Southbridge Street Railway Company, the Worcester & Blackstone Valley Street Railway Company and the Berk- shire Street Railway Company, and 102 shares of stock in the
476 OPINIONS OF THE ATTORNEY-GENERAL.
Springfield Street Railway Company, and also sold and con- veyed to said company all of its interest in the Springfield Railway Companies, which then held 19,253 shares of the stock of the Springfield Street Railway Company, which, with the 102 shares already referred to, were substantially all of the shares of said stock. In 1907, under authority of an act of the Connecticut Legislature (House Joint Resolution No. 357) the New York, New Haven & Hartford Railroad Company was merged into the Consolidated Railway Company of Connecticut, and the consolidated corporation, by a later statute, became the New York, New Haven & Hartford Railroad Company. So far as I am aware the situation so established continued un- changed until May 8, 1908, when the opinion in the case of Attorney-General v. Neiv York, New Haven & Hartford Railroad Co., 198 Mass. 413, was handed down. In that decision the court held, in substance, that the Consolidated Railway Com- pany of Connecticut and the two voluntary associations, the Springfield Railway Companies and the New England Invest- ment and Security Company, were all instrumentalities of the New York, New Haven & Hartford Railroad Company through which such corporation acquired and owned and used the prop- erty of the domestic street railway corporations named in the information, "with as complete control as it has over its loco- motive engines," in violation of the provision of St. 1906, c. 463, Part II., § 57, that —
A railroad corporation, unless authorized by the general court or by the provisions of the following five sections, shaU not directly or indirectly subscribe for, take or hold the stock or bonds of or guarantee the bonds or dividends of any other corporation.
The court further stated, on page 431, that —
From the findings and evidence in the very voluminous report of the master, and notably from the testimony of Mr. Mellen, the president of the voluntary associations, and the corporations, and of Hamaer, the secretary and comptroller of the New England Investment and Security Company, it is plain that all the street railway companies mentioned in the information are indirectly held and controlled and managed in the
JAMES M. SWIFT, ATTORNEY-GENERAL. 47'
interest of the defendant as absolutely and completely as it holds and manages its hne of railroad between Springfield and New York.
It thus appeared that the precise situation to which the de- cree above quoted was directed was an indirect and illegal con- trol by the New York, New Haven & Hartford Railroad Com- pany of the stock, bonds and other securities of the specified domestic street railway corporations, effected through an owner- ship by the New York, New Haven & Hartford Railroad Com- pany of all of the stock of the Consolidated Railway Company of Connecticut, which, in turn, controlled the Springfield Rail- way Companies and the New England Investment and Security Company, which held the legal title to the stock, bonds and other securities of such domestic street railway corporations.
The decree in terms enjoins and restrains the defendant, and its ofiicers, directors, attorneys, agents and employees, in two respects, — first, from subscribing for or taking either directly or indirectly, and from assuming to exercise the franchise or privilege of subscribing for or taking directly or indirectly, the stock of the street railways included within its provisions; and second, from holding directly or indirectly, and from assuming the franchise or privilege of holding directly or indirectly, such stock. Briefly stated, those enjoined must not, either directly or indirectly, acquire or hold such stock. It is unnecessary to determine what should be deemed to constitute a direct acquisi- tion or holding of the stock by the New York, New Haven & Hartford Railroad Company or its officers, directors, attorneys, agents and employees, since upon the facts in evidence the court failed to find that the acquisition and holding were direct in the first instance. With respect to an indirect subscription for and taking of such stock subsequent to the date of the decree no question appears to have been raised, and therefore the sole inquiry presente'd for my determination is whether or not that corporation has ceased to indirectly hold or control the stock of the Springfield Street Railway Company, the corporation named in the order of the General Court.
In Attorney-General v. Neiv York, New Haven & Hartford
478 OPINIONS OF THE ATTORNEY-GENERAL.
Railroad Co., 198 Mass. 413, the court, at page 426, has defined the words "subscribed for, take or hold" in St. 1906, c. 463, Part II., § 57, as —
intended to include legal ownership of every kind. The word "indi- rectly" covers other modes of holding than by taking or holding the legal title. The words together cover every kind of proprietary interest in the stock or bonds referred to. It is immaterial how or where the legal title is held directly, if, indirectly, the railroad corporation is the equitable or beneficial owner of it. What the Legislature was seeking to prevent was influence in the management of the subordinate corpora- tion by the other corporation, however exercised, and whether extending to absolute control or falling short of it. With this in view, language was used in the statute to include every kind of beneficial ownership, however indirectly held.
The situation with respect to the indirect holding of the stock by the New York, New Haven & Hartford Railroad Com- pany was described at length by the court, at pages 426-431 : —
The master's summary of facts and the other findings that appear in the report show how completely the defendant controls the street rail- ways in question. The capital stock of all of them but the Springfield Street Railway Company was bought and held by the Consolidated Rail- way Company, all of whose stock is held by the defendant, and all of whose directors are the defendant's directors. If we assume that this corporation was legally organized and is legally maintained, so as to haA'e a separate corporate existence, it is in reality a piece of legal machinery owned and operated by the defendant. Through this the defendant acquires and owns and uses property with as complete control as it has over its locomotive engines. If it does tliis indirectly, it does it as effectively as if the ownership were direct. Through the direct purchase and owTier- ship of the street railway corporations, by its creature, the Consohdated Railway Company, the defendant transgressed the law as to aU the street railway companies mentioned in the information, except the Springfield Street Railway Company, and is still transgressing in the same way as to the Worcester & Webster Street Railway Company and the Webster & Dudley Street Railway Company, whose ownership is retained in the same fomi. Some of these street railway companies have been dealt with directly by the defendant, at different times, by votes of its directors while acting in that capacity The defendant's president is the president of the Consolidated Railway Company and of all these street railway
JAMES M. SWIFT, ATTORNEY-GENERAL. 479
companies, and he receives no compensation for the perfonnance of these official duties, except his salary as president of the defendant corporation. The stock of the Springfield Street Railway Company was acquired tlii'ough action of the Consolidated Railway Company, whose directors voted that it "should be acquired by this company, and that the plan for pajTiient of the same, outlined by the president be approved, namely the estabhshnient of a trust covering the issue of S3,000,000 guaranteed trust certificates, and the sum of SI, 500,000 of 4 per cent, debentures of this company." Here was the origin of the Springfield Railway Com- panies, which was established by the Consolidated Railway Company as a part of a scheme for holding and controlling the stock of the Springfield Street Railway Company. This is a voluntaiy association, consisting of a board of trustees, of whom all but one are directors of the Consolidated Railway Company and of the defendant corporation, who are designated as trustees in the declaration of trust, together with the members of the firm of Lee, Higginson and Company of Boston, bankers, who are called subscribers. Under the instrument the trustees assume no personal jfinancial hability and have no beneficial ownership, although they are the holders of the legal title to all the property belonging to the association, and are the managers of it. Lee, Higginson and Company are parties for the purpose of disposing of preferred shares to be issued by the associa- tion, and managing other matters of finance. As a part of the arrange- ment, the Consolidated Railway Company entered into a contract with Lee, Higginson and Company which, after the formal part, began with a recital as follows: "Whereas, the Consolidated Railway Company desires to acquire the whole or at least a majority of the capital stock of the Springfield Street Railway Company, and desires Lee, Higginson and Com- pany to offer to the stockholders of said company S225 in cash per share, or $75 in cash per share and $150 in preferred stock of the Springfield Railway Companies issued under a declaration of trust, dated March 15, 1905," etc. It was then agieed that the Consolidated Railway Company should sell its 4 per cent, fifty-year debentures to the amount of $1,500,000 and Lee, Higginson and Company should buy not exceeding that amount of these debentures at a price named, and should underwTite not exceeding $2,937,600 an amount of the preferred shares of the Springfield Railway Companies at $100 per share. Then followed this recital, "which sale of bonds, with cash to be paid by the Consolidated Railway Company, and underwriting, will furnish the funds necessary for the purchase of said street railway stock at the price agreed upon," etc. It was then agreed that the Consolidated Railway Company should forthwith issue, sell and deliver to Lee, Higginson and Company, the debentures, and that there should be "formed a holding trust to be called the Springfield Rail- way Companies ... to acquire and hold the whole or at least a majority
480 OPINIONS OF THE ATTORNEY-GENERAL.
of the capital stock of the Springfield Street Railway Company; which said trust shall issue at this time not exceeding $2,937,600 of preferred shares, which shall be entitled to cumulative di^ddends at the rate of 4 per cent, per annum, payable," etc., — "and in case of hquidation, pay- ment of the principal of said preferred shares at the rate of SI 05 per share, to be guaranteed by the Consolidated Railway Company, and to be subject to call on any dividend date at the rate of $105 per share, as provided in the agreement of said Consolidated Railway Company with the Springfield Railway Companies," etc. There was a provision that Lee, Higginson and Company should underwrite at par so many of the preferred shares as should be necessary to acquire the whole, or at least a majority of the stock of the Springfield Street Railway Company at the price stated. There was then a provision for an underwriting commission to be given to Lee, Higginson and Company in full payment for their services. The expenses of forming the trust and of carrying out the terms of the agree- ment were to be paid by the Consohdated Railway Company. Under this arrangement the stock of the Springfield Street Railway Company was acquired and turned over to the association, which consisted of the trustees, with no financial interest, and the Consolidated Railway Com- pany, which was then the beneficial owner of all the property. The com- mon shares in the Springfield Railway Companies to the amount of $5,000,- 000, were to be delivered to the Consolidated Railway Company as soon as a majority of the stock of the Springfield Street Railway Company should be acquired. The proceeds of aU the prefeiTed shares were to be accounted for to the Consolidated Railway Company by Lee, Higginson and Company. The trust, including the accompanying contracts, was sun- ply a machine, consti-ucted for the management of the property and the business in the interest of the Consolidated Railway Company, which was the interest of the defendant corporation. As to sales made by Lee, Higginson and Company to third persons, and as to the underwTiting of Lee, Higginson and Company if that be deemed a purchase by them of the preferred shares, the Consohdated Railway Company is still indirectly the owner of the shares, or at least of an interest in them. The Spring- field Railway Companies is not a corporation, although the parties, by their contract, sought to obtain many of the advantages of a corporation without its liabilities. See Hussey v. Arnold, 185 Mass. 202. All who have any proprietary interest in it have rights of property as individual o^\'ners, subject to such restraints upon the management and use of it as are legally imposed by the contracts under which it is held. They are equitable tenants in common. By the terms of the agreement the association must be wound up and liquidated at the end of twenty years and eleven months. If there are profits from the enterprise, the Consolidated Railway Company will be entitled to the whole of them. It held all the common shares,
JAMES M. SWIFT, ATTORNEY-GENERAL. 481
although it has since turned them over to the New England Investment and Security Company. The other holders of the prefeiTed shares can receive only $105 per share as principal, with interest at 4 per cent. Any proceeds beyond that amount will go to the Consohdated Railway Com- pany. If there is not enough in the property to pay that, the Consolidated Railway Company must make up the deficiency; for it guaranteed this amount to all of the preferred shares on hquidation. It can at any time wind up the association; for by its contract it has retained a right to call and redeem all the preferred shares on any dividend date at $105 per share. The case is like that of an association that issues mortgage bonds to be redeemed at $105 at maturity, with a right to call and redeem them at any earher time at the same rate. In such a case the bondholders have merely made a loan. The real beneficial owners of the property are those who have agreed to pay the loan whereby the property will be redeemed. The transfer of certificates to purchasers of prcfen-ed shares is in the nature of a pledge. It seems plain that the Consolidated Railway Com- pany is indu'ectly the holder and owner of everj^thing belonging to the Springfield Railway Companies, subject to its relations to the New Eng- land Investment and Secm-ity Company to which we shall refer hereafter. As the defendant owns all the stock of the Consolidated Railway Com- pany, it is indirectly the holder and owner of the 19,253 preferred shares of the Springfield Street Railway Company in the hands of the trustees of the Springfield Railway Companies, as well as of the right to redeem the preferred shares in the hands of purchasers.
The New England Investment and Security Company is a voluntary association similar to the Springfield Railway Companies, although in terms it is of broader scope as to the property that may be owned and the i business that may be transacted. The declaration of trust by which it was created was signed by seven of the directors of the Consolidated Railway Company and of the defendant corporation, who were designated as the trustees, and by the Consohdated Railway Company, and by a member of the firm of Mackay and Company, bankers, who contracted to sell the preferred shares, and by an assistant of the president of the numer- ous corporations and the associations, who are designated together as subscribers. The trustees have no financial interest and are under no financial habiUty in regard to the property or business, but they hold the legal title and act as managers, under the name of the New England In- vestment and Security Company. They issued preferred shares and common shares which represent the o\ATiership m the property and busi- ness of the association. The prefcn-ed shares are guaranteed by the Consohdated Railway Company, principal and interest, as the shares of the Springfield Railway Companies are, and are subject to call in the same way, and are to be redeemed at $105 per share when called, or when the
482 OPINIONS OF THE ATTOKNEY-GENERAL.
affairs of the association are liquidated. This guaranty was made at the request of the defendant corporation, which in turn guaranteed the Con- sohdated Railway Company against loss from its guaranty. The Con- sohdated Railway Company sold to the New England Investment and Security Company all the stocks and bonds which it held of the Worcester & Southbridge Street Railway Company, the Worcester & Blackstone Valley Street Railway Company, the Worcester Railway and Investment Company, the Spruigfield Street Railway Company and the Springfield Railway Companies, for the sum of $10,000,000, which was paid by the promissory note of the New England Investment and Security Company, and it guaranteed the preferred shares of this company to the amount of $10,000,000, at the request of the defendant corporation. The contract under which the shares were issued and the guaranty was made, was signed only by the New England Investment and Security Company, the Consohdated Railway Company and the New York, New Haven & Hartford Railroad Company. In the last analysis, in view of the owTier- ship of one corporation by the other, the only party that had any interest in the matters covered by the contract was the defendant corporation. There was a contract with Mackay and Company for the sale of these shares, but they were all held by Mackay and Company for the benefit of the Consohdated Railway Company. At the time of the hearing there were 66,137 prefen-ed shares held by Mackay and Company and owned by the Railway Company. So far as relates to the questions with which we are now concerned, there is no substantial difference between the two voluntary associations. In each the equitable ownership is in the Con- sohdated Railway Company which is entitled ultimately to the profits from the management, if there are profits, on hquidation, and which must make good the loss to the preferred shareholders if there is a deficiency.
So far as affects the relations of the Consolidated Railway Company with the New York, New Haven & Hartford Railroad Company, the only change in the situation dealt with by the court in its opinion above quoted appears to be that occasioned by the merger of the latter company into the former company, which has already been referred to.
Since, under the laws of Connecticut, the two corporations mentioned have been merged into a single consolidated corpora- tion novV known as the New York, New Haven & Hartford Railroad Company, that corporation, in order to bring into ex- istence the conditions which w^ill constitute "a performance of its duty to cease to hold or control either directly or indirectly
JAMES M. SWIFT, ATTORNEY-GENERAL. 483
the stocks referred to in the information" (Attorney-General v. Neiv York, New Haven & Hartford Railroad Co., 201 Mass. 370, 372), must divest itself of such holding or control, either by disposing of all interest in the two voluntary associations or by disposing of the stock of the street railway companies by a bona fide sale or transfer. I am advised that the New York, New Haven & Hartford Railroad Company has chosen the former method, and has taken action to divest itself of all inter- est in or control over the New England Investment and Security Company, which, since June 26, 1906, has owned all of the stock of the Springfield Railway Companies, which in turn held substantially all of the shares of stock of the Springfield Street Railway Company. This action is reported to me to be as fol- lows: at the time of the decree most of the trustees and officers of the New England Investment and Security Company were also directors and ofiicers of both the New York, New Haven & Hartford Railroad Company and of the Consolidated Railway Company of Connecticut. The present officers of the New England Investment and Security Company are not corporate officers or directors of the consolidated corporation known as the New York, New Haven & Hartford Railroad Company. In addition, the following action, as reported to me, has been taken by the New York, New Haven & Hartford Railroad Com- pany to divest itself of the indirect ownership and control of the stock of the several street railway companies named in the decree : —
1. The New Haven Company surrendered all the common shares of the New England Investment and Secm-ity Company issued to it except 1,000. It has sun-endered, also, all the right originally reserved to it, when it surrendered such common shares, to again demand their issue to it. It has also sun-endered all right to demand the issue to it of any additional common shares.
2. It has sold, without reservation or option of any kind, the 1,000 outstanding common shares. The purchasers thereof have paid for the same and hold the same with an absolute title.
3. It has assigned and transferred to the New England Investment and Security Company all its originally reserved right to call for redemp- tion the preferred shares of the Springfield Railway Companies.
484 OPINIONS OF THE ATTORNEY-GENERAL.
4. It has assigned to the trustees for the tune being deemed to repre- sent the common shareholders of the New England Investment and Secm-ity Company, all its originally resei-ved right to call for redemption the preferred shares of the New England Investment and Secm-ity Com- pany, and that right is now held by the trustees, deemed to be appointed for the common shareholders, to be exercised by such trustees only for the benefit of the holders of such common shares.
5. It has accepted in heu of its demand claim against the New England Investment and Security Company, fifteen-year notes, unsecured except by covenants of the Investment Company not to dispose of its existing assets without substituting other assets deemed by the trustees to be of equivalent value, and not to pledge or encumber its assets without equally securing by the instrument of pledge or mortgage the fifteen-year notes issued by the Investment Company.
6. Although advised that it was under no obligation so to do, the New York, New Haven & Hartford Railroad Company has contracted for the sale of all the fifteen-year notes so taken by it in pajonent of its demand claim against the New England Investment and Security Company.
7. It has sold to the New England Investment and Security Company aU the bonds and promissory notes which it held of any of the street rail- way companies mentioned in the information excepting the "Worcester & Webster and Webster & Dudley companies, the disposition of which is next hereinafter described.
8. The New York, New Haven & Hartford Raihoad Company has sold and transferred to the New England Investment and Security Com- pany all the stock, bonds, certificates of indebtedness and other obUga- tions of every kind which it held of the Worcester & Webster and Webster & Dudley Street Railway companies, except only such as had, prior to the beginning of the suit by the Attorney-General against the New York, New Haven & Hartford Raikoad, or by its predecessors in title, been pledged to the New York Security and Trust Company of New York, as trustee under the mortgage from the Worcester & Connecticut Eastern Railway Company, as collateral security for an issue of mortgage bonds by said last-named railway company, and as tp the reversion or equity of redemption in all stock, bonds and other obhgations of said Worcester & Webster and Webster & Dudley Street Railway companies so pledged, said New York, New Haven & Hartford Raihoad Company has executed a transfer and assignment of all its right therein, subject only to the lien of the trustee under said mortgage.
The result of this action upon the part of the New York, New Haven & Hartford Railroad Company, as disclosed in the evi- dence submitted to me and contained in the official declaration
JAMES M. SWIFT, ATTORNEY-GENERAL. l.-^O
and statement of the corporation made to the House of Repre- sentatives for the year 1909 (House Document 1329), and in the absence of any question as to the good faith of said cor- poration, is to place the stock of the several street railway com- panies mentioned in the decree in the ownership or control of the New England Investment and Security Company, whose trustees and officers are not connected as officers or directors with the New York, New Haven & Hartford Railroad Company and have entered into no agreement, trust or other undertaking with such corporation with respect to their acts as officers or trustees of the New England Investment and Security Com- pany; and to terminate the ownership by the New York, New Haven & Hartford Railroad Company of any shares of the stock of the New England Investment and Security Company, either by surrendering such stock to the association itself or by transferring it to individuals, free of all trusts and under no agreement or undertaking upon the part of the individuals to whom it was transferred. (See House Document 1329, pp. 4,
5.)
Upon the information before me, therefore, I am of opinion that by divesting itself of all interest in or control over the New England Investment and Security Company, which through the instrumentality of the Springfield Railway Companies owned and controlled the Springfield Street Railway Company, the New York, New Haven & Hartford Railroad Company has complied with the decree of June 23, 1908, and in the manner above described has divested itself of its interest in the Spring- field Street Railway Company.
486
OPINIONS OF THE ATTORNEY-GENERAL.
Constitutional Law — Taxation — Appropriation of Pub- lic Funds — Public Purpose — Relief of Destitute Families of Striking Employees.
A proposed resolve "That there be allowed and paid from the treasury of the commonwealth the sum of ten thousand dollars to be expended ... for the relief of destitute families of employees of the factories at Lawrence, who were thrown out of work by the strike in that city," contemplates an appropria- tion of money raised by taxation for a purpose other than a public purpose, and if passed would be unconstitutional.
On behalf of the House Committee on Rules you have re-
To the House Committee
on Rules. questcd my opinion as to the constitutionality of the following
February 7. , t i r? 'xx
resolve now pending before your committee : —
Resolved, That there be allowed and paid from the treasury of the commonwealth the sum of ten thousand dollars, to be expended under the direction of two persons, citizens of the city of Lawrence, to be ap- pointed by the governor, and to serve without compensation, for the relief of destitute families of employees of the factories at Lawrence who are thrown out of work by the strike in that city. Any expenses necessarily incurred in carrying out the provisions of this resolve shall be paid from the said sum.
The question presented resolves itself into an inquiry as to whether the expenditure of money from the treasury of the Commonwealth, raised by taxation, for the purposes of the re- solve is an expenditure for a public purpose, it being a well- established principle that money raised by taxation may be ex- pended only for a public purpose. See Lowell v. Oliver, 8 Allen, 247; Mead v. Acton, 139 Mass. 341; Kingman v. Brockton, 153 Mass. 255; Opinion of the Justices, 155 Mass. 598; 186 Mass. 603; and 190 Mass. 611. The words "public purpose," in the sense herein used, were held in Lowell v. Boston, 111 Mass. 454, not to include the purpose of an act which provided for the relief of persons wdio had suffered loss by the fire of 1872, using, at page 472, the following language: —
As a judicial question the case is not changed by the magnitude of the calamity which has created the emergency, nor by the gi-eatness of the emergency or the extent and importance of the interests to be pro-
JAMES M. SWIFT, ATTORNEY-GENERAL. 4S<
moted. These are considerations affecting only the propriety and expedi- ency of the expenditure as a legislative question. If the expenditure is, in its nature, such as will justifj^ taxation under any state of circumstances, it belongs to the Legislature exclusively to detennine whether it shall be authorized in the particular case; . . .
On the other hand, if its nature is such as not to justify taxation in any and all cases in wliich the Legislature might see fit to give authority therefor, no stress of circumstances affecting the expediency, importance or general desirableness of the measure, and no concuiTcnce of legislative and municipal action, or preponderance of popular favor in any particular case, vnW supply the element necessary to bring it within the scope of legislative power.
An opinion to the same effect was given by Attorney-General Malone in 1908 with reference to a proposed resolve providing for the expenditure of money for the relief of sufferers from the Chelsea fire.
The present resolve does not appear to have for its purpose an expenditure of money which can be considered a public pur- pose. Both its title and the terms of the resolve provide for aid to be given to certain individuals. The fact that the individ- uals may be many in number does not of itself make the pur- pose a public one. In Loivell v. Boston, above cited, appears the following language : —
The incidental advantage to the pubhc or to the State, which results from the promotion of private interests and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary.
The part of the decision in Mead v. Acton, above cited, also in point is as follows : —
The direct primary object is to benefit individuals, and not the public. In any view we can take of the statute, the pajonents it contemplates are mere gratuities or gifts to individuals. ... A statute conferring such power is unconstitutional, because it authorizes raising money by taxation for the exclusive benefit of particular individuals, and appropriates money for a private purpose which can only be raised and used for public objects. The right to tax is the right to raise money by assessing the citizens for
488
OPINIONS OF THE ATTORNEY-GENERAL.
the support of the government and the use of the State. The term "taxa- tion" imports the raising of money for public use, and excludes the raising of it for private uses.
In my opinion the resolve submitted is clearly within the principles and decisions hereinbefore referred to, and would pro- vide for an unconstitutional appropriation of public funds.
To the Adjutant General. 1912 February 7.
Sheriff — Right to require Assistance in Case of Actual OR Impending Riot, Tumult or Other Breach of the Peace — Citizen — Militia — Precept.
Where there is imminent, impending danger of a riot or other breach of the peace, the sheriff of any county may call such aid as a man of ordinary prudence, firmness and activity in such situation might think necessary to quell such riot or disturbance; or where a tumult, riot or mob actually exists or is threatened he may, under the provisions of St. 1908, c. 604, § 142, issue a precept directing any commander of a brigade, regiment, battalion, corps of cadets or company within his jurisdiction "to appear at a time and place therein specified, to aid the civil authority in suppressing such violence and supporting the laws."
If, however, no riot or other breach of the peace actually exists or is threatened, a sheriff has no authority to call upon citizens to act as patrolmen or to do ordinary poUce duty.
You have requested my opinion as to whether the Sheriff of Essex County can be required to establish patrols and police guards in the city of Lawrence to take the place of and to per- form the duties of the regular city police, the latter being un- able to preserve the peace. I am informed, and for the pur- poses of this opinion assume, that there are no riots at present in the city, and that troops are stationed there against such a contingency. It is also stated that it is your desire to with- draw the militia from the city as soon as possible, consistent with the proper preservation of the peace and suppression of attempts to violate the law of the Commonwealth.
The office of sheriff is one of the oldest known to the law, and from earliest times he has been the chief officer for the preserva- tion of the peace in his county. By R. L., c. 23, § 14, it is provided : —
JAMES M. SWIFT, ATTORNEY-GENERAL. 4S9
They [sheriffs] may require suitable aid m the execution of their office in a criminal case, in the preservation of the peace, in the apprehending or securing of a person for a breach of the peace and in cases of escape or rescue of persons arrested upon ci\dl process.
The first use of the phrase "suitable aid" as above employed appears in chapter 20 of the Acts of the Province of Massachu- setts Bay in the year 1698. The phrase should be construed, therefore, as giving the same authority as that of a sheriff un- der the common law, in the light of which it is to be inter- preted unless otherwise modified by statute. Consideration of the decisions in that regard discloses in each case a situation where the breach of the peace was actually in progress, or where there had been an outbreak just previously, with an- other disturbance expected and imminent as a reasonable cer- tainty. I am led to the conclusion that in order to furnish cause for the sheriff to exercise this extraordinary remedy under his common law authority, there must be a necessity for it be- cause of disorders either existing at the time of his action or imminently threatened, with apparent certainty to occur. In the exercise of this function the sheriff apparently acts in a quasi-judicial capacity, and his determination, so long as exer- cised within the reasonable scope of his authority, cannot be questioned. Ela v. Smith, 5 Gray, 121.
In addition to R. L., c. 23, § 14, hereinbefore cited, R. L., c. 211, § 1, further provides: —
If twelve or more persons, being armed with clubs or other dangerous weapons, or if thirty or more persons, whether armed or not, are unlaw- fully, riotously or tumultuously assembled in a city or town, the mayor and each of the aldermen of such city, each of the selectmen of such town, every justice of the peace living in any such city or to^\'n and the sheriff of the county and his deputies shall go among the persons so assem- bled, or as near to them as may be with safety, and in the name of the commonwealth command all persons so assembled immediately and peace- ably to disperse; and if they do not thereupon immediately and peaceably disperse, each of said magistrates and officers shall command the assist- ance of all persons there present in suppressing such riot or unlawful assembly and arresting such persons.
490 OPINIONS OF THE ATTORNEY-GENERAL.
As there is no riot in progress, upon the assumption in your inquiry, the situation is not within the scope of this section.
In answer to the specific inquiry, therefore, I am of the opinion that unless a riot or other breach of the peace actually exists, or there is immediate, impending danger thereof, the sheriff has no power to call citizens from their own pursuits to act as patrolmen or to do police duty; that is, to perform the ordinary duties that are performed by police patrolmen of the city of Lawrence. On the other hand, if there is imminent, impending danger of a riot or other breach of the peace the sheriff has the power and the duty to call such aid as a man of ordinary prudence, firmness and activity in his situation would think necessary to quell the disturbance. In case of threatened riot our statutes provide a method in which he may proceed, namely, to call upon the organized militia by precept issued to its commander, under St. 1908, c. 604, § 142, which provides as follows : —
In case of a tumult, riot, mob, or a body of men acting together by force, to violate or resist the laws of the conmaonwealth, or when such tumult, riot or mob is threatened, and the fact appears to the commander- in-chief, to the sheriff of the county, to the may9r of the city or the select- men of the town, the commander-in-chief may issue liis order, or such sheriff, mayor or selectmen may issue a precept, directed to any com- mander of a brigade, regiment, battaUon, corps of cadets or company, within their jurisdiction, directing him to order his command, or a part thereof, to appear at a time and place therein specified, to aid the ci\'il authority hi suppressing such violence and supporting the laws; which precept shall be in substance as follows: —
Commonwealth of Massachusetts.
To [insert the officer's title] A.B., commanding [insert his command].
Whereas, it appears to [the sheriff, mayor or the selectmen] of the [county, city or town] of , that [here state one or more of the causes above mentioned]
in our of , and that military force is necessary to aid the civil
authority in suppressing the same: Now, therefore, we command you that you cause [your command, or such part thereof as may be desired], armed and equipped vvith ammunition and with proper officers, to parade at , on ,
then and there to obey such orders as may be given according to law. Hereof fail not at your peril, and have you there this precept with your doings returned thereon.
i
JAMES M. SWIFT, ATTORNEY-GENERAL. 491
This precept shall be signed by such sheriff, mayor or select- men, and may be varied to suit the circumstances of the case; and a copy of the same shall be immediately forwarded to the commander-in-chief.
From this section the power of the sheriff and that of the mayor appear to be the same. While this means may not be the exclusive means to be employed under such circumstances, nevertheless, in case of emergency it would be proper under this authority for the sheriff to call upon the mihtia to aid him in the execution of the duties of his office. It would appear, therefore, that the militia might be called upon by the sheriff rather than to be relieved by him by means of other persons summoned to take the place of the militia. This action would largely be left to the discretion and judgment of the sheriff, under the circumstances as they might appear.
Constitutional Law^ — Police Power — Regulation of Private Business — Sale of Theatre Tickets.
The right of the Legislature under the police power to regulate the conduct of a private business in respect to public safety or morals does not extend to the regulation of the sale of tickets of admission to theatres and other places of amusement; and a proposed bill requiring that such tickets shall have the price printed thereon and that it shall be unlawful to sell or offer for sale any such ticket for an amount in excess of the printed sum, if passed, would be unconstitutional and void.
On behalf of the Committee on the Judiciary you have re- to the House
• • • • !• r TT Tt'U Conimittco on
quested my opinion upon the constitutionality oi Mouse liill the Judiciary. No. 967. This bill in substance provides that every ticket for February is. admission to a theatre, opera house, concert hall or other place of public exhibition or amusement shall have printed upon its face the price thereof; that no greater sum shall be asked or received therefor; and that it shall be unlawful for any person, firm or corporation to sell or offer for sale any such ticket for a sum in excess of that printed thereon.
Statutes of this character have been considered by the courts of California (Ex parte Quarg, 149 Cal. 79) and of Illinois (People v. Steele, 231 111. 340), and have been held unconsti-
492
OPINIONS OF THE ATTORNEY-GENERAL.
tutional for the reason that the business of conducting a theatre or other place of amusement is a private business, and while such business may be regulated by the Legislature in respect to public morals or safety, under the police power, the right of regulation cannot be extended to the sale of tickets of admission to places of amusement. Thus, in Ex parte Quarg, above cited the court said, at page 81 : —
The police power is broad in its scope, but it is subject to the just limitation that it extends only to such measures as are reasonable in their application and which tend in some appreciable degree to promote, protect or preserve the public health, morals or safety, or the general welfare. The prohibition of an act which the court can clearly see has no tendency to affect, injure or endanger the public in any of these particulars, and which is entirely innocent in character, is an act beyond the pale of this hmitation, and it is therefore not a legitimate exercise of police power. The sale of a theatre ticket at an advance upon the original purchase price. or the business of reseUing such tickets at a profit, is no more immoral, or injurious to pubUc welfare or convenience, than is the sale of any ordinary article of merchandise at a profit.
I have no doubt that the principles so declared are applicable to the question now before me, and I am therefore of opinion that, if passed, House Bill No. 967 wou|d be unconstitutional and void.
To the Chief of the Dis- trict Police.
1912 February 15.
Massachusetts District Police — Chief — Boiler Inspec- tion Department — Chief Inspector.
St. 1906, c. 521, entitled "An Act to provide for the appointment of a chief inspector of the boiler inspection department of the District Police," which provides in section 1, in part, that "said chief inspector shall have supervision over the members of said boiler inspection department in order to secure the uniform enforcement throughout the commonwealth of all acts relative to the inspection of boilers and the examination of engineers and firemen," does not create an independent department, and the action of such chief inspector is under the jurisdiction and subject to the orders of the Chief of the District Police.
Under section 1 of chapter 521 of the Acts of 1906, an act to provide for the appointment of a chief inspector of the boiler inspection department of the District Police, providing, in
JAMES M. SWIFT, ATTORNEY-GENERAL. 493
part, as follows: "Said chief inspector shall have supervision over the members of said boiler inspection department in order to secure the uniform enforcement throughout the common- wealth of all acts relative to the inspection of boilers and the examination of engineers and firemen," you have made the following request for my opinion : —
To what extent has the chief of the District Police authority over said chief inspector and members of this branch of the inspection department of the District Police? That is to say: —
First. — Has the chief inspector authority to detail any or all of the boiler inspectors for duty in any district of the Commonwealth without obtaining permission from the Chief of the District Police?
Second. — Has the chief inspector the authority to order such inspectors, or any of them, from their districts to any other part of the Commonwealth without obtaining permission from the Chief of the District Police?
Third. — How far does the authority of the Chief of the District Police extend over the duties, disciphne and general conduct of the chief in- spector and inspectors of boilers?
You also further inquire as to whether "there exists a depart- ment know^n as the 'boiler inspection department' ".
In my opinion there is no provision of law which establishes as a superior, independent department outside of the authority of the Chief of the District Police a "boiler inspection depart- ment."
By section 1 of chapter 108 of the Revised Laws the District Police force is divided into two departments, to wit: the inspec- tion department and the detective department. The boiler in- spectors are appointed from the inspection department of the District Police. In my opinion the action of the chief inspector of the boiler inspection department, so called, is under the jurisdiction and subject to the orders of a superior, the Chief of the District Police.
Answering your questions specifically : —
The first should be answered in the negative, that is, the de- tails made by the chief inspector would be subject to the ap- proval or disapproval of the Chief of the District Police.
As to the second, the same answer should be made.
494
OPINIONS OF THE ATTOKNEY-GENERAL.
As to the third, I am of the opinion that the authority of the Chief of the District Police is the same over the chief boiler in- spector as it is over the heads of the other divisions of the de- partment, that is, that he is the superior oflficer over all.
Commonwealth — Employee — Veteran
Consent.
Retirement —
To the Chief of! the Dis- trict Police.
1912 February 16.
St. 1907, c. 458, § 1, providing that, with the consent of the Governor, a veteran of the civil war in the service of the Commonwealth, if incapacitated for active duty, may be retired at one-half the rate of compensation paid to him when in active service, was designed not only to provide a pension for the person so retired, but also to relieve the public service of persons unable to perform the duties required of them, and if incapacitated for duty a veteran may be so retired without his consent and upon the request and recommenda- tion of the head of the department in which he is employed.
By a communication dated February 12 you have requested my opinion upon the question whether, under the provisions of St. 1907, c. 458, § 1, you are authorized to request and recom- mend the retirement of any veteran employed in the depart- ment who in your opinion is incapacitated to such a degree as to render his retirement necessary for the good of the service, irrespective of his desire to so retire. '
The statute to which you have referred is as follows : —
A veteran of the civil war in the service of the conmionwealth, if incapac- itated for active duty, shall be retired from active service, with the consent of the governor, at one half the rate of compensation paid to him when in active service, to be paid out of the treasury of the commonwealth: pro- vided, that no veteran shall be entitled to be retired under the provisions of this act unless he shall have been in the ser\'ice of the commonwealth at least ten j^ears. But if, in the opinion of the governor and council, any veteran of the civil war in said service is incapacitated to such a degree as to render his retirement necessary for the good of the service, he may so be retired at any time. A veteran retired under the provisions of tins act, whose term of service was for a fixed number of years, shall be entitled to the benefits of the act without reappointment.
This statute is applicable to cases where a veteran of the civil war in the service of the Commonwealth is incapacitated
^
JAMES M. SWIFT, ATTORNEY-GENERAL. 495
for active duty, and in such cases is mandatory, and, besides providing a pension for the person retired, is obviously intended to reheve the pubHc service of persons unable to perform the duties required of them. I am therefore of opinion that, with the consent of the Governor, a veteran may be retired, if in- capacitated for active duty, without regard to the desire of such veteran in the premises; and while the statute contains no express provision to that effect, I have no doubt that the head of a department may properly request and recommend re- tirement in such cases.
Constitutional Law — Police Power — Regulation of Sale op Goods, Wares and Merchandise made by Convict Labor in Prison — Constitution of the United States — Commerce Clause.
a proposed act requiring that all goods, wares and merchandise made by convict labor in any prison, reformatory or jail in this or any other State and brought into this Commonwealth, shall, before being exposed for sale, be marked "Convict Made," and providing that any person offering such goods for sale or having such goods in possession, without the printed label or mark, shall be guilty of a misdemeanor, cannot be justified as a valid exercise of the police power; and since it would constitute a burden or restriction upon interstate commerce, and would therefore be in contravention of the commerce clause (U. S. Const., Art. I., § VIII.) of the Federal Constitution, would therefore be unconstitutional if enacted. '
Your committee has requested my opinion upon the con- Jom^i
stitutionality of House Bill No. 833, entitled "An Act relative "Vgu'^'" to the marking of goods made in penal institutions," and pro- *^!L_ viding, in substance, that all goods, wares and merchandise made by convict labor in any prison, reformatory or jail in this or any other State in w^hich convict labor is employed and imported, brought or introduced into the State of Massachusetts, shall, before being exposed for sale, be branded, labelled or marked "Convict Made;" and that any person offering such goods for sale, or having such goods in possession for that pur-
' See Opinion of the Justices, 211 Mass. 605.
ttee
496 OPINIONS OF THE ATTORNEY-GENERAL.
pose, without the brand, label or mark, shall be guilty of a mis- demeanor, and upon conviction shall be punished by a fine not exceeding $1,000 nor less than $50, or by imprisonment for a term not exceeding twelve months or by both fine and im- prisonment.
I am of opinion that the proposed bill, if enacted, would be unconstitutional for the reason that it is in contravention of the commerce clause of the Federal Constitution (U. S. Const., Art. I., § VIII) which provides that "the congress shall have power ... to regulate commerce . . . among the several states, . . .", since prison-made goods, when brought into the Com- monwealth from another State, become articles of interstate commerce, and, as such, may not be discriminated against. Arnold v. Yanders, 56 Ohio, 417. Since, for the reasons which are set forth at length in the opinion of the court in the case of People V. Hawkins, decided by the Court of Appeals of the State of New York (157 N. Y. Rep. 1), the proposed legisla- tion cannot be justified as a valid exercise of the police power, it w^ould constitute a burden or restriction upon interstate commerce, and is therefore unconstitutional.
JAMES M. SWIFT, ATTORNEY-GENERAL. 497
Constitutional Law — Qualification of Voters — Legis- lature — Police Power — Regulation of Conduct of Elections.
The qualifications which shall entitle any person to vote or to be voted for and the right to elect and to be elected to public office are defined in Article IX. of the Declaration of Rights and Articles III., XX. and XXI. of the Articles of Amendment to the Constitution of the Common- wealth.
The conduct of elections may be regulated by the Legislature under the police power for the purpose of providing an easy and reasonable mode of exercising the constitutional right preventing error and fraud and securing order and regularity; but all such regulation must be subordinate to the provisions of the Constitution and cannot add to or diminish the qualifications of a voter as therein prescribed.
Whether or not the provisions of a proposed act which restrict the expenditure of money or the contribution of any other valuable thing in connection with an election by any person whether or not such person is a candidate for public office, to travelling expenses incurred by himself and to expenses for preparing,' circulating and filing nomination papers; to forbid, except in cases of age or physical disability, the conveyance of any voter to the polls other- wise than at his own expense, and require that if any person elected to office, or any member or agent, or his campaign committee, or any other person acting in his or their interest or behalf, is con\'icted of any \'iolation of the law relating to corrupt practices at the primary at which such candidate was named, or at the election at which he was elected, such office shall be vacated and a new election shall be held to fill it, are reasonable and necessary precau- tions against bribery, fraud and other improper conduct in connection with elections and, therefore, a protection to the constitutional right to elect and to be elected to office, is primarily a question of fact and, therefore, a proper subject for the determination of the Legislature.
It would seem, however, that the enforcement of such stringent regulations as those above described could hardly be held to be a reasonable regulation of the exercise of the right to take part in elections.
A provision in the proposed act requiring that persons who, by reason of age or physical infirmity, are unable to reach the polls without assistance and are, therefore, transported to and from the polls shall, before voting, make a statement under oath of such disability, is clearly unconstitutional as im- posing a qualification upon such persons additional to those prescribed by the Constitution.
By an order dated February 27 the Honorable Senate has re- to the Senate, quested my opinion upon four questions of law affecting the March 8. constitutionality of House Bill No. 1360, which is entitled "An Act relative to election expenses." Section 1 of this bill is de- signed to amend St. 1907, c. 560, § 316, as amended by St.
498 OPINIONS OF THE ATTORNEY-GENERAL.
1911, c. 679, § 1, by striking out the whole of said section and substituting the following section: —
No person shall, in order to aid or promote his own or another's nonuna- tion or election to a public office, directly or indirectly, liimself or through another person, give, pay, expend or contribute, or promise to give, pay, expend or contribute, any money or valuable thing, except for expenses directly incurred and paid by a person for traveUing and for purposes properly incidental to travelhng, and for preparing, circulating and filing nomination papers; but nothing in this section shall be construed to pro- hibit a person from making a voluntary payment of money or a voluntary and unconditional promise of payment of money to a pohtical committee for the promotion of the principles of the party which it represents and for expenses properly incidental thereto.
Section 2 of the proposed bill purports to amend St. 1907, c. 560, § 317. The section as there set forth, however, has been already amended by St. 1911, c. 679, § 2, and I assume that the proposed bill is applicable to the amended section. The present amendment strikes out the whole of this section and in its place provides that — •'
The mayor of each city and the selectmen of each town of two thousand or more mhabitants in the commonwealth shall, at each primary and election, provide one conveyance for each voting precinct within their jurisdiction, to be used under the direction of the presiding officer at each poUing place in transporting to and from the poUs such persons only as by reason of age or physical infirmity are unable to reach the same without assistance. A record of all persons so transported shall be kept by the presiding officer, and he shall require from each before voting a statement under oath of such physical disabihty. No voter shall be conveyed to the polls otherwise than entirely at his own expense except as herein proA^ded.
Section 6 of the proposed bill amends St. 1911, c. 679, § 6, which provides that —
If a person elected to public office is con\acted of any ■s\'ilful violation of the law relating to corrupt practices in connection with the primary or election at which he was nominated or elected, his office shall thereby be vacated, and a new election shall be held for the purpose of filling the same.
so that it shall read as follows : —
If a person elected to pubUc office, or any member or agent of his cam- paign committee, or any other person acting in his or their interest or
JAMES M. SWIFT, ATTORNEY-GENERAL. 499
, behaK, is comdcted of any violation of the law relatmg to corrupt practices in connection mth the primaiy or election at which he was nominated or elected, his office shall thereby be vacated, and a new election shall be held for the purpose of filhng the same.
The inquiries of the Honorable Senate with relation to the provisions above quoted are as follows : —
1. Is the provision in section 1 of the bill pruited as House Bill Xo. 1360 constitutional, which forbids a candidate to incur any expense in order to aid his nomination or election except as provided in lines 12 to 20 of said section?
2. Is the provision in the same section constitutional, which extends the same prohibition to persons not candidates?
3. Is the provision in section 2 of the same bill constitutional, which p^o^^des that no voter shall be conveyed to the polls otherwise than entirely at liis own expense, except in case of physical inability?
4. Is the provision of section 6 of the same bill constitutional, which provides for vacating an election because of coiTupt practices without proof of a candidate's knowledge or consent?
The qualifications which shall entitle any person to vote or to be voted for in this Commonwealth, and the right to elect or to be elected to public office, which is consequent upon such qualifications, are clearly fixed and defined by the Constitution of Massachusetts, and the Legislature cannot add to or alter the former or restrict or destroy the latter. Kinneen v. Wells, 144 Mass. 497, 499. The provisions of the Constitution of the Commonwealth upon this subject are to be found, first, in Article IX. of the Declaration of Rights, which declares that —
All elections ought to be free; and all the inhabitants of this common- wealth, having such quahfications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for pubhc employments.
*
and second, in the Articles of Amendment to the Constitution which prescribe the qualifications of voters, to be found in Articles III., XX. and XXXI., of which it is necessary to con- sider only Article III. This article is as follows: —
Eveiy male citizen of twenty-one years of age and upwards, exccptmg paupers and persons under guardianship, who shall have resided witliin
500 OPINIONS OF THE ATTORNEY-GENERAL.
the commonwealth one year, and within the town or district in which he may claim a right to vote, six calendar months next preceding any elec- tion of governor, lieutenant-governor, senators, or representatives, shall have a right to vote in such election of governor, Ueutenant-govemor, senators and representatives; and no other person shall be entitled to vote in such elections.
The qualifications of voters being thus established, the con- duct of elections may be regulated by the Legislature under Article IV. of Section I. of Chapter I. of Part the Second of the Constitution, by which full power and authority is con- ferred upon the General Court —
from time to time to make, ordain and estabUsh, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof;
but all legislation must be subordinate to the provisions of the Constitution already cited, and cannot add to or diminish the qualifications of a voter as therein prescribed. Kinneen v. Wells, suyra, p. 499; Blanchard v. Stearns, 5 Met. 298, 301; Williams v. Whiting, 11 Mass. 424; Opinion of the Justices, 5 Met. 591, 592; Commonwealth v. Rogers, 181 Mass. 184, 186. The power of the Legislature in the premises was well de- scribed by Chief Justice Shaw in the case of Capen v. Foster, 12 Pick. 485, at page 488, where he stated —
And this court is of opinion that in aU cases where the Constitution has conferred a pohtical right or privilege, and where the Constitution has not particularl}^ designated the manner in which that right is to be exercised, it is clearly ^dthin the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly and convenient manner. Such a construction would afford no warrant for such an exercise of legislative power, as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself.
And see, Cole v. Tticker, 164 Mass. 486.
JAMES M. SWIFT, ATTORNEY-GENERAL. 501
The provision of the Constitution from which the Legislature derives the power to regulate the exercise of the right of fran- chise is that which confers upon the General Court the police power (see Commomvealth v, Danziger, 176 Mass. 290, 291, and cases cited), and this power must always be reasonably exercised. CommomceaUh v. Bearse, 132 Mass. 542, 546; Com- monwealth V. Alger, 7 Cush. 53.
From the principles above discussed, therefore, it is clear that in passing upon the constitutionality of legislation which affects the right of any person or persons to elect or to be elected to pubUc offices created by the Constitution or laws of the Com- monwealth, it is necessary to determine as a matter of fact whether or not such legislation is intended to "provide 'an easy and reasonable mode of exercising the constitutional right' " and is "calculated to prevent error and fraud, to secure order and regularity in the conduct of elections, and thereby give more security to the right itself." Commomoealth v. Rogers, 181 Mass. 184, 186; citing Capen v. Foster, supra; Kinneen v. Wells, supra; and Jaquith v. Wellesley, 171 Mass. 138, 143.
From the principles which I have already discussed it follows that the proposed amendments will be constitutional only if they are designed to afford and do afford an easy and reasonable mode of exercising the constitutional right of participating in elections, and are "calculated to prevent error and fraud, to secure order and regularity of conduct of elections, and thereby give more security to the right itself." It is to be observed that the effect of the proposed legislation, taken as a whole, is to restrict the expenditure of money pr the contribution of any other valuable thing in connection with an election, by any per- son, whether or not such person is a candidate for public office, to travelling expenses and expenses properly incident to travel incurred by himself, and to expenses for preparing, circulating and filing nomination papers; to forbid, except in the manner designated, the conveyance of any voter to the polls except en- tirely at his own expense; and to require that if any person elected to office, or any member or agent of his campaign com- mittee, or any other person acting in his or their interest or
502 OPINIONS OF THE ATTORNEY-GENERAL.
behalf, is convicted of any violation of the law relating to cor- rupt practices at the primary at which such candidate was nominated or the election at which he was elected, such office shall be vacated and a new election shall be held to fill it. The provision in St. 1907, c. 560, § 316, as amended by section 1 of the proposed bill, that the act shall not apply to voluntary pay- ments or promises of payment of money to a political com- mittee, does not enlarge the field of permitted expenditure, for the reason that except for the purposes already enumerated no person is authorized to expend it, although the words "for the promotion of the principles of the party which it represents and for expenses properly incidental thereto" may have been in- tended to permit to political committees a greater freedom than is given to individuals in the premises.
The question thus presented is primarily one of fact, and therefore a proper subject for the determination of the Legis- lature. The enactment of the proposed amendments would have the effect of a determination by the General Court that the regulations contained therein were not in its opinion a restriction upon the exercise of the constitutional right affected, but were reasonable and necessary precautions against bribery, fraud and other improper conduct in connection with elections, and therefore a protection of the right itself, and, as such, would doubtless be entitled to great weight. See Common- wealth V. Bearse, 132 Mass. 542, 549; Commonwealth v. Alger, 7 Cush. 53, 102. So far as I am at liberty to express my views upon a question of this character, however, I am constrained to say that in my opinion^ by the enforcement of such stringent regulations as those contained in the proposed bill, the right of every citizen of the Commonwealth duly qualified to elect and to be elected to public office would be seriously impaired and re- stricted, since under such regulations a general election held throughout the Commonwealth might be invalidated by the act of a single person in violating even some minor provision of the law relative to corrupt practices. A regulation of elections which makes possible such a result can hardly be held to be a reasonable regulation of the exercise of the right to take part in
JAMES M. SWIFT, ATTORNEY-GENERAL. 503
elections, but is, rather, an injurious restraint and interference with it. For the reasons stated, therefore, I am of opinion that the proposed amendments referred to in each of the questions submitted by the Honorable Senate do not constitute a reason- able or necessary regulation of the constitutional right, are not necessary for its protection, and, if passed, would therefore be unconstitutional and void.
With respect to the second inquiry of the Honorable Senate, which refers to section 2 of the proposed bill, there is a further objection upon constitutional grounds, in that said section pur- ports to require of certain persons otherwise qualified to vote, as a preliminary to voting, an oath relative to their physical condition, which clearly constitutes a qualification additional to those prescribed by the Constitution.
See Kinneen v. Wells, 144 Mass. 497; Rison v. Farr, 24 x\rk. 161; Davies v. McKeeby, 5 Nev. 369; Green v. Shumicay, 39 N. Y. 418.
Constitutional Law — Appropriation of Money Raised by Taxation — Moral Obligation — Repayment of Money PAID UNDER Mistake of Fact or Law — New^ York, New Haven & Hartford Railroad Company.
The fiilfilment of a moral obligation upon the Commonwealth, created by a claim growing out of general principles of right and justice and based upon con- siderations of a moral or merely honorary nature, such as would be binding on the conscience or honor of an individual, is a public purpose, and money raised by taxation may be appropriated therefor, although such claim could not be enforced by any legal procedure.
A proposed resolve to provide for repayment by the Commonwealth of a sum erroneously paid as taxes by the New York, New Haven & Hartford Railroad Company, if the Legislature determined that the facts submitted in connec- tion therewith imposed upon the Commonwealth a moral obligation of the character heretofore recognized, would, if passed, be constitutional.
Your communication of March 6 states that you desire my to the Com-
, mitteo on
opinion "concerning the constitutionality of the repayment of Taxation, the franchise tax for 1910 to the New York, New Haven & MMi. Hartford Railroad as set forth in House Bill No. 508." The bill to which you refer is a proposed resolve to provide for the repayment by the Commonwealth of a sum erroneously
504 OPINIONS OF THE ATTORNEY-GENERAL.
paid as taxes by the New York, New Haven & Hartford Rail- road Company, and is as follows: —
Whereas, on September fifteen, nineteen hundred and nine, the New York, New Haven and Hartford Raihoad Company executed an instru- ment purporting to convey its real estate in Park Square in the city of Boston to Moses Williams and others, as trustees, and whereas the said trustees paid the tax on the said property levied by the city of Boston for the year nineteen hundred and ten, the said property being valued by the city at the sum of four million four hundred and seventy-two thou- sand dollars, and whereas on May sixteen, nineteen hundred and eleven, the supreme judicial court of the commonwealth rendered a decision that the said deed of conveyance was null and void, then making the said cor- poration hable to repay the said tax to the said trustees and then also enti- thng the said corporation to an abatement of part of the franchise tax paid to the commonwealth by the said corporation for the year nineteen hundred and ten. now, therefore, be it
Resolved, That the treasurer of the commonwealth shall pay co the said corporation a sum equivalent to the sum which would have been deducted from the franchise tax of the said corporation for the year nineteen hun- dred and ten, had not the said deed of conveyance been made, with, interest from the date of the payment of the said tax in the year nineteen hundred and ten, until the date when this resolve takes effect.
The facts upon which your inquiry is based are substantially recited in the preamble to the proposed resolve. The New York, New Haven & Hartford Railroad Company having in its possession certain real estate formerly occupied as a station at Park Square in the city of Boston, rendered unavailable for railroad purposes by the erection of the terminal passenger sta- tion and other changes made under the provisions of St. 1896, c. 516, on Sept. 15, 1909, conveyed said real estate to certain trustees, subject to the terms, conditions and trust contained in a declaration of trust bearing the same date. These trustees, who had full power in the premises, were to develop the prop- erty and dispose of it for the benefit of the holders of shares, which, to the number of 52,000, the trustees were authorized to issue to the New York, New Haven & Hartford Railroad Company in payment for the real estate so conveyed. The tax in question was assessed and paid under the provisions of St. 1909, c. 490, part HI., §§ 40-43, and as the Park Square prop-
JAMES M. SWIFT, ATTORNEY-GENERAL. 505
3rty stood in the name of the trustees and was taxed to them by the city of Boston, the New York, New Haven k Hartford Railroad Company did not include it in its statement of the v\-orks, structures, real estate, machinery, underground conduits, wires and pipes owned by it and subject to local taxation as re- quired by section 40 above referred to, and it was not, there- fore, deducted from the amount of the franchise tax as author- ized by section 41. Upon May 16, 1911, the Supreme Judicial Court of the Commonwealth, in the case of Williams v. John- son, 208 Mass. 544, a proceeding brought by a stockholder of the New York, New Haven & Hartford Railroad Company, handed down a decision holding that the disposition of the Park Square property of the New York, New Haven & Hart- ford Railroad Company was vltra vires, that the deed of said company to the trustees was beyond the power of the corpora- tion or the directors to make, and that the trustees took no valid title under it. If the invalidity of the transfer of the title had been known at the time when the tax for the year 1910 was assessed, the company would have been entitled to have the value of the Park Square property deducted from the value of its corporate franchise in determining the amount of franchise tax, and if such invalidity had been discovered within six months after the payment of said tax, the corporation might have secured a proper deduction by a petition to the Supreme Judicial Court, as provided in section 70 of part HI. of chapter 490, but since more than six months have elapsed from the date of payment of the tax there is now no legal rem.edy open to the corporation. Upon these facts, I reply to your specific inquiry as follows: — It is well established that the Legislature may appropriate money raised by taxation only for a public purpose. Lowell v. Boston, 111 INIass. 454; Kingman et al., petitioners, 153 Mass. 566; Opinion of the Justices, 186 Mass. 603, 605; Opinion of the Justices, 190 Mass. 611, 613.
Among those purposes which are generally recognized as pub- lic, and for which money raised by taxation may be expended, is the fulfilment of moral obligations, so-called, resting upon
506 OPINIONS OF THE ATTORNEY-GENERAL.
the sovereign, which cannot be enforced or required by any legal procedure; and it has been held that where a claim grows out of general principles of right and justice and is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, it may be fulfilled although the claim could obtain no recogni- tion in a court of law\ United States v. Realty Company, 163 U. S. 427, 440.
How far the Legislature of this Commonwealth may go in recognizing moral obligations by the appropriation of money raised by taxation has never been determined by the courts, although in Earle v. Commonwealth, 180 Mass. 579, in speaking of such an appropriation to be recovered as damages for a kind of injury for which it was unnecessary to provide compensation, Mr. Justice Holmes observed that "some latitude is allowed to the Legislature. It is not forbidden to be just in some cases where it is not required to be by the letter of paramount law." Such obligations have been very generally recognized in the past by legislative acts appropriating money to compensate indi- viduals for injuries received or property destroyed in the public service (see, for example, Resolves of 1910, c. 102; Resolves of 1909, c. 137; Resolves of 1908, cc. 49, 52, 55, etc.); or to afford compensation for other less definite and certain claims (see Re- solves of 1906, c. 61; Resolves of 1905, c. 55; Resolves of 1904, c. 49; Resolves of 1903, cc. 36, 77, 83; Resolves of 1902, cc. 11, 57), and no question appears to have been raised with respect to them.
This recognition has been expressly extended to the reim- bursement for money paid into the treasury of the Common- wealth under a misapprehension of fact. Thus, Resolves of 1907, c. 19, provides for the payment to the town of Dalton of $2,618.76, said amount "having been paid by the town . . . for the support of a State charge under a misapprehension of facts." And see Resolves of 1904, c. 78. Even more closely in point is Resolves of 1907, c. 36, which provided for reimbursing- the Mexican Central Railway for taxes inadvertently assessed, which had been paid into the treasury of the Commonwealth,.
JAMES M. SWIFT, ATTORNEY-GENERAL. 507
and for the recovery of o'ne of which a petition had been brought under St. 1903, c. 437, § 84, upon which the court had held the assessment invaUd. Mexican Central Raihcay v. Coni- mo7iweaUh, 192 Mass. 129.
Although the court has never precisely defined the limits of the power of the General Court with respect to the recognition of claims such as that presented by the proposed resolve in favor of the New York, New Haven & Hartford Railroad Com- pany, if the Legislature shall determine that the facts submitted in connection with said resolve impose upon the Common- wealth a moral obligation of the character of that recognized in the case of the Mexican Central Railway Company, or in other cases cited where municipalities or individuals have been reimbursed for money paid under a mistake of fact or law, I am of opinion that it may make a sufficient appropriation to discharge said obligation.
Constitutional Law — Elections — Voting Machines, Bal- lot Boxes and Counting Apparatus — Examination BY State Ballot Law Commission — Delegation of Legislative Authority.
a provision in a proposed act relating to the use of voting machines, that "the State Ballot Law Commission shall also constitute the State Board of Voting Machine Examiners, and shall at such times, under such conditions and after such public notice as they shall determine, examine voting machines, ballot boxes and counting apparatus, and they shall make and file with the Secretary of the Commonwealth their report on such machines, ballot boxes and count- ing apparatus as in their judgment conform to the requirements of law, together with such written or printed descriptions and such drawings, specifica- tions and photographs as shall clearly identify such machines," does not vest in or impose upon the State Ballot Law Commission any powers and duties which involve a delegation of legislative authority which would be objection- able upon constitutional grounds.
The provision above quoted does not directly require the State Ballot Law Commis- sion to approve only such machines as fulfill the requirements of the primary law, but indirectly requires such approval, since they are required to make and file their report only on such machines, ballot boxes and counting apparatus as in their judgment conform to such requirements.
By a vote, the Committee on Election Laws has submitted ;^Vu^"„^'"\ to me certain specific inquiries with relation to the draft of an '^oiT act now pending before said committee, entitled "An Act'
508 OPINIONS OF THE ATTOKNEY-GENERAL.
relative to the examination and use of voting machines, ballot boxes and counting apparatus." Section 1 of the proposed draft amends section 186 of chapter 560 of the Acts of the year 1907 by striking out the whole of said section and inserting in its place the following : —
No member of said commission (the state ballot law commission) shall hold any public office except that of justice of the peace or notary public, or be a candidate for pubhc office, or member or employee of any political conmiittee, or have any pecuniary interest, directly or indirectly, in any voting machine, ballot box or counting apparatus. If any member of the commission shall be nominated as a candidate for public office and shall not in writing decline said nomination within three days, he shall be deemed to have vacated his office as a member of said commission. The state ballot law commission shall also constitute the state board of voting ma- chine examiners and shall, at such times, under such conditions, and after such public notice as they shall determine, examine voting macliines, ballot boxes and counting apparatus, and they shall make and file with the secretary of the commonwealth their report on such machines, ballot boxes and counting apparatus as in their judgment conform to the requirements of law, together with such written or printed descriptions, and such draw- ings, specificatioiis and photographs as shall clearly identify such machines, and the secretary of the commonwealth shall send a copy of each report on voting machines to every city and town clerk. For the purpose of such examination the said board may employ not more than three expert machinists at a cost not exceeding ten dollars each for each day employed, to be paid from the appropriation for the expenses of the commission.
Section 2 provides as follows: —
Voting machines shall fm-nish convenient, simple and satisfactory means of voting and of ascertaining and recording the true result thereof with facility and accuracy, special regard being given to the prevention and detection of double voting; but no machine shall be approved which does not secure to the voter as much secrecy in voting as is afforded by the use of the official ballot. Ballot boxes shall have sufficient locks and keys or seal fastenings, and shall contain mechanical devices for receiving, registering and cancelling every ballot deposited thereon; but no such box shall record any distinguishing number or mark upon a ballot. No machine, ballot l)ox oi counting apparatus, except such as is approved in accordance with the provisions of this section, shall be used at any election,
JAMES M. SWIFT, ATTORNEY-GENERAL. 509
primary or caucus in this coninionwealth; nor shall anj' such machines, ballot boxes or counting apparatus be used except in accordance -nith the
provisions of this act.
The questions submitted for my consideration are —
First. — As to the constitutionahty of the provision delegating the power to specify or to detemiine the requirements of voting machines, especially as to whether the machines would fulfill the requirements of our laws relating to primaries and elections.
Second. — Does the bill herewith submitted fully authorize and compel the commissioners named in the bill to approve only such machines as fulfill the requirements of our primary and election laws?
and you further state that —
If the bill does not, in your opinion, either in fonn or in substance fully cover the question that may arise, we should be very glad to have you make suggestions and draft of a bill that would fully cover the subject matter.
The purpose of the proposed bill is to vest in the State Ballot Law Commission the power to examine voting machines, bal- lot boxes and counting apparatus for the purpose of determin- ing whether or not such appliances conform to the requirements of law which are substantially stated in section 2; and if the commission determine that such appliances do conform to the requirements of law, it is made their duty to file with the Secretary of the Commonwealth their approval in writing thereof, together with a sufficient description to identify the particular kind of voting machine, ballot box or counting apparatus ap- proved.
Subject to the limitation that the qualifications which entitle any person to vote in this Commonwealth and the right to elect and to be elected to public office which is consequent upon the possession of such qualifications, may not be altered or re- stricted, the Legislature may adopt any reasonable and uniform regulations in regard to the time and manner of exercising the right of voting, which are designed to secure and facilitate the exercise of such right in a prompt, orderly and convenient man-
510 OPINIONS OF THE ATTORNEY-GENERAL.
ner. Capen v. Foster, 12 Pick. 485, 488; Kinneen v. Wells, 144 Mass. 497; Cole v. Tucker, 164 Mass. 486.
The regulations in the proposed act with respect to the use of voting machines appear to be reasonable and uniform in their application, and are, therefore, open to no objection upon the ground that they constitute an interference with the con- stitutional right "to elect officers, and to be elected, for public employments." Art. IX., Declaration of Rights. Nor, in my opinion, do the powers and duties vested in and imposed upon the State Ballot Law Commission involve a delegation of the legislative authority which would be objectionable upon consti- tutional grounds. See Art. XXX., Declaration of Rights.
It is well established in this Commonwealth that while the Legislature may not delegate the general power to make laws conferred upon it by the Constitution, it may leave to a sub- ordinate tribunal the determination of such details as the Leg- islature cannot well determine for itself in the carrying out of a legislative act. Brodbine v. Revere, 182 Mass. 598, 602; Com- monwealth v. Sisson, 189 Mass. 247.
In the present instance, the examination of the various kinds of mechanical appliances for the purpose of determining which and how many of them conform to the requirements of the laws of the Commonwealth and may, therefore, be used in pri- maries and elections, is clearly a detail of administration the determination of which may properly be delegated by the Leg- islature to a subordinate tribunal.
In reply to your second inquiry, I am of opinion that the proposed act as submitted to me indirectly requires the State Ballot Law Commission to approve only such machines as ful- fill the requirements of the primary and election law, but does not directly do so, since they are required only to "make and file with the secretary of the commonwealth their report on such machines, ballot boxes and counting apparatus as in their judg- ment conform to the requirements of law." I suggest in the interests of clearness that this provision be made to read that "they shall file with the secretary of the commonwealth their approval in writing of all machines, ballot boxes and counting
JAMES M. SWIFT, ATTORNEY-GENERAL. 511
apparatus which in their judgment conform to the requirements of law," and that the words "and of the preceding" be inserted before the word "section" in Hne 15 of section 2 of the proposed act.
Board of Railroad Commissioners — Procedure — Ques- tions OF Law or Fact — Rulings.
The provision of St. 1906, c. 463, Part III., § 157, that the Supreme Judicial Court or the Superior Court shall have jurisdiction in equity "to re\'iew, annul, modify or amend the rulings of any State board or commission relative to street railways ..." does not require the Board of Railroad Commissioners to make formal rulings upon questions of law or issues of fact with respect to which the performance of their duties does not call upon them to make a decision.
If, however, the determination of a question of law is involved in the decision of the Board upon any matter of administration properly before them, they may express such determination in the form of a ruling.
You have requested my opinion as to whether it is consistent "^^^^i^^^ with the functions of the Board of Railroad Commissioners to Commiasionere make specific findings upon certain requests for rulings pre- ^^"'"'^^ ^°" sented to them by counsel under the circumstances set forth in your communication of March 11, as follows: —
In a communication dated Nov. 16, 1910, Hon. Walter Parley Hall, former chairman of this Board, requested the opinion of the Attorney- General upon certain questions arising in connection with two petitions then pending before this Board, one being the petition of the city of Worcester for approval of authority granted to the Worcester Consolidated Street Railway Company to act as common carrier of baggage and freight in that city, and the other being the petition of the Worcester Merchants' Association that the Worcester Consolidated Street Railway Company be requu-ed to act as common carrier of baggage and freight in the city of Worcester. In reply to this communication an opinion was rendered by Hon. Dana Malone, Attorney-General at that tune, under date of Dec. 27, 1910.
On Nov. 29, 1911, a conference was held by the Board in relation to the pending petition of the Worcester Merchants' Association, which was attended by representatives of the Worcester Merchants' Association and of the Worcester Consohdated Street Railway Company, and also by Mr. E. H. Vaughan, representing the city of Worcester. On Dec. 1, 1911, two sets of requests for ruUngs of law were filed by Mr. Vaughan, copies
512 OPINIONS OF THE ATTORNEY-GENERAL.
of which are enclosed herewith. Subsequently, on Dec. 4, 1911, the Board issued an order, a copy of which is also enclosed.
The statute under which this proceeding was instituted is St. 1907, c. 402, § 1, which provides that —
A street railway company may become a common carrier of newspapers, baggage, express matter and freight in such cases, upon such parts of its railway, and to such extent, in any city or town, as, after pubhc notice and a hearing, upon the petition of any interested party, the board of aldei"men or the selectmen in such city or town and the board of railroad commissioners shaU by order approve. If the board of aldemien or selectmen to whom such a petition is presented act adversely thereon or fail to act within sixty days from the date of the filing of such petition the petitioner or any interested party may file such petition -with the board of railroad commissioners, who shall after public notice and a hearing deter- mine whether public necessity and convenience require the granting of such petition and shall make an order dismissing such petition or requiring any street railway company named in such petition to act as such common carrier in such cases, upon such parts of its railway and to such extent, and under such regulations and restrictions, as in the opinion of said rail- road commissioners pubUc necessity and convenience require. Any street railway company acting under authority hereof shall be subject to such regulations and restrictions as may from time to time be made by the local authorities aforesaid, with the approval of the raihoad commis- sioners, and shall also be subject to the provisi6ns of all laws now or here- after in force relating to common carriers so far as they shaU be consistent herewith and with said regulations and restrictions. The authority con- feiTed upon any street railway company by virtue of the provisions of this act may at any time be revoked or terminated in any citj'- or town or upon any part of its railway, by the board of aldermen or selectmen with the approval of the board of railroad commissioners.
The principal contentions of the city of Worcester were, first, that the board of aldermen had not acted adversely and had not neglected to act w'ithin the meaning of the statute above quoted, and that the Board of Railroad Commissioners should have considered the petition which was originally presented to the board of aldermen and not the subsequent petition pre- sented by the Worcester Merchants' Association; and, second, that as matter of law said Board w^as authorized to approve a
JAMES M. SWIFT, ATTORNEY-GENERAL. 513
I limited franchise. In accordance with the opinion of the At- torney-General hereinbefore referred to, however, the Board took no action with respect to the petition of the \Yorcester Consohdated Street Railway Company, upon which the board of aldermen had acted, and issued an order in the usual form and without any limitation as to the duration of the franchise upon the petition presented by the Worcester Merchants' As- sociation.
The rulings submitted for my consideration are obviously in- tended to raise the contentions of the city in various forms, doubtless with a view to further proceedings under the provi- sions of St. 1906, c. 463, Part III., § 157, which is as follows: —
The supreme judicial court or the superior court shall have jurisdiction in equity, upon the petition of a street raihvay company, or of the board of aldermen of a city or the selectmen of a town in which the street railway is located, or of any interested party, to compel the observance of and to restrain the violation of all laws which govern street railway companies, and of all orders, rules and regulations made in accordance ^vith the pro- visions of this chapter by the board of aldermen of a city, the selectmen of a town or the board of railroad commissioners, and to review, annul, modify or amend the rulings of any state board or commission relative to street railways as law and justice may requhe.
See Kilty v. Railroad Commissioners, 184 ]\Iass. 310.
It may be doubted whether the use of the word "rulings" in this section was intended to include rulings other than those necessarily involved in or inferred from the determination of administrative questions and the action of the Board conse- quent thereon, but even if it may be extended to formal rulings upon questions of law requested by parties, the statute does not purport to require that such rulings shall be given by the Board. Moreover, I am of opinion that since the Board of Railroad Commissioners deal primarily with matters of ad- ministration, it may be said to be in general inconsistent with their functions to make formal rulings upon questions of law or issues of fact upon which the performance of their duties does not require them to make a decision. Upon the other hand, where the determination of a question of law is involved in the
514
OPINIONS OF THE ATTORNEY-GENERAL.
decision of the Board upon any matter of administration prop- erly before them, I see no reason why they may not express such determination in the form of a ruHng, and to that extent the making of ruhngs of law is consistent with the functions of the Board.
To the Com- missioners on Fisheries and Game. 1912 March 19.
Conviction — Plea of Nolo — Case placed on File — Game Laws — Violation — Certificate of Registra- tion.
A plea of nolo where the case is placed on file and such plea is not followed bj' a sen- tence or other form of final judgment, is not a "con\iction" within the meaning of St. 1911, c. 614, § 11, which provides that "every person convicted of \'iolating the game laws shall immediately surrender to the officer who secures such conviction his certificate of registration. . . ."
Your communication of March 9 refers to St. 1911, c, 614, §11, which provides that —
Every person contacted of \dolating the game laws shall immediately surrender to the officer who secures such conviction his certificate of registration; and the officer shall forthwdth forvvard said certificate to the commissioners on fisheries and game, who shall cancel the same and notify the clerk issuing the certificate of registration of the cancellation. No other certificate of registration shall be issued to such person so con%'icted during a period of one year after the date of conviction.
and you inquire with reference thereto whether "in cases where the defendant pleads nolo and the case is placed on file, is it, in your opinion, a conviction within the meaning of the statute, and should such a person be ineligible for a license within one year?"
In reply to this inquiry I have to advise you that in my opinion upon a plea of nolo, where the case is placed on file and said plea is not followed by any sentence or other form of final judgment, the person so pleading is not convicted within the meaning of the statute above cited, and the provision with re- spect to the issuance of a certificate of registration is not appli- cable.
JAMES M. SWIFT, ATTORNEY-GENERAL. 510
Riot or Other Disturbance of the Public Peace — County, City or Town Authorities — Duties — Suit- able Aid — Sheriff — Mayor — Selectmen — Precept — Discretion.
The public authorities of a county, city or town, in cases of a pubhc disturbance with rioting or anticipated rioting, are required to use the utmost of the powers within their control for the enforcement of the laws and the preserva- tion of the peace.
Since a sheriff, in cases where actual rioting exists or is imminently threatened, may require, under the provisions of R. L., c. 23, § 14, suitable aid in the preservation of the peace, he may under such circumstances call such assistance as a man of ordinary prudence, firmness and acti\'ity in his situation woiild think necessary to quell the existing or threatened disturbance.
In cases of existing or threatened rioting, the sheriff of a county, the mayor of a city or the selectmen of a town may issue a precept under the provisions of St. 1908, c. 604, §§ 142-150, directed to any commander of a brigade, regiment, battalion, corps of cadets, or company within his or their jurisdiction, requir- ing such commander to appear and aid the civol authority in suppressing violence and supporting the laws, the issuance of such precept being governed by the exercise of the sound discretion, good judgment and honesty of purpose of the sheriff or other local officer or officers in determining as a matter of fact whether or not the local police may be able to cope with the existing or threatened situation.
Under date of March 19 Your Excellency requests my To the
Governor.
opinion upon the following question : — „ ^.^l^^
March 20.
In case of a public disturbance, vnth. rioting or anticipated rioting, what are the rights and duties of to-mi or city authorities, county authorities (particularly the sheriif), the State pohce and the mihtia, with reference to maintaining order; and how far is it the duty of the local authorities to go before calling on the State ?
Taking up first the duties of town, city and county au- thorities in a case such as is inquired of, they may be briefly and comprehensively stated to be the enforcement of the laws and the preservation of the peace. As to "how far is it the duty of the local authorities to go before calling on the State," it is impossible to answer by giving any precise formula appli- cable to every case, but it may be briefly stated to be the duty of the local authorities to use the utmost of the powers within their control in the enforcement of the laws and the preserva- tion of the peace. Our laws recognize, however, that there
516 OPINIONS OF THE ATTORNEY-GENERAL.
may be occasions when town, city or county aiitliorities may find it difficult or impossible in thus exercising their authority to perform their full duty merely by the local officials. In the case of actual rioting, from early times the sheriff has had au- thority as now prescribed by R. L., c. 23, § 14, which provides as follows : —
They [sheriffs] may require suitable aid in the execution of their office in a criminal case, in the preservation of the peace, in the apprehending or securing of a person for a breach of the peace and in cases of escape or rescue of persons arrested upon civil process.
The first use of the phrase "suitable aid" as above employed appears in chapter 20 of the Acts of the Province of INIassachu- setts Bay in the year 1698. The phrase should be construed, therefore, as giving the same authority as that of a sheriff under the common law, in the light of which it is to be interpreted unless otherwise modified by statute. Consideration of the de- cisions in that regard discloses in each case a situation where the breach of the peace was actually in progress, or where there had been an outbreak, just previously, with another disturbance expected and imminent as a reasonable certainty. I am led to the conclusion that in order to warrant ,the sheriff in exercising this extraordinary remedy under his common-law authority, there must be a necessity for it because of disorders either exist- ing at the time of his action or imminently threatened, with apparent certainty to occur.
In addition to R. L., c. 23, § 14, hereinbefore cited, R. L., c. 211, § 1, further provides: —
If twelve or more persons, being armed with clubs or other dangerous weapons, or if thirty or more persons, whether armed or not, are unlaw- fully, riotously or tumultuously assembled in a city or town, the mayor and each of the aldermen of such city, each of the selectmen of such to\\Ti, every justice of the peace living in any such city or town and the sheriff of the county and his deputies shall go among the persons so assembled, or as near to them as maj^ be with safety, and in the name of the common- wealth command all persons so assembled immediately and peaceably to disperse; and if they do not thereupon iimuediately and peaceably dis- perse, each of said magistrates and officers shall command the assistance
^
JAMES M. SWIFT, ATTORNEY-GENERAL. 517
of all persons there present in suppressing such riot or unlawful assenil .ly and arresting such persons.
If there is, therefore, imminent, impending danger of a riot or other breach of the peace, the sheriff has the power and the j duty to call such aid as a man of ordinary prudence, firmness I and activity in his situation would think necessary to quell the disturbance. This use of the power to compel the aid and assistance of citizens in general is to be used only to quell a riot, but not to keep men for general police duty as occasion may require.
With reference to anticipated rioting, as well as rioting al- ready existing, the statutes have provided another method which may be employed by either the selectmen of a town, the mayor of a city or the sheriff of a county. These provisions are found in St. 1908, c. 604, §§ 142-150, but so far as material to the purposes of the present inquiry are contained in sections 142 to 145, which provide as follows: —
Section 142. In case of a tumult, riot, mob, or a body of men acting together by force to violate or resist the laws of the commonwealth, or when such tumult, riot or mob is threatened and the fact appears to the commander-in-chief, to the sheriff of the county, to the mayor of the city or to the selectmen of the town, the commander-in-chief may issue his order, or such sheriff, mayor or selectmen may issue a precept, directed to any commander of a brigade, regiment, naval brigade, battalion, squadron, corps of cadets or company, within their jurisdiction; directing him to order his command, or a part thereof, to appear at a time and place therein specified to aid the civil authority in suppressing such violence and supporting the laws; which precept shall be in substance as follows: —
COMMOlSrWEALTH OF MASSACHUSETTS.
To [insert the officer's title] A. B., commanding [insert his command].
Whereas, it appears to [the sheriff, mayor or the selectmen] of the [county, city or town] of , that [here state one or more of the causes above
mentioned] in our of . and that military force is
necessary to aid the civil authority in suppressing the same: Xow, therefore, we command you that you cause [your command, or such part thereof as may be desired], armed and equipped with ammunition and with proper officers, to parade at on , then and there to obey such orders as may
be given according to law. Hereof fail not at your pcrU, and have you there this precept with your doings returned thereon.
518 OPINIONS OF THE ATTORNEY-GENERAL.
This precept shall be signed by such sheriff, mayor or selectmen, and may be varied to suit the circumstances of the case; and a copy of the same shall immediately be forwarded by such sheriff, mayor or selectmen to the commander-in-chief.
Section 143. The officer to whom the ordei: of the commander-in-cliief or biigade commander, or such precept, is directed shall forthwith order the troops therein called for to parade at the time and place appointed, and shall immediately notify the commander-in-chief of his order, directly in the most expeditious manner, and by letter through the usual military channels.
Section 144. If an officer refuses or neglects to obey such order or precept, or if any officer or soldier neglects or refuses to obey an order issued in pursuance thereof, he shall be punished as a com-t-martial may adjudge.
Section 145. Such troops shall appear at the time and place ap- pointed, armed, equipped, and with ball ammunition, and shall obey and execute such orders as they have received, or such additional orders as they may then and there receive from the governor, or from an officer serving under the provisions of section one hundred and forty-two.
With reference to the propriety of calling out the militia by the aforesaid precept by the selectmen of a town, the mayor of a city or the sheriff of a county, the Supreme Judicial Court has said, in the case of Ela v. Smith, 5 Gr3,y, 121, 135, in a learned and exhaustive opinion covering generally the subject-matter of the present inquiry : —
In exercising the authority thus conferred, the statute makes it the fii'st duty of the mayor or other magistrate to determine whether the occa- sion for calling out a military force exists. This depends on a question of fact, which it is his exclusive duty to determine. If it be made to appear to him that a tumult or riot is threatened, he may then issue his precept. He is, in his official capacity, and under the sanction of his oath of office, to examine and decide this question. This provision of the statute clearly confers a judicial power. Whenever the law vests in an officer or magis- trate a right of judgment, and gives him a discretion to determine the facts on which such judgment is to be based, he necessarily exercises, within the limits of his jurisdiction, a judicial authority. So long as he acts within the fair scope of this authority he is clothed with all the rights and immuni- ties which appertain to judicial tribunals in the discharge of their appro- priate functions.
JAMES M. SWIFT, ATTORNEY-GENERAL. 519
The same authority resting in the sheriff by the terms of the statute as in the mayor of a city, the language of this decision would equally apply to the powers and duties of the sheriff in that regard. In said decision the court further said: —
It cannot be urged, as a valid argument against tine recognition of this authority in civil officers, that it is liable to abuse, and may be made the instrument of oppression. The great security against its misuse and per- version is to be found in the discretion, good judgment and honesty of purpose of those to whom important public duties are necessarily entrusted. But the existence of such authority is essential in a community where the first and most important use of law consists in preser\nng and protect- ing persons and property from unlawful violence.
To that part of Your Excellency's question which refers to the rights and duties of various public authorities, "with refer- ence to maintaining order," I can perhaps do no better than to quote further from said decision, as follow^s: —
But wliile thus recognizing the authority of civil officers to call out and use an amied force to aid in suppressing a riot or tumult actually existing, or preventing one which is threatened, it must be borne in mind that no power is conferred on the troops, when so assembled, to act independently of the civil authority. On the contrary, they are called out, in the words of the statute, "to aid the civil authority," not to usurp its functions, or take its place. They are to act as an armed police only subject to the absolute and exclusive control and direction of the magistrates and other civil officers designated in the statute, as to the specific duty or ser\nce which they are to perfonu. The statute does not even enlarge the power of the civil officers by giving them any military authority; but only places at their disposal, in the exercise of their appropriate and legal functions, an organized, discipUned and equipped body of men, capable of more efficient action in an emergency, and among a multitude, than an ordinary police force. Nor can the magistrate delegate his authority to the military force which he summons to his aid, or vest in the miUtary authorities any discretionary power to take any steps or do any act to prevent or suppress a mob or riot. They must perfonn only such service and render such aid as is required by the ci^-il officers. This is not only essential to guard against the use of excessive force and the exercise of irresponsible power; but it is required by the fundamental principles of our Constitution, which provides that "the military power shall always be held in an exact sub- ordination to the civil authority, and be governed by it." Declaration of
520 OPINIONS OF THE ATTORNEY-GENERAL.
Rights, Art. XVII. It does nojt follow from this, however, that the mili- tary force is to be taken wholly out of the control of its proper officers. They are to direct its movements in the execution of the orders given by the civil officers, and to manage the details in which a specific ser^dce or duty is to be performed. But the sei-vice or duty must be first prescribed and designated by the civil authority.
It would therefore seem that the sheriff or other local officer should use sound discretion, good judgment and honesty of purpose in determining as a matter of fact whether or not the local police were able to cope with a situation such as is re- ferred to in the present inquiry. Acting with these considera- tions in mind, such officer has the right to issue the precept provided for in said section 142 of chapter 604 of the Acts of 1908.
The reference in said inquiry to "the State police" I as- sume to mean the District Police, provided for by chapter 108 of the Revised Laws, and amendments thereof and additions thereto. Section 7 of said chapter provides as follows: —
The district police shall have and exercise tlu-oughout the common- wealth all the powers of constables, except the service of civil process, and of police officers and watchmen. The governor may at any time command their services in suppressing riots and in preserving the peace; but, except as aforesaid, a member of the inspection department shall not be required to perform any other duties than such as pertain to an inspector of fac- tories and pubhc buildings or to an inspector of steam boilers.
Whether or not the District Police shall be employed in a case such as is inquired of is a matter of policy and discretion to be determined by the exercise of the judgment of the person upon whom the duty falls to so determine, under the circum- stances of each particular case. No specific rule or formula can be definitely given beyond the use of the best judgment pos- sible under the circumstances at the time.
March 28.
JAMES M. SWIFT, ATTORNEY-GENERAL. 521
Constitutional Law — Money raised by Taxation — Ai-- PROPRiATioN — Public Purpose — Homes for Mechan- ics, Laborers or Other Wage Earners.
A proposed bill authorizing the commission established by St. 1911, c. 607, to purchase in the name of the Massachusetts Homestead Commission an(i "for the purpose of providing homes for mechanics, laborers or other wage earners," and appropriating money therefor, would be unconstitutional if passed, since it involves the expenditure of public money for a private purpose. 1
On behalf of the Committee on Ways and Means you have To the House submitted for my consideration a draft of a bill entitled "An vvays"a"<r°° Act to extend and define the duties of the Homestead Com- ,. 1912, mission," accompanying the special report of the Homestead Commission, House Document Xo. 441, and have orally brought to my attention certain inquiries with reference to the constitutionality of the provisions of said bill, with the request that I advise your committee thereon.
With reference to that part of section 3 which provides as follows: —
The treasurer and receiver-general is authorized to loan the commission from time to time such sums as it may certify to him in writing to be necessary to carry out the purposes of this act, except for the expenses incurred under section five, from the funds deposited by the savings banLs in the treasury of the commonwealth under the provisions of section fifty- six of chapter five hundred and ninety of the acts of the year nineteen hun- dred and eight, and subject to the restrictions of said act —
I am of the opinion that there is no constitutional objection. Said money in the hands of the Treasurer is public money available for public purposes, according to law. If the purpo.se for which it is to be expended in this case is a lawful, public purpose it may be deemed available, as provided in said section. As to section 1 of said bill, which provides as follows: —
The commission established by chapter six hundred and seven of the acts of nineteen hunched and eleven shall be authorized to purcha.se in the name of the Massachusetts Homestead Commission a tract or tracts
1 See Opinion of the Justices, 211 Mass. 624.
522 OPINIONS OF THE ATTORNEY-GENERAL.
of land for the purpose of providing homes for mechanics, laborers, or other wage-earners, and shall have authority to sub-divide, improve, build upon, lease, rent, sell, re-purchase, manage, and care for said tract or tracts and the buildings constructed thereon, in accordance with such terms and conditions as may be determined upon by the commission, due consideration being given to the proper laying out of streets, parks, garden areas, and buildings for recreation or other public purposes ; and the com- mission shall make such regulations, restrictions, and reservations in con- tracts, leases, deeds, and otherwise as may be necessary for the protection of said tract or tracts from any objectionable use. Each person holding property under the jurisdiction of the commission shall be the owner of at least five shares of stock as hereinafter provided for, before being permitted to occupy or acquire title to any of said real estate; provided, however, that the conmiission in exceptional cases may temporarily waive the afore- said requirement as to ownership of stock prior to occupancy —
different principles have to be considered. In the first place, the purpose stated in said section is "providing homes for me- chanics, laborers or other wage-earners." This limits the bene- fits of said act to certain definite classes, thereby taxing the public in general for a certain favored class, without disclosing any substantial reason for such class legislation. If this objec- tion should be cured by an amendment which included any citizen instead of members of these particular classes, there re- mains the further and more fundamental, question as to whether the expenditure provided for in this proposed act is an expendi- ture for public purposes.
The principle governing such consideration was long ago stated by the Supreme Court of this Commonwealth, in Lowell V. Boston, 111 Mass. 454 (see, also, Loan Association v. Topeka, 20 Wall. 655; ante, p. 305). Among other things it was therein pointed out, at page 461 : —
It is the essential character of the direct object of the expenditure which must determine its vaUdity as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advan- tage of the community, and thus the pubhc welfare, may be ultimately benefited by their promotion.
Applying the principle of that case to the bill under con- sideration, it appears that the direct object of the expenditure
JAMES M. SWIFT, ATTORNEY-GENERAL. 523
of the public money herein provided for is the purchase of land and the erection of homes for laborers, mechanics and wage- earners. The public benefit alleged is the improvement of the health and morals of the community. It appears, however, that this alleged public benefit is so remote and incidental that it cannot outweigh the real character of the direct object of the expenditure, which appears to be fundamentally for private rather than public purposes.
While I am of the opinion that under the limitation of the decisions as they now stand these provisions are unconstitu- tional, it is impossible for me to say how far our Supreme Judicial Court might go in approving legislation purporting to be enacted for the public welfare and for the betterment of health and morals, it being in each case largely a question of degree. There is at least grave doubt as to the constitution- ality of said section 1.
Town — Note payable "during the Year 1912" — Date
OF Payment.
A note of a town payable "within the year 1912" is in effect a note payable at a future date certain, or earlier at the option of the maker, and therefore does not comply with the requirement of St. 1910, c. 616, § 1, that a town note shall state "the date when it will become due for payment."
You have requested mv opinion as to whether you may xo^tho
, , J . . . , Director of
"properlv certifv a note of a town made payable within the the Buroau
^ ^ «' ^ * of Stiiti.slici).
year 1912,' under the provisions of chapter 616, Acts of 1910, ^1^012^ section 1 of which provides that the note shall state 'the date when it will become due for payment.' "
A note payable "within the year 1912" is, in effect, a note payable at a future date certain, or earlier at the option of the maker, and so is not payable at any fixed or determinable future time. Mahoney v. Fitzpatrick, 133 Mass. 151; Stults v. Silva, 119 Mass. 137; Way v. Smith, 111 Mass. 523. And see Richards v. Barloic, 140 Mass. 218. It does not comply, there- fore, with the requirement of St. 1910, c. 610, § 1, that a town note shall state "the date when it will become due for pay- ment," and you should not certify it.
524 OPINIONS OF THE ATTORNEY-GENERAL.
License — Engineer — Steam Boiler — Owner or User — Operation — Unlicensed Person — Coal Shovel-
ERS.
The provision of R. L., c. 102, § 8, as amended by St. 1907, c. 373, § 1 and St. 1911, c. 562, § 1, that "the owner or user of a steam boiler or engine . . . shall not operate or cause to be operated a steam boiler or engine for a period of more than one week, unless the person in charge of and operating it is duly licensed," allows such owner or user, in the exercise of good faith and in an unavoidable emergency, a period of one week within which to procure a person licensed in accordance with the requirements of law; and by the use of such period, the owner or user is not thereafter forever prohibited from availing himself under like conditions of such allowance.
The provision of R. L., c. 102, § 80, as amended by St. 1911, c. 562, § 2, that "to work with a licensed person there may be employed not more than one unlicensed person, who, in the presence and under the personal direction of the licensed person, may operate the appurtenances of a boiler or engine," does not require that coal shovelers, whose sole duty consists in putting coal under the boiler, should be licensed, since coal shovelers, or other persons performing the duties of mere laborers in handling coal used in the operation of a boiler or boilers, are not operating any appurtenances thereof.
of^the^Dis-*^^ Under date of April 6 you have written me with reference to
trict^Poiice. sections 78, 79 and 80 of chapter 102 of the Revised Laws, as amended by chapter 373 of the Acts of 1907 and by chapter 562 of the Acts of 1911, requesting my opinion upon the fol- lowing matters: —
April 8.
First, the last clause of section 78 reads as follows : —
The owner or user of a steam boiler or engine, other than boilers or engines above excepted, shall not operate or cause to be operated a steam boiler or engine for a period of more than one week, unless the person in charge of and operating it is duly licensed.
Is it to be understood that the owner or user of a steam boiler or engine, who from necessity has employed a person not duly Ucensed for a period of one week, is forever after prohibited from such provision of section 78 in connection with the use of the same boiler or boilers; or could he be per- mitted, after a reasonable period of time, to again take advantage of this provision?
Second, the last clause of section 80 reads as follows: —
provided, however, that to work with a licensed person there may be employed not more than one unlicensed person who, in the presence and under the personal direction of the licensed person, may operate the appurtenances of a boiler or engine.
JAMES M. SWIFT, ATTORNEY-GENERAL. 525
Under the provisions of tliis clause are we to understand that there must be one hcensed fii-eman who operates the appurtenances of a boiler, and who is allowed one helper, who may be unlicensed, to operate any appurtenances of a boiler or boilers, and also that an unlimited number of coal shovelers may also be employed, whose duty solely consists in putting coal under the boiler in a large boiler plant?
In my opinion with reference to the first inquiry, your sug- gestion of a possible construction that the owner or user of a steam boiler, who had employed a person not licensed for the period of one week, might be forever after prohibited from taking advantage of the provision of section 78 in that regard, would be a most unreasonable construction. Taking said sec- tion 78 in connection w4th section 79, which provides that —
If such steam engine or boiler is found to be in charge of or operated by a person who is not a duly licensed engineer or fireman and, after a lapse of one week from such time, it is again found to be operated l:»y a person who is not duly licensed,, it shall be deemed prima facie evidence of a viola- tion of the provisions of the preceding section —
It is obvious that this provision w^as intended for emergencies, so that a person in the exercise of good faith, and in an un- avoidable emergency, might be allowed one week in Avhich to provide himself with a licensed person within the requirements of the law\ The object of the provision would not be accom- plished if the right therein given is exhausted by its operation for one w^eek and then forever prohibited.
With reference to the second inquiry, the question seems to be practically governed by an opinion of Attorney-General Knowlton, II Op. Atty.-Gen. 62. I am of the opinion that within the limits of your inquiry there must be one licensed person, either fireman or engineer, who operates the appur- tenances of a boiler, and who is allowed one helper who may be unlicensed. There may also be an unlimited number of coal shovelers, whose duty consists solely in putting coal under the boiler. It was ruled in said opinion of Attorney-General Knowlton "that licenses are not required for mere laborers, whose duties require no skill and involve no responsibility."
526 OPINIONS OF THE ATTORNEY-GENERAL.
Since that opinion the statute has been changed so that it provides that it shall be unlawful for any person to have charge of or to operate the a'pinirtenances of a boiler as well as the boiler or engine itself. This does not, in my opinion, change the conclusion reached by Attorney-General Knowlton. I know of no use of the word "appurtenances" which would include coal within that term. Coal shovelers or coal hoisters, or other persons performing duties of mere laborers with reference to the coal used in the operation of boilers, are not in my opinion operating any appurtenances thereof.
Constitutional Law — Police Power — Competition — Purpose to injure or destroy Business of a Rival — Discrimination — Lowering of Prices in one Locality BY A Person, Firm, Association or Corporation en- gaged in Business in Several Localities — " Unfair Discrimination."
The purpose to injure or destroy the business of a rival by competition is not illegal.
A proposed act providing that "any person, firm, association or corporation . . . engaged in the production, manufacture or distribution of any commodity in general use, that shall intentionally, for the purpose of destroying the business of a competitor in any locality, discriminate between different sections ... of this Commonwealth, or between purchasers, by selling such commodity at a lower rate for such purpose in one section . . . than is charged in another section . . . shall be deemed guilty of unfair discrimina- tion, which is hereby prohibited and declared unlawful", in effect renders unlawful all competition in any locality entered into for the purpose specified by a person, firm, association or corporation carrj-ing on business in more than one such locality.
The prohibition in such proposed act is not limited to discrimination entered upon maliciously or for the purpose of destroying the business of competitors in order to create a monopoly or for any other illegal purpose, and therefore discloses no sufl!icient distinction between the acts of discrimination pro- hibited and other acts of discrimination or competition not prohibited to justify such prohibition as a valid exercise of the police power.
Such proposed act, therefore, if passed, would be unconstitutional and void.
commiuee'on On behalf of the Committee on Bills in the Third Read- ThirdReading. ing you havc submitted for my consideration a proposed Aprii^23. bill entitled "An Act to prohibit discrimination in the sale
JAMES M. SWIFT, ATTORNEY-GENERAL. 527
of commodities," and requested my opinion upon its consti- tutionality.
The first section of the bill in question is as follows: —
Any person, finn, association or corporation, foreign or domestic, doing busmess in the commonwealth of IMassachusetts and engaged in the pro- duction, manufacture or distribution of any commodity in general use, that shall intentionally, for the purpose of destroying the business of a competitor in any locahty, discriminate between different sections, com- munities, towns or cities of this commonwealth, or between purchasers, by sellmg such conunodity at a lower rate for such purpose in one section, conmiunity, town or city than is charged for said commodity by the vender in another section, community, towoi or city in the commonwealth, after making due aUowance for the difference, if any, in the grade or quality and in the cost of transportation, shall be deemed guilty of unfair discrimi- nation, which is hereby prohibited and declared unlawful.
There are other sections which define offences, provide for their prosecution and prescribe penalties, but in view of the conclusion hereinafter stated it is unnecessary to refer to them in detail.
The bill is undoubtedly designed to invoke the police power to prohibit a discrimination in prices between different localities in the Commonwealth, or between purchasers in different lo- calities, where prices have been lowered in one locality for the purpose of destroying the business of a competitor in such locality, and in effect to render unlawful competition in a single locality entered into by a person, firm, association or corpora- tion carrying on business in more than one locahty. Like dis- crimination, induced by any other purpose or motive, is not illegal.
The fundamental question presented by the inquiry of the committee is, therefore, whether the definition of unfair dis- crimination in the section of the bill above quoted is grounded upon a reasonable distinction with reference to other forms of discrimination or competition so as to permit a valid e.xercise of the police powder in the premises.
As above stated, discrimination is "unfair," and therefore prohibited, only when it arises from a lowering of prices in a
528 OPINIONS OF THE ATTORNEY-GENERAL.
given locality "intentionally, for the purpose of destroying the business of a competitor;" but since in the conduct of business competition, which gives to one what it takes from another, must inevitably result in the destruction in whole or in part of the business of a rival, the specified purpose, to a greater or less extent, is inseparable from all competition. In itself, moreover, the purpose to injure the business of a rival by com- petition is not illegal. Martell v. WhUe, 185 Mass. 255, 260; Plant V. Woods, 176 Mass. 492, 501; Boiven v. Matheson, 14 Allen, 499. And see Commonwealth v. Hunt, 4 Met. Ill, 134. And this is true even where the injury sought to be accomplished is the destruction of the business and the conse- quent ruin of a competitor. Martell v. White, suyra, p. 261. It follows, therefore, that neither the act of discriminating nor the purpose which brings the act within the prohibition of the bill, if separately considered, is illegal. On the contrary, the public policy of the Commonwealth has recognized and justified competition in business and has expressly declared that every contract, agreement or combination which restrains or prevents competition in the supply or price of any article or commodity is against public policy and is illegal and void. St. 1908, c. 454. See Vegelahn v. Guntner, 167 Mass. 92; Commonwealth v. Hunt, 4 Met. Ill, 134.
The police power extends to all matters which affect the lives, limbs, health, comfort and welfare of all in their persons and property {Commomvealth v. Bearce, 132 Mass. 542, 546) and the Legislature may enact "such reasonable regulations as they may judge necessary to protect public and private rights, and to impose no larger restraints upon the use and enjoyment of private property, than are in their judgment strictly necessary to preserve and protect the rights of others." Commonwealth V. Alger, 7 Cush. 53, 102.
There are, however, limitations upon this power. Thus, in O'Keeffe v. Somerville, 190 Mass. 110, the court, in speaking of the regulation of the ordinary transactions of business (in this case the imposition of an excise tax upon the selling or
JAMES M. SWIFT, ATTORNEY-GENERAL. 529
giving of trading stamps in connection with the sale of articles, which was held invalid), said, at page 114: —
One of the reasons why these methods are allowable is found in the famihar principle that constitutional hberty means "the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his hvelihood in any lawful calling, and to pursue any lawful trade or avocation." The restrictions upon conduct wliich may be imposed in the exercise of the pohce power include everji^hing that maj^ be neccssaiy in the interest of the public health, the public safety or the pubhc 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.
To constitute the bill now before me a proper exercise of the police power, therefore, it must appear that the public health, the public safety or the public morals require protection against competition when it takes the form of a discrimination in the price of a commodity between localities or purchasers in dif- ferent localities which is unnecessary where competition does not result in such discrimination. The right primarily pro- tected is the right of the competitor in a locality against which the discrimination is directed to be free from competition, a right which does not exist at common law {Walker v. Cronin, 107 Mass. 555; Martell v. White, 185 Mass. 255), and which contravenes the established public policy of the Commonwealth. Such being the purpose and eflfect of the bill submitted to me, I am constrained to say that in its present form it discloses no sufficient distinction betw^een the acts prohibited and other forms of competition which the law not only permits but en- courages, and that in my opinion, if enacted, it would not con- stitute a valid exercise of the police power.
Legislation, substantially like the bill now before your com- mittee, has been twice considered by courts of last resort. In State V. Drayton, 82 Nebr. 254, a statute almost identical in terms was upheld upon the ground that it "was enacted for the purpose of supplying a defect in the anti-trust laws of the State," upon an information charging that the defendant "did
530 OPINIONS OF THE ATTORNEY-GENERAL.
unlawfully, maliciously and intentionally, for the purpose of destroying the business of a competitor . . . discriminate be- tween different sections of the State," and both the prosecuting ojBBcer and the court treated the statute as if the word "mali- ciously" was a part of it, and as if the purpose which made the discrimination unfair and therefore unlawful was the purpose of destroying the business of a competitor "in order that the wrongdoer may have a monopoly" (page 264).
In State v. Central Lumber Co., 24 So. Dak. 136, the statute under consideration made discrimination unlawful when such discrimination was for the purpose of "destroying the competi- tion of any regular, established dealer ... or to prevent the competition of any person who in good faith intends and at- tempts to become such dealer," and the court again treated the statute as if it were directed against monopolies.
If the bill in question were in terms directed against discrim- ination entered upon maliciously or for the purpose of destroy- ing business in order to create a monopoly, a very different question would be presented, and if enacted, it might well be treated as supplying a defect in the anti-trust laws of the Com- monwealth. No such limitation, however, is to be found in it in its present form. Section 1 doubtless, includes a person, firm, association or corporation which discriminates in prices for the purpose of creating a monopoly, but it also extends to and in- cludes persons who discriminate in the course of lawful and proper competition, with the purpose of destrojang the business of competitors, so far as competition may destroy it, for their own benefit, without any malicious or unlawful intent to injure the public by creating a monopoly in the sale of the commodi- ties in which they deal. This unlawful purpose is, in my opinion, essential to distinguish the acts sought to be pro- hibited and to afford a reasonable basis for regulation under the police power.
JAMES M. SWIFT, ATTORNEY-GENERAL. 531
Constitutional Law — Amendment to Constitution — Taxation — Wild or Forest Lands — Standing Wood AND Timber.
A proposed constitutional amendment, giving to the General Court full power and authority "to prescribe for wild or forest lands such methods of taxation as will develop and conserve the forest resources of the Commonwealth," if adopted would permit the enactment by the Legislature of taxation laws with reference to woodlands and wood lots without regard to their size so long as said wood lots or woodlands were wild and forest lands; that is, in a state of nature and uncultivated except for the purpose of producing wood and timber.
The term "wild or forest lands" does not include a tract of woodland located within fence premises of which the principal use is for pasturage.
The technical signification of the term "wild or forest lands" has never been established or defined by the courts of this Commonwealth. The term "standing wood and timber" has not received, either in the statutes of this Commonwealth or in the decisions of the court, a fixed or technical definition of universal or even of general application.
The proposed amendment to the Constitution, which would confer upon the General Court full power and authority to prescribe for wild or forest lands "such methods of taxation as will develop and conserve the forest resources of the Commonwealth," would authorize the enactment of laws to pro\'ide that wild or forest lands should be taxed without reference to the element of value contributed by the growth thereon, and that the tax upon the value of such growth might be reduced or altogether omitted in the determination of the tax to be assessed upon said lands.
I have the honor to acknowledge the receipt of an order To the Houae
" _ , ot Represent-
adopted by the Honorable House of Representatives on April stives. 12, requesting my opinion upon certain questions "in respect ^^°y '• to the constitutional amendment, relative to the taxation of wild or forest lands, now pending in the House of Repre- sentatives and contained in House Resolve No. 19S2." This re- solve, which was duly passed by the Legislature of last year, is as follows : —
Full power and authority are hereby given and granted to the general court to prescribe for wild or forest lands such methods of taxation as will develop and conserve the forest resources of the commonwealth.
The specific questions submitted to me by the Honorable House of Representatives are as follows : —
1. Does the amendment as at present drafted include all wood lots and
woodlands irrespective of their size?
532 OPINIONS OF THE ATTORNEY-GENERAL.
2. Does the amendment as drawn discriminate against small wood lots and include only large tracts of woodland?
3. Does the term "wild land" include small wood lots?
4. Does the amendment as drawn pennit the enactment of taxation laws by the Legislature with reference to wood lots and woodlands regard- less of their size?
5. Does the term "wild or forest lands" include a tract of woodland located within fenced premises whose principal use is for pasturage ?
6. Is the terai "wild or forest lands " a term of well-known legal significa- tion estabhshed by any decision of any court of last resort in the United States ?
7. Is the term "standing wood and timber" a term of well-known legal signification established by various decisions of courts of last resort in the United States ?
8. Does the amendment as drawn pennit the enactment of laws to tax the land and exempt or reduce the tax on the growing timber which stands upon it?
The proposed amendment is broad in terms and is designed to afford the Legislature comprehensive authority to adopt for wild or forest lands such methods of taxation as in their judg- ment may best develop and conserve the forest resources of the Commonwealth. So far as I am aware, the term "wild or forest lands" has never been precisely defined by either the court or the Legislature of this Commpnwealth, but the term ''wild land" is well known to the law, and has been often dis- cussed and its signification definitely determined in connection with writs of dower and writs of entry or actions of tort for trespass. In these connections it has been defined as land in a state of nature, and includes marsh land, sprout land and woodland. Conner v. Shepherd, 15 Mass. 164; Wehh v. Town- send, 1 Pick. 21; Richmond Iron Works v. Wadhanis, 142 Mass. 569. Such land does not cease to be wild land, even when used as an appendage to a cultivated farm for the purpose of pro- curing fuel and timber. White v. Willis, 7 Pick. 143; White V. Cutler, 17 Pick. 248. The term "forest land" does not seem to have been directly considered by the court. As used in the proposed amendment, above quoted, however, it probably does not differ greatly in meaning from the term "wild land," which precedes it. The word "forest," alone, has been defined to be —
JAMES M. SWIFT, ATTORNEY-GENERAL. 533
A tract of land covered with trees; a wood, usually one of considerable extent; a tract of woodland with or without enclosed interv^als of open and uncultivated ground. — Century Dictionary and CYCLOPiEoiA.
In the case of White v. Cutler, 17 Pick. 248, Chief Justice Shaw, in discussing the right of dower of a widow in wild and uncultivated land, uses the terms "forest lands" and "wood- lands" interchangeably: —
These reasons apply as well to the case of a wood lot situated in the midst of a cultivated country, as to forest lands in their original state. But the chief justice, in delivering the opinion of the court in this case {Conner v. Shepherd, 15 Mass. 164), takes care in terms to hmit its opera- tion to the case of woodlands not used or connected with a cultivated farm, or other improved estate.
It is well established that wild land does not lose its character by being kept and used by its owners for the purpose of raising wood for profit. White v. Cutler, 17 Pick. 248. See Slater v. Jepherson, 6 Cush. 129; Morris v. Callanan, 105 Mass. 129. In my opinion the term "wild land," as defined by the court, would include forest land, with the possible exception that the term "forest lands" may include land planted and cultivated for the purpose of producing trees in sufficient numbers to con- stitute such land forest land.
Replying specifically to the first, second, tliird and fourth questions submitted by the Honorable House of Representa- tives, I am of opinion that the amendment as at present drafted would permit the enactment by the Legislature of taxation laws with reference to wood lots and woodlands, without regard to their size, so long as said wood lots or woodlands Avere wild or forest lands within the definition already made; that is. land in a state of nature, and uncultivated except for the purpose of producing wood and timber. It is to be observed that the amendment as at present drafted is permissive only, and, strictly speaking, cannot be said to include or exclude any par- ticular kind or class of wood lots or woodlands. The foregoing answer, however, is based on the assumption that the Honorable House of Representatives desires my opinion upon the question
534 OPINIONS OF THE ATTORNEY-GENERAL.
of whether or not said amendment would permit the enactment of laws which should include wood lots and woodlands without reference to their extent.
It has been held upon a writ of dower that wood and pasture land occupied as such and used in connection with a homestead should not be considered as wild and uncultivated land {Shat- tnck V. Gragg, 23 Pick. 88), and it is, in my opinion, at least doubtful if the term "wild or forest lands" would be held to include a tract of woodland located within fenced premises, of which the principal use was for pasturage. The question pre- sented is chiefly one of fact, to be determined by the circum- stances in each particular case. Speaking generally, however, and upon the assumption that the principal use of the tract is for pasturage, which is more or less inconsistent with the pro- duction and growth of forests, I am of opinion that the fifth question of the Honorable House of Representatives should be answered in the negative.
In respect to the sixth question of the Honorable House of Representatives, I have already stated that the courts of this Commonwealth have never established and defined the tech- nical signification of the term "wild or forest lands," and I am not aware nor have I been advised of any decision of a court of last resort in any other State which establishes a general legal signification of that precise term.
To the seventh inquiry submitted by the Honorable House of Representatives I reply as follows: the terms "standing wood" and "standing timber" have been frequently defined by courts of last resort in the several States, but such decisions have been directed to the construction of the respective terms in specific legislative enactments, in deeds or grants, or in con- tracts, and have defined such terms with reference to the con- text in which they are found and to the purpose which the instrument was designed to accomplish, and so do not estabHsh for them fixed and definite legal significations which would be applicable wherever the words may be found. Thus, for ex- ample, in Strout v. Harper, 72 Me. 270, where it was held that in a deed a reservation of "all the standing wood upon the lot,
JAMES M. SWIFT, ATTORNEY-GENERAL. 535
together with the right to enter and remove the same at any- time within three years," included trees suitable for timber as well as trees suitable only for fuel, the court saying (page 273) : —
Tme, the word "wood" is often used to designate fuel. But when so used it means fuel wholly, or, at least, partially, prepared for the fire. The term "standing wood" cannot be so used. It can apply only to trees. And when there is nothing ia the context, or in any other part of the deed, to indicate that it is used in a more hmited sense, we thuik it must be held to include all the trees, — trees suitable for tunber as well as those fit only for firewood.
x\nd see Shiffer v. Broadhead, 126 Penn. St. 260; Haskell v. Ayers, 35 Mich. 89; Wilson v. State, 17 Tex. App. 393; O'llan- lan V. Denvir, 81 Cal. 60; Domcorth v. Sawyer, 94 Me. 242. In this Commonwealth standing wood and timber are mentioned occasionally in the statutes. See R. L., c. 134, § 11; c. 208, § 7; St. 1869, c. 249. And more frequently in the decisions of the court. See White v. Foster, 102 Mass. 375; Drake v. Wells, 11 Allen, 141; Fletcher v. Livingston, 153 Mass. 388; Worthen v. Garno, 182 Mass. 243. But the term "standing wood and tim- ber" has not received, either in the statutes or in the opinions of the court, a fixed or technical definition of universal, or even of general, application.
The eighth inquiry of the Honorable House of Representa- tives is so phrased as to leave me in some doubt as to the exact question upon which my opinion is desired. Limiting my reply to the precise terms of said inquiry, however, I have to advise the Honorable House of Representatives that the proposed amendment, which would confer upon the General Court full power and authority to prescribe for wild or forest lands "such methods of taxation as will develop and conserve the forest resources of the Commonwealth," would doubtless authorize the enactment of laws to provide that wild or forest lands should be taxed without reference to the element of value contributed by the growth thereon, and that the tax upon the value of such growth might be reduced or altogether omitted in the deter- mination of the tax to be assessed upon said lands.
536 OPINIONS OF THE ATTORNEY-GENERAL.
Gypsy and Brown-tail Moths — State Forester — Work OF Destruction of Moths — Co-operation with Pri- vate Individuals — Supplies.
Under the pro\asions of St. 1905, c. 381, § 3, as amended by St. 1906, c. 268, § 1, and St. 1908, c. 591, § 1, providing that the superintendent for the suppression of the gypsy and brown-tail moth, among other things, "may act in co- operation with any person, persons, corporation or corporations, including other states, the United States or foreign governments," and "may devise, use and require all other lawful means of suppressing or preventing said moths," the State Forester, who succeeds to the powers of the superintendent for the suppression of the gypsy and brown-tail moth under the pro\'isions of St. 1909, c. 263, when actually engaged in the work of destroying such moths in a given locality may co-operate with adjacent landowners, who are carrying on work upon their own premises in conjunction with the public work, by furnishing them at cost supplies to be actually used in such work, or may authorize the local superintendent to furnish such supplies as his agent.
Forestef*^** Your letter of May 2 submits for my consideration an inquiry
May 13. ^^ to whether, under the provisions of St. 1905, c. 381, § 3, you
are authorized to permit local superintendents to sell supplies to property owners at cost, said supplies to be used only for the purpose of suppressing the gypsy and brown-tail moths on their own property. You state that with the approval of the Governor you have already established a supply store from which various articles used in the work of destroying the gypsy and brown-tail moths are furnished at cost prices to such cities and towns as are by law entitled to reimbursement from the Commonwealth.
The section of the statute to which you refer, as amended by St. 1906, c. 268, § 1, and St. 1908, c. 591, § 1, is as fol- lows : —
The said superintendent shall act for the commonwealth in suppressing said moths as public nuisances, in accordance with the provisions of this act. For this purpose he shall establish an office and keep a record of his doings and of his receipts and expenditures, and may, subject to the approval of the governor, make iniles and regulations governing all opera- tions by cities, to\\ais or individuals under this act. He may employ such clerks, assistants and agents, including expert advisers and inspectors, as he may deem necessary and as shall be approved by the governor. He may make contracts on behalf of the commonwealth ; may act in co-opera-
JAMES M. SWIFT, ATTORNEY-GENERAL. 537
tion with any person, persons, corporation or corporations, including other states, the United States or foreign governments; may conduct investiga- tions and accumulate and distribute inforaiation concernmg said moths; may devise, use and require all other la^n^ul means of suppressing or pre- venting said moths; may lease real estate when he deems it necessary, and, with the approval of the board in charge, may use any real or personal property of the commonwealth; may at all times enter upon the land of the commonwealth or of a municipality, corporation, or other owner or owners, and may use all reasonable means in carrjing out the purposes of this act; and, in the undertakings aforesaid, may, in accord- ance with the provisions of this act, expend the funds appropriated or donated therefor; but no expenditure shall be made or liability incurred in excess of such appropriations and . donations. The clerks, assistants and agents employed by said superintendent may at all times, in carrying out the purposes of this act, enter upon the land of the commonwealth or of a municipality, corporation or other o^\^ler or owners.
By St. 1909, c. 263, the powers of the superintendent for the destruction of gypsy and brown-tail moths were transferred to the State Forester.
The section quoted vests the State Forester with broad powers, and since, by St. 1905, c. 381, § 1, the pupae, nests, eggs and caterpillars of the gypsy and brown-tail moths, as well as the moths themselves, are declared to be public nuisances, I see no reason to doubt that, when actually engaged in the work of destroying such moths in any stage of their development in a given locality, you may co-operate with adjacent owners who are carrying on, or may desire to carry on, private work upon their own premises in conjunction with the public work by fur- nishing them at cost supplies to be actually used in such work, or may authorize a local superintendent to furnish them as your agent.
Upon the other hand, I am of opinion that nothing in the section should be construed to authorize the indiscriminate sale of such supphes to private individuals upon the mere assump- tion that they are to be used in connection with work upon the premises of such individuals, and that the proper and safe rule to follow in the premises, if such supplies are to be so fur- nished, is to require them to be used upon work which is closely
538 OPINIONS OF THE ATTORNEY-GENERAL.
connected with some public work of the same character, and which may be subject to the general supervision of the State Forester or his agents.
Constitutional Law — Appropriation of Money raised by Taxation — Public Purpose — Reclamation and Sale OF Wet Lands — Eminent Domain — Gratuity.
a proposed act providing, in substance, for the taking by eminent domain, at the assessed valuation thereof, of tracts of wet lands for the purpose of reclama- tion, which, after such taking and reclamation, are to be cultivated for two years by the State Board of Agriculture and then sold at a price not less than the cost of such land plus the cost of reclamation, one-half of any sums received in excess of such total cost to be awarded to the original owner or owners of the land sold, and appropriating therefor the sum of $10,000, might be held to contemplate the accomplishment of a public purpose which would warrant the exercise of the power of eminent domain and the appropriation of money raised by taxation, if, as matter of fact, the development and distribution for occupation of the land affected gave relief to a considerable and thickly settled agricultural region, and affected beneficially the com- munity as a whole, throughout such region, as well as individuals who acquired the land itself.
So much of such proposed act as provides that one-half of any sum received by the Commonwealth upon disposing of reclaimed land, in excess of the cost of the land plus the cost of reclamation, shall be awarded to the original owner or owners thereof authorizes a payment which is in the nature of a gratuity, and would therefore be unconstitutional.
TOgthe Senate. gy ^n Older dated April 25, 1912, the Honorable Senate has ^^fLi5" required my opinion upon the following questions of law: —
1. If the bill entitled "An Act to provide for protecting the public health and promoting the general welfare by the reclamation of wet lands," now pending in the Senate (printed as House No. 7, and amended by the Senate), should be enacted, would its provisions be constitutional?
2. Would it be constitutional to provide for the expenditure of $10,000 from the treasury of the Commonwealth for the taking and improving of wet lands by the State Board of Health and by the Board of Agriculture, and for the exemption from taxation of such lands so long as the title thereto remains in the Commonwealth ?
3. Is it possible that section 2, and especially the provisions of lines 6 and 7 of said section, providing that the rule of damages shall be the assessed valuation, would be unconstitutional ?
4. Is it possible that section 6, and especially the provisions of line 5 of said section, providing that the Commonwealth may take, own and operate deposits of marl and peat, would be unconstitutional?
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 539
The proposed act is entitled "An Act to provide for protect- ing the piibhc health and promoting the general welfare by the reclamation of wet lands," and is as follows: —
Section 1. The sum of ten thousand dollars is hereby appropriated, to be paid out of the treasury of the commonwealth from the ordinary .revenue of the current year, to constitute a fund called the Wet Lands Reclamation Fund, the same to be expended under the direction of the state boards of health and agriculture, in the manner and for the purpose hereinafter specified.
Section 2. The said board of health, with the approval of the governor and coimcil, may take for the purposes of this act any tract or tracts of wet lands of two or more adjacent owTiers, except salt marshes, together with such diy land, if any, as may be necessary for access thereto, by eminent domain, at the assessed valuation of said lands.
Any person aggrieved by a taking as aforesaid may have his damage assessed in the manner provided by law in respect to the taking of land for public parks.
Title to lands so taken shall pass to the commonwealth, and they shall be exempt from taxation until sold as hereinafter pro\aded.
Section 3. The said board, acting through such agent or agents as it shall appoint, shall proceed to drain and reclaim such lands, and for that purpose may purchase such machinery and equipments and execute such contracts, as the governor and council may approve, emploj'ing so far as may be practicable the labor of prisoners under regulations and conditions prescribed by the prison commissioners.
Section 4. When said lands, or any convenient part thereof, shall have been drained and reclaimed, the board of agricuUure shall cause the same to be cultivated for not less than two successive seasons, in such a manner as, in the opinion of the board, shall best demonstrate the value thereof for agricultural uses.
Section 5. The said board of agriculture shall thereafter, at such time or times as it shall deem expedient, offer such lands for sale, in whole or in part, at a price not less than the cost of the land plus the cost of re- claiming the same.
One half of any sums received m excess of such total cost, shall be awarded to the original owner or owners of the land sold, and the other half of such excess shall be turned in to the treasuiy of the commonwcaUh until the original appropriation shall have been refunded. The rcmaunng proceeds of such sales shall be returned to the reclamation fund, to be used for the reclamation of successive tracts in the manner hereinbcfoie provided.
Section 6. The town boards, actmg jointly, may, in their discretion, reser^^e from sale any tracts containing marl, peat, or other deposits of
540 OPINIONS OF THE ATTORNEY-GENERAL.
commercial value, by the exploitation of which the cost of reclaiming the remainder may be reduced; and may lease or operate such reserved por- tions in any manner approved by the governor and council. Section 7. This act shall take effect upon its passage.
The title of the bill recites that it is an act "to provide for protecting the public health and promoting the general wel- fare," but its provisions clearly contemplate not merely the exercise of the police power of the Commonwealth for the pres- ervation of the public health or safety, since, by its provisions, the exercise is required of the governmental powers of eminent domain and taxation (see §§ 1, 2). Nor is it an exercise of the police power in providing reasonable regulations for the general advantage of the owners of wet or swampy lands. See R. L., c. 195, §§ 1-16; Coomes v. Burt, 22 Pick. 422; Day v. Hurlhurt, 11 Met. 321; Sherman v. Tobey, 3 Allen, 7; Wurts V. Hoagland, 114 U. S. 606; Head v. Amoskeag Manfg. Co., 113 U. S. 9. Acts of this character are not designed to accom- plish a public pvirpose and do not involve an exercise either of the power of eminent domain or of the power of taxa- tion. Henry v. Thomas, 119 Mass. 583, 584; Lowell v. Boston, 111 Mass. 454. It is well established thfat these latter powers may be invoked only where the purpose to be accomplished is a public purpose. Lowell v. Boston, 111 Mass. 454, 462; Talbot v. Hudson, 16 Gray, 417; Opinion of the Justices, 182 Mass. 605, 607; Opinion of the Justices, 155 Mass. 598, 601.
The first and most important question presented by the several inquiries of the Honorable Senate is whether or not the purpose of the proposed bill is a public purpose. The purpose stated in the title, that of protecting the public health, is not conclusive, for the reason that the public health might well be protected under the police power without recourse either to the power of eminent domain or to the power of taxation, since, if conditions warranted it, the wet lands might well be declared a public nuisance, and so abated at the expense of the persons benefited (see 11. L., c. 75, §§ 75-85; Grace v. Board of Health of Newton, 135 Mass. 490), or might be abated under a statute
JAMES M. SWIFT, ATTORNEY-GENERAL. 541
like R. L., c. 195, §§ 1-16, upon the theory that all owners of contiguous property of this character were common proprietors and could be required to join in the work of reclamation and to pay a reasonable and proportionate part of the expense. It is obvious from a consideration of the bill, moreover, that the taking of lands for the purpose of drainage, the purchase of machinery for their development, and the experimental culti- vation to "demonstrate the value thereof for agricultural uses," are not in any sense reciuired for the protection of the public health, and that the primary, if not the only, object of the bill is to secure the reclamation of the lands and their development so far as may be necessary to make them marketable. The pur- pose of the act, then, may fairly be said to be the acquisition and development of wet lands so as to make them, after de- velopment, fit for profitable occupation by the people of the Commonwealth or such of the people as may have opportunity to acquire them.
The exercise of the power of eminent domain in connection with the drainage of wet lands has been sustained. See Coster V. Tide Water Co., 3 C. E. Green, 54, 518; State v. Blake, 7 Vroom, 447; Talhot v. Hudson, 16 Gray, 417. In the latter case the court sustained a statute (St. 1860, c. 211) which pro- vided that a considerable tract of land situated in different towns and held by a large number of owners, which Avas flooded by reason of a dam maintained by private persons, might be reclaimed by the removal of the dam by commissioners ap- pointed under the act, compensation being paid out of the treasury of the Commonwealth to the persons by whom the dam had been maintained. The court discusses at length whether or not the purpose for which the power of eminent domain was here exercised was a public purpose. Thus, at page 423: —
In many cases there can be no difficulty in detennining whether an appropriation of property is for a public or private use. If land i.s taken for a fort, a canal or a highway, it would clearly fall witliiu the first cla.ss; if it is transferred from one person to another or to several persons solely for their pecuUar benefit and advantage, it would as clearly come within
542 OPINIONS OF THE ATTOKNEY-GENERAL.
the second class. But there are intermediate cases where pubUc and pri- vate interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be properly said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must necessarily depend upon its own peculiar circum- stances. In the present case there can be no doubt that every owner of meadow land bordering on these rivers will be directly benefited to a greater or less extent by the reduction of the height of the plaintiffs' dam. The act is therefore in a certain sense for a private use, and enures directly to the individual advantage of such owners. But this is by no means a decisive test of its validity. Many enterprises of the highest public utility are productive of great and immediate benefits to individuals. A railroad or canal may largely enhance the value of private property situated at or near its termini; but it is not for that reason any less a pubhc work, for the construction of which private property may well be taken. We are therefore to look further in to the probable operation and effect of the statute in question, in order to ascertain whether some pubhc interest or benefit may not be likely to accrue from the execution of the power conferred by it upon the defendants. If any such can be found, then we are bound to suppose that the act was passed in order to effect it. We are not to judge of the wisdom or expediency of exercising the power to accomplish the object. The Legislature are the sole and exclusive judges whether the exigency exists which calls on them to exercise their authority to take private property. If a use in its nature public can be sub- served by the appropriation of a portion of the plaintiffs' dam in the manner provided by this act, it was clearly ,within the constitutional authority of the Legislature to take it, and in the absence of any declared purpose we must assume that it was taken for such legitimate and author- ized use.
The court, in sustaining the exercise of the power, referred to the statutes providing for the improvement of meadows, swamps and low lands as instances of the exercise of the power of eminent domain for purposes like that in the case at bar (page 428). The analogy, however, was denied in Lowell v. Boston, suyra (see page 468), although the case was followed upon the principal question, the court, in Lowell v. Boston, say- ing (page 470) : —
The main question was, whether the relief of an extensive territory of valuable lands, in a thicldy settled agricultural region, from the nuisance of flooding by the waters of a stream, caused by a single dam below, con-
JAMES M. SWIFT, ATTORNEY-GENERAL. 543
stituted such an object of public concern as to justify the exercise of the power by removing the dam. The court recognized the difficulty that, so far as the removal of the dam benefited each land owmer, it was a private use which would not justify the exercise of that power. But the obstruc- tion in the stream injuriously affected "so large a territor}% situated in different towois, and owaied by a great number of persons," as to give it the character of a pubhc nuisance, the removal of which "would seem to come fairly within the scope of legislative action." While we do not assent to the suggestions in that opinion, that the general provisions of law for the regulation of mills and the improvement of meadows are based upon the constitutional power to appropriate private property under the right of eminent domain, we accord fully with the judgment rendered and the general principle upon wliich it is founded.
If the use to which the property is to be put is a public use, the decision of the Legislature as to the necessity w'hich re- quires it to be taken is conclusive. Talbot v. Hudson, siqjra; Miller v. Fitchburg, 180 Mass. 32, 37. The question as to whether or not the use is a public one, however, must ultimately be decided by the court. Miller v. Fitchburg, siiyra, page 37, and cases cited. If the proposed bill benefits no one but the present or prospective owners of the land taken, or if the only benefit is in the profitable development and sale of the lands themselves, the purpose of the statute would not, in my opinion, be a public one. See Opinion of the Justices, 182 Mass. 605, 607; Opinion of the Justices, 155 Mass. 601. If, upon the other hand, the development and distribution for occupation of the lands affected gave relief to a considerable and thickly settled agricultural region, and aft'ected bene- ficially the community as a whole throughout such region, as well as the individuals who acquired the land itself, it would doubtless be held by the court to be a public purpose which would justify the exercise of the power of eminent domain. As I have stated, the ultimate decision is for the court, but with- out definite knowledge as to the land which may be afTected or the resulting benefits to the public as a whole, I am of opinion that I am not required to hold that the purpose of the act, as gathered from its provisions alone, would necessarily be un- constitutional.
k
544 OPINIONS OF THE ATTOKNEY-GENERAL.
The first question of the Honorable Senate, however, extends to and includes not only the general purpose of the act as stated in sections 1 and 2, but also matters of detail compre- hended in other provisions, and I am therefore constrained to call attention to the provisions of section 5, that one-half of any sums received by the Commonwealth, upon disposing of such lands, in excess of the cost of the land plus the cost of reclamation, shall be awarded to the original owner or owners of any such land sold; and to say that in my opinion such pro- vision is clearly unconstitutional. By section 2 it is provided that the State Board of Health, with the approval of the Gov- ernor and Council, may take by eminent domain any tract of wet land of two or more adjacent owners, at the assessed valuation thereof, and that any person aggrieved by a taking as aforesaid may have his damages assessed in the manner provided b}' law with respect to the taking of land for public parks, and that title to the land so taken shall pass to the Commonwealth. It is clear that upon such taking the title passes to the Common- wealth in fee, and the owner, having received compensation under the provisions of section 2, has no further right, title or interest in the land taken, and a payment to him of half of the sum received in excess of the cost and expense of development cannot be considered to be an expenditure of public money for a public purpose, since the Commonwealth receives nothing in return therefor, but would be in the nature of a gratuity. With respect to the specific provision just considered, therefore, I am of opinion that the proposed act is unconstitutional.
In reply to the second question of the Honorable Senate I should say that, assuming that the purpose for which the land is taken and the money appropriated was a public purpose within the principles discussed in considering the first inquiry of the Honorable Senate, the expenditure of $10,000 from the treasury of the Commonwealth and the exemption of the land from taxation, so long as the Commonwealth retains title, would be constitutional.
Replying to the third inquiry of the Honorable Senate in the precise terms of said inquiry, I am of opinion that it is
JAMES M. SWIFT, ATTORNEY-GENERAL. 545
possible that the provision of section 2, that the rule of damages shall be the assessed valuation, would be unconstitutional. In exercising the power of eminent domain the Legislature has no authority to designate an arbitrary amount which must be ac- cepted by the person whose land is taken as damages for the taking, or to prescribe rules or principles upon which damages shall be computed. See Monongahela Navigation Co. v. United ^tates, 148 U. S. 312; In re Opinion of the Justices, 66 N. H. 629; Neichiiryport Water Co. v. Neivburyport, 85 Fed. Rep. 723. If the provision of section 2 that "said board of health . . . may take . . . any tract or tracts of wet lands . . . by eminent domain, at the assessed valuation of said lands," is to be regarded as an assessment of the damages occasioned by said taking, it might well be found objectionable upon constitutional grounds. The designation of a fixed sum to be paid as damages for the taking of land by eminent domain, even where an al- ternative is provided by an appeal to a jury, is, so far as I am aware, without precedent; but if the amount so fixed may be regarded as an offer of settlement which may or may not be accepted by the person whose land is taken, and whose consti- tutional rights to a just compensation for his property are protected by a further provision that "any person aggrieved by a taking as aforesaid may have his damages assessed in the manner provided by law in respect to the taking of land for public parks," the constitutional requirement in the premises might be satisfied, since it is at least doubtful if any offer or award is required where provision is made for an ultimate determination of damages by a jury. See Hamlin v. New Bed- ford, 143 Mass. 192; Bent v. Evierij, 173 Mass. 495; St. 1898, c. 278, § 4. And see Attorney-General v. Old Colony Railroad, 160 Mass. 62, 90.
Again, replying in the precise phraseology of the fourth in- quiry of the Honorable Senate, it is, in my opinion, possible that section 6, and especially lines 5 and 6, would be unconsti- tutional. If the exploitation and operation of marl, peat or other deposits of commercial value would properly constitute an entrance bv the Commonwealth "as a competitor into the field
546 OPINIONS OF THE ATTORNEY-GENERAL.
of industrial enterprise, with a view either to the profit that could be made through the income to be derived from the busi- ness, or to the indirect gain that might result to purchasers if prices were reduced by governmental competition," it would clearly be unconstitutional. Opinion of the Justices, 182 Mass. 605, 607. If, on the other hand, such exploitation and opera- tion were merely temporary, undertaken in connection with the development of other adjacent or similar lands acquired for a public purpose, and were intended only for the purpose of reducing the cost of reclaiming the remainder of such land, such work might well be held to be a proper and incidental element of economy in the general work of reclamation.
Constitutional Law — Volunteer Militia — Adjutant General — Term of Office.
The provision of chapter II., section I., Article X. of the Constitution of the Commonwealth, that "the governor shall appoint the adjutant general," does not impose a limitation upon the authority of the General Court to fix and determine the tenure of office of the adjutant general, and a provision in a proposed act having for its purpose the revision of the organization of the volunteer militia, that "the term of office of the adjutant general shall be five j'^ears from the passage of this act," would not be unconstitutional.
Jf'^ReprSent- ^7 ^^ ordcr adoptcd by the Honorable House of Repre- ^*i9i2' sentatives on May 1, 1912, I am requested to inform the House
■ of Representatives whether in my opinion that provision of
House Bill No. 2221 entitled "An Act to revise the organi- zation of the Massachusetts Volunteer Militia," which provides that "the term of office of the adjutant general shall be five years from the passage of this act," is constitutional and legal.
The proposed act, which amends St. 1908, c. 604, § 12, by striking out the whole of said section and substituting a new section therefor, among other things provides that —
The military and administrative staff of the commander-in-chief shall consist of: —
The adjutant general, with the rank of brigadier general, who shall, ex officio, be chief of staff, such officers of the United States anny or navy
JAMES M. SWIFT, ATTORNEY-GENERAL. •>47
as may be detailed as assistant chiefs of staff, together with the chiefs of the inspector general's department, judge advocate general's department, quartermaster's department, subsistence department, pay department, medical department and ordnance department.
The terms of office of the chiefs of the above named departments shall be five years, as provided in chapter four hundred and forty-nine of the acts of the year nineteen huudi-ed and eleven (and the term of office of the adjutant general shall l^e five years from the passage of this act and he shall be ehgible for reappointment) .
The existing provision upon the subject is to be found in St. 1908, c. 604, § 12: —
The staff of the commander-in-chief shall consist of: —
1 adjutant general, with the rank of brigadier general, who shall, ex-officio,
be chief of staff; 1 assistant adjutant general, with the rank of colonel; 4 aides-de-camp, each with the rank of major; 6 aides-de-camp, to be selected from the <3ommissioned officers of the
Massachusetts volunteer militia, but not to be relieved from duty
with their organizations while serving in this capacity.
In time of war the commander-in-chief may appoint such additional staff officers as the service may require, with such rank, not higher than that of colonel, as he may designate. The above staff officers, excepting the detailed aides-de-camp, shall be commissioned and hold office until their successors are appointed and qualified, but they may be removed at any time by the commander-in-chief.
The precise inquiry of the Honorable House of Representa- tives is, therefore, in substance, whether or not the General Court may provide a fixed and definite term of office for the adjutant general of the volunteer militia.
The pertinent provisions of the Constitution are contained in chapter II., section 1, dealing with the powers and prerogatives of the Governor. Article VII. constitutes the Governor the commander-in-chief of the army and navy, and of all military forces of the State, by sea and land, and vests in him full power, by himself, or by any commander, or other officer or ofiicers,
548 OPINIONS OF THE ATTOKNEY-GENERAL.
from time to time, to train, instruct, exercise and govern the militia and navy. Article X. provides —
The captains and subalterns of the miUtia shall be elected by the wa-itten votes of the train-band and alann hst of their respective companies, the field officers of regiments shall be elected by the written votes of the captains and subalterns of their respective regiments; the brigadiers shall be elected, in hke manner, by the field officers of their respective brigades; and such officers, so elected, shall be commissioned by the governor, who shall determine their rank.
The legislature shall, by standing laws, direct the time and manner of convening the electors, and of collecting votes, and of certifying to the governor, the officers elected.
The major-generals shall be appointed by the senate and house of representatives, each having a negative upon the other; and be com- missioned by the governor.
And if the electors of brigadiers, field officers, captains or subalterns, shall neglect or refuse to make such elections, after being duly notified, according to the laws for the time being, then the governor, with the advice of council, shall appoint suitable persons to fill such offices.
The commanding officers of regiments shall appoint their adjutants and quartermasters; the brigadiers their brigade-majors; and the major- generals their aids; and the governor shall appoint the adjutant- general.
The governor, with ad^dce of council, shall appoint all officers of the continental army, whom by the confederation of the United States it is provided that this commonwealth shall appoint, as also all officers of forts and garrisons.
'The di^asions of the militia into brigades, regiments, and companies, made in pursuance of the militia laws now in force, shall be considered as the proper divisions of the militia of this commonwealth, until the same shall be altered in pursuance of some future law.
I am advised that doubt has arisen as to the power of the Legislature to create a fixed term of office for the adjutant gen- eral, in view of the arrangement and language of the provisions of the Constitution above cited and of the distinction which seems to be made between officers of the militia who are commissioned to command and officers who are appointed adju- tants, quartermasters, brigade-majors and aids to major-gen- erals, wuth whom the adjutant general is included in Article
JAMES M. SWIFT, ATTORNEY-GENERAL. .>i9
X., and it is suggested that from the relation between an adjutant and his commanding officer, a brigade-major and his brigadier, an aid and his commanding general, and the adjutant general and the commander-in-chief, a constitutional right is to be inferred which is vested in the Governor, as commander- in-chief, and in a major-general, brigadier or regimental com- mander to appoint as adjutant general, aid, brigade-major, adjutant or quartermaster, such eligible person as he may de- sire, and that it would be in contravention of such constitutional right to provide a fixed term of office for any of these officers. The relations between a commanding officer and his personal staff are doubtless so intimate and of such a character as to render it desirable that such commanding officer should exercise his personal judgment in the selection of the members of his staff, and military custom appears to have recognized the pro- priety of such action by the commanding officer in requiring as matter of etiquette, upon a change of commanders, a voluntary tender of the resignations of members of the staff of his pred- ecessor. This custom has been at times recognized in the statutes relating to the organization of the militia. (See R. S., c. 12, § 73.) It does not follow, however, that the existence of such a custom, or even a recognition of it in the Constitution in the apparent distinction between officers of the militia elected to command and officers appointed to positions upon the staff of a commanding officer, if such distinction amounts to recogni- tion, must be given the force of a constitutional restriction upon the power of the General Court to deal with the term or teiuire of staff appointments, or regarded as creating a modification, in the case of such appointments, of the well-recognized principle that where an office is established by the Constitution without provision as to the term or duty thereof the latter may be al- tered, enlarged or modified in such manner as the Legislature may deem to be for the public interest. Opinion of the Jus- tices, 117 Mass. 603; Wales v. Belcher, 3 Tick. 508; see Taft v. Adams, 3 Gray, 126; Const, of Mass., c. 1, § 1, Art. IV.
A careful consideration of the provisions of the Constitution which are material to this question discloses no intention upon
550 OPINIONS OF THE ATTORNEY-GENERAL.
the part of the framers thereof to impose a hmitation upon the power of the General Court to fix and determine the tenure of oflfice of the adjutant generah Upon the contrary, the Jour- nal of the Convention for Massachusetts Bay, 1779-80, shows that in discussing the paragraph dealing with staff appoint- ments, which was afterwards adopted, it was suggested that the words "during pleasure" be inserted, and that the sugges- tion was thereafter withdrawn and the paragraph accepted in its present form. The purpose of the suggestion, and the meaning of the words "during pleasure," may be illustrated by quoting from the constitution, submitted to the people by the General Court of 1777-78 and rejected by popular vote, a pro- vision found in the 26th clause that "the Attorney-General, Sheriffs, Registers of the Courts of Probate, Coroners, Notaries Public, and Naval Officers, shall be appointed and hold their offices during pleasure." The convention, therefore, upon con- sideration and with intention, omitted from the clause of the Constitution which relates to the appointment of staft' officers any express provision for the limitation which it is now argued must by implication be read into said clause.
The early statutes which deal with the organization of the volunteer militia contain no provision from which may be in- ferred a recognition that the tenure of office of either the adjutant general or any other staff officer was to be during the pleasure of his commanding officer (see St. 1809, c. 108); and it is significant that the earliest provision relative to the discharge or removal of staff officers (St. 1821, c. 92, § 16) was enacted after the adoption in 1821 of Article IV. of the Amendments to the Constitution, which, in part, provided that —
All officers commissioned to command in the militia may be removed from office in such manner as the legislature may, by law, prescribe —
and superseded a provision that —
No officer, duly commissioned to command in the militia, shall be re- moved from his office, but by address of both houses to the governor, or
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 551
by fair trial in court-martial, pursuant to the laws of the commonwealth for the time being —
and at the time when the Legislature first assumed and exer- cised the authority to provide for the discharge of militia oflBcers in a manner other than by fair trial in court-martial, or by address of both houses to the Governor. See St. 1821, c. 32, § 1; St. 1835, c. 144, §§ 2, 3; R. S., c. 12, §§ G7-73.
INIoreover, there is nothing in the language of the constitu- tional provision itself which requires a construction inconsistent with an authority in the Legislature to determine the term of office of the adjutant general or of any other staff officer (see Avery v. Inhabitants of Tyringham, 3 Mass. 160), and in at least one instance such power has been exercised by the Legis- lature by providing, in Gen. Sts., c. 13, § 62, that "the adju- tant general shall hold his office for the term of one year," subject to removal at any time by the commander-in-chief. And see St. 1912, c. 268; St. 1911, c. 449.
For the reasons above stated, therefore, I am of opinion that the provision of House Bill No. 2221, that the term of office of the adjutant general shall be five years from the passage thereof, would not be unconstitutional.
i
552 OPINIONS OF THE ATTORNEY-GENERAL.
Constitutional Law — Governor — Veto — Duty to re- turn Bill with Objections thereto in Writing to the Branch in which it originated — Return — Limit of Time.
Where certain bills, due under the proAdsions of Article II. of Section I. of Chapter I. of the Constitution of the Commonwealth to be returned on May 27 by the Governor, with his objections thereto in writing, to the House of Rep- resentatives, in which branch such bills originated, were found, on the morning of May 28, on the desk of the clerk of the House of Representatives, and the speaker of the House of Representatives, on a point of order, riiled that the vetoes were not properly returned until received by the clerk at 8 o'clock upon the morning of May 28, and such bills were transmitted by the clerk to the Secretary of the Commonwealth, with a statement of the above facts, it is not the duty of the Secretary to determine whether or not such bills were seasonably returned, and he should receive and record them among the laws of the current year, leaving the question of their validity to be determined by the proper tribunal.
It would seem, however, that the duty devolving upon the Governor under the provisions of Article II. of Section I. of Chapter I. of the Constitution, if he has objection, to return a bill or resolve within the prescribed period of time to the branch of the Legislature in which it originated, should be per- formed with sufficient formality to insure that the return shall be made to some proper officer of the Senate or House of Representatives, as the case may be, if the branch to which the bill or resolve and the objections are sent is not in session, i
se°critlry ^^'^ dcsire ihv opinion as to whether or not it is your duty
junl^. to receive certain bills transmitted to yoii by the clerk of the
House of Representatives under circumstances which appear from a communication accompanying said bills to be as fol- lows : —
These acts and resolve were found on the desk of the clerk of the House of Representatives on the morning of Tuesday, May 28, last. They were due to be returned by His Excellency the Governor to the House of Repre- sentatives, m which branch they originated, with his objections thereto in writing, on Monday, May 27.
At the session of the House on Tuesday, May 28, the speaker called the attention of the House to the fact that these bills and resolve had been found on the desk of the clerk of the House that morning.
A point of order was raised that the bills and resolve and veto messages were not properly before the House of Representatives, not having been
» See Tuttle v. Boston, 215 Mass. 57.
JAMES M. SWIFT, ATTORNEY-GENERAL. 553
retui'ned by the Governor within the five days allowed under Article II. of Section I. of Chapter I. of the Constitution.
On tliis point of order the speaker ruled as follows: "the vetoes were without question returned after the clerk's office was closed on the last day during which, under Ai'ticle II. of Section I. of Chapter I. of the Con- stitution, three of the vetoes should apparently have been returned. There is no official record whether the vetoes were left in the clerk's office before or after midnight. The chair, therefore rules that simply lea\'ing the papers in the clerk's office after it is closed is not such a return to the House of Representatives of the bills and resolves, with liis objections thereto in writing, as is required by the Constitution, as the House can take cognizance of; and that tliree of the vetoes were not properly re- tm-ncd until received by the clerk at 8 o'clock this morning."
It is the duty of the Secretary of the Commonwealth, under the provisions of R. L., c. 9, § 1 —
at the close of each session of the general court, [to] collate and cause to be printed in one volume, in style and arrangement as heretofore, the constitution of the commonwealth, the acts and resolves passed, any amendments to the constitution agreed to during such session, the gov- ernor's address and messages, a hst of the changes of names returned dm-ing the preceding year by the probate courts, a list of the officers of the civil government of the commonwealth, a table of changes in the general laws, and an index.
I assume, therefore, that your inquiry, in substance, requires my opinion as to whether or not you shall receive for record, and include in the collated and printed volume of the acts and resolves for the current year, the two bills and the resolve trans- mitted to you in the manner hereinbefore described.
The ruling of the speaker, already quoted, appears to be based upon the fact that there was before him " no official rec- ord whether the vetoes were left in the clerk's office before or after midnight;" but the absence of such record is not, in my opinion, conclusive, for if the placing of the bills and the resolve upon the desk of the clerk of the House of Representatives dur- ing the absence of the clerk and after his office was closed f.^r business is a sufficient compliance with the constitutional pro- vision that the Executive shall return such bills and resolve,
554 OPINIONS OF THE ATTORNEY-GENERAL.
together with his objectiGns thereto in writing, to the branch of the Legislature in which they originated, the hour or moment when they were placed there may be established by competent proof. Gardner v. The Collector, 6 Wall. (U. S.) 499, 511. And see United States v. Allen, 36 Fed. Rep. 174; Lyons v. Woodsj 153 U. S. 649, 663.
Since the fact, if it be a fact, may be established by proper evidence, I shall assume for the purposes of your inquiry that the several bills and resolve were placed upon the desk of the clerk of the House of Representatives before midnight on Mon- day, May 27, and within the period allowed therefor by the Constitution. The present status of the bills and the resolve in question, therefore, must depend upon whether or not they have been duly "returned" to the House of Representatives.
The provision of the Constitution which is material in the premises is Article H. of Section I. of Chapter I. of Part the Second of the Constitution, which I quote : —
No biU or resolve of the senate or house of representatives shall become a law, and have force as such until it shaU have been laid before the gov- ernor for his revisal; and if he, upon such revision, approve thereof, he shall signify his approbation by signing the same. But if he have any objection to the passing of such biU or resolve, he shall return the same, together with his objections thereto, in writing, to the' senate or house of repre- sentatives, in whichsoever the same shall have originated; who shall enter the objections sent down by the governor, at large, on their records, and proceed to reconsider the said bill or resolve. But if after such reconsidera- tion, two-thirds of the said senate or house of representatives, shall, not- withstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by two-thirds of the members present, shall have the force of a law; but in aU such cases, the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for, or against, the said bill or resolve, shall be entered upon the public records of the commonwealth.
And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law.
It has been held that a bill can be laid before the Governor only by being presented to him personally. So in Opinion of
JAMES M. SWIFT, ATTORNEY-GENERAL. 555
the Justices, 99 Mass. 636, in reply to an inquiry of the House of Representatives as to whether a bill transmitted by the Sen- ate to the Secretary of the Commonwealth during a temporary absence of the Governor from the Commonwealth was properly "laid before" the Governor prior to his return, the court said : —
As the duty of revisal by the Governor is a personal duty, with which he alone is intrusted when his chair is not vacant, it is necessary^ that the bill should be laid before him personally. A bill is not laid before him or presented to him, within the meaning and intent of these pro\'isions, by being sent from the Senate to the Secretary of the Commonwealth. The Constitution makes the Secretary an independent officer, and prescribes his duties; and liis possession of a bill sent by the Senate to be presented to the Governor is not the possession of the Governor.
A bill must be laid before the Governor, or the person who, for the time being, is clothed with the powers of Governor under the Constitution, for his revision. The individual whose duty it is to sign the bill is entitled to have it before him, that he may have the opportunity to sign it or return it with his objections thereto to the branch of the Legislature in which it originated. This bill does not appear to have been so presented to any one, except by the statement that it was returned uasigncd on the 19th, 'ftith the Governor's objections.
This opinion is cited with approval in FcinceU v. Boston, 192 Mass. 15, 19. In the latter case the then charter of the city of Boston (St. 1854, c. 448, § 47) required an ordinance, order, resolution or vote to be presented to the mayor, and pro- vided that if such ordinance, order, resolution or vote "shall not be returned by the mayor within ten days after it shall have been presented the same shall be in force; " and it was held that leaving a vote with a clerk in the mayor's office, in the absence of the mayor, was not a presentation to that officer within the meaning of the provision above quoted.
Beyond holding, in Opinion of the Justices, 135 Mass. 594, that the Governor is not required to deliver a bill or resolve in person, the courts of this Commonwealth do not appear to have defined what constitutes returning a bill or resolve to the branch of the Legislature in which it originated. In that opinion it is said that the delivery by the Governor "of the message to
I
556 OPINIONS OF THE ATTORNEY-GENERAL.
the private secretary, who is an ofRcer provided for by statute, and the proper organ of communication with the Legislature, with directions to have it sent down, was the first step in its transmission to the House." In the case of Harpending v. Haight, 39 Cal. 189, however, the meaning of the word in a provision of the constitution of Cahfornia that "if any bill shall not be returned within ten days after it shall have been presented to him (the governor) . . . the same shall be a law, in like manner as if he had signed it, unless the Legislature, by adjournment, prevent such return," was discussed at great length. It there appeared that on the last day of the pre- scribed period the Governor, by his messenger, sent to the Senate a bill which he had declined to sign, with his objections thereto in writing. LTpon arriving at the Senate chamber, however, the messenger discovered that the Senate had ad- journed until the following morning, and immediately returned both the bill and the message to the Governor without attempt- ing to deliver them to the Senate or to deposit them with any officer of the Senate or with any other person for its use, and they were thereafter retained by the Governor. After referring to the constitutional requirement that a bill must, before be- coming a law, be "presented to the Governor," the court says, at page 199: —
And so, upon the other hand, when we come to consider the correspond- ing duty of the Executive to "return" the bill to the Senate in this case, we know by attending to the results to be brought about by such "return" that it must be a step taken by which his own time for deUberation is ended and that for the deUberation of the Senate is begun; that the bill itself must be put beyond the Executive possession; that it must be placed into the possession, actual or potential, of the Senate itseK; and that, as part of this return, the Executive objections to the passage of the bill must be stated.
And again, at page 203 : —
It was the duty of the messenger to communicate to the Senate the message which he bore from the Executive on that occasion. This was to be done in the most direct mamier that circumstances would permit.
JAMES M. SAVIFT, ATTORNEY-GENERAL. 557
It was impossible for him to immediately aimounce it to the Senate, for that body was not in session. It had a right to be in recess, if it desired so to be, and it was not in the power of the Executive or his messenger to recall it to its sittings. But its right to be in recess was no greater or higher than was the right of the Executive to return the bill in question for its reconsideration; nor is there any reason why the free exercise of these admitted rights upon the part of the Senate and Governor, respec- tively, should bring them into coUision. The Senate has the unqualified, constitutional power to adjourn for three consecutive days. (Art. IV., Sec. 15, Constitution.) It must often happen that these three days will include the last day allowed the Executive for the exercise of the veto power against the passage of a particular Senate bill.
Now, if the mere fact of the recess of the Senate, thus constitutionally taken, does operate to defeat, in a measure, the exercise of the veto power conferred on the Executive by the Constitution, then we have the strange spectacle of an irreconcilable conflict between the several clauses of that instrument itself, by which the Senate, by the mere exercise of its own admitted constitutional authority to adjourn, violates the equally clear constitutional right of the Executive to have it kept in session.
We are of opinion that the adjom-nment of the Senate on March 31 did not cm-tail the veto power of the Executive over the bill in question, nor should it even have emban-assed him in its exercise. The return should have "been made in such manner as the circumstances would permit; it should, at all events, have left the bill and message be3'ond the Executive control, and, if need be, in the immediate custody of some proper person who would be Hkely to dehver it to the Senate at the first opi^ortunity. The best return that the circumstances would admit, would, in our judg- ment, be a proper return. The maxim lex non cogit ad impossibilia would be apphcable to such a condition of affairs. We know of no other rule, either, upon which the clear right of the Governor to make the return to the Senate can be reconciled ^ith the equally clear right of the Senate to be in recess at the time.
If the requirement of the Constitution that, before becoming a law- a bill or resolve must be laid before the Governor for his revisal, can be met only by laying such bill or resolve before bim personally, it would seem that the corresponding duty de- volving upon the Governor, if he has objection, to return such bill or resolve within five days to the branch of the Legishiture in which it originated, should be performed with .sufficient formality to insure that the return shall be made to some proper officer of the Senate or House of Representatives, as the case
558 OPINIONS OF THE ATTORNEY-GENERAL.
may be, if the body to which the bill or resolve and the objec- tions are sent down is not in session. See Opinion of the Justices, 45 N. H. 607, 610. Or at least to "the immediate custody of some proper person who would be likely to deliver it ... at the first opportunity." See Harpending v. Haight, supra, p. 204.
In the case here under consideration, if a decision upon this point were required by the inquiry submitted to me, I should be inclined to accept the principles laid down in the cases cited, and to hold that upon the facts before me the bills and the resolve transmitted to you by the clerk of the House of Repre- sentatives were not returned to that body before midnight on May 27, and therefore were not returned within the five days allowed therefor by the Constitution.
I am of opinion, however, that I am not required to pass upon this question. The bills and the resolve to which your in- quiry is directed were transmitted to you by the clerk of the House of Representatives, and are in your possession and cus- tody as the recording officer of the Commonwealth and the custodian of its records; and you are officially advised that the House of Representatives, in which they originated and to which they should have been returned ]by the Executive, has declined to receive them, upon the ground that they were not seasonably returned to it. Under these circumstances it is not the duty of the Secretary to determine whether or not the bills and the resolve in question were in fact returned, or w^iether or not the action of the House was warranted in the premises. He should be guided by the official record of the facts, and receive and record the several bills and the resolve among the laws of the current year, leaving the question of their validity to be determined by the proper tribunal.
JAMES M. SWIFT, ATTORNEY-GENERAL. 559
CouxTY Treasurers — Pa Y^iENTS — Approv \L of Bill or Order — Duty to ascertain Legality of Expendi- tures.
Under the pro-vdsions of R. L., c. 21, § 8, that "each county treasurer shall collect, receive and safely keep all money belonging to the county, and pay out the same in accordance with law," it is the duty of a countj' treasurer to ascertain whether or not a paj-ment which he is called upon to make, by an order or bill duly approved by the countj- commissioners, may be made by him ac- cording to law, and he is therefore required to satisfy himself that the expense for which payment is to be made was legally incurred in the first instance.
In a letter dated May 13 you state that certain payments by To the
1 • 1 "if 11 p 1 1 • ' Controller
county treasurers, which are irregular bv reason oi there beiiiK ofCounty
, , Acrounts.
no legal authority for their payment," have come to vour at- ,*''*'-,o
o ^ L- >, J .. June 12.
tention, and that with reference to such payments "the claim made by certain treasurers is that their only liability is under chapter 21, sections 12 and 17 of the Revised Laws, and that whatever bill comes to them, approved by the commissioners, is for them to pay, unquestioned," and you desire my opinion "as to whether the treasurer is responsible for all improper payments made by him, or, if his responsibility is limited by law, just what that limitation is."
The duty of a county treasurer as defined by 11. L., c. 21, § S, is as follows : —
Each county treasurer shall collect, receive and safely keep all money belonging to the county, and pay out the same in accordance with law; but he shall not pay money to the county commissioners or associate commissioners to be disbursed by them in behalf of the county.
Section 9 provides that —
No pajanents, except of expenses in criminal prosecutions, of expenses of the coui-ts, of the compensation or salaries of county officers cstal)li.shed by law, of outstanding notes or bonds and of interest thereon, shall be made by a treasurer except upon orders drawn and signed by a majority of the county commissioners, certified by their clerk and accompanied, except in the county of Suffolk, by the original bills, vouchers or evidenca'j of county indebtedness for which payment is ordered, stating m detail
1
560 OPINIONS OF THE ATTORNEY-GENERAL.
the items and confirming such bill or account. Said clerk shall not certify such orders until he has recorded them in the records of the county com- missioners.
Section 12 provides in part that —
The county treasurer may, before pajTnent of an account rendered against the county by a county officer, in writing require of him a ^\Titten statement of the specific provision of law authorizing it. Said statement shall be filled with the vouchers. The treasurer shaU be personally hable for money paid out by him, except pajnnents specifically required by law, unless there is an unexpended balance of an appropriation made for the purpose sufficient for such payment, and he shall be personally hable for any money paid by him without the voucher and certificate required by law, except as proidded in section thirty-four.
The county treasurer is chiefly a disbursing officer. Most of the payments made by him are made upon orders issued by the county commissioners or upon bills audited or allowed by said commissioners or other public officers. See St. 1907, c. 170; R. L., c. 158, § 8; R. L., c. 157, §§ 16, 17. In so far as the expenses for the payment of which such orders are issued or bills approved are incurred for purposes for which expense may legally be incurred, I am of opinion tha| the county treasurer may exercise no discretion, and may make payment without in- curring responsibility in the premises. Upon the other hand, it is clearly the duty of the county treasurer to ascertain whether or not a payment which he is called upon to make by an order or by a bill duly approved may be made by him accord- ing to law, and this necessarily requires him to satisfy himself that the expense for w^hich the payment is to be made was legally incurred in the first instance, and for this purpose he may require a written statement of the specific provision of law by which any such expense was authorized. See R. L., c. 21, § 12. If, upon the face of the record presented by the voucher or certificate, it clearly appears that there is no legal warrant for the expenditures, no order of the county com- missioners or no approval by them or by any public officer of charges so incurred is sufficient to warrant the payment.
I
JAMES M. SWIFT, ATTORNEY-GENERAL. 5(31
Veteran — Commissioned Officer — Gratuity — Attorney — Fee.
St. 1912, c. 702, which in section 1 provides for a gratuity of $125 "for those veteran soldiers and sailors who volunteered their services in the civil war," and in section 2 provides that such gratuity "shall be paid to every person or his legal representatives . . . who served in the army or na^'y of the United States to the credit of the commonwealth during the ci\-il war, ..." includes commissioned officers as well as enlisted men.
The Commission on Gratuities, established by section 3 of St. 1912, c. 702, is not required to make or to secure payment of the fee prescribed by section 6 to any attorney or other person entitled thereto for the prosecution of a claim for a gratuity under such statute.
By a communication dated July 2, 1912, you request my TotheCom-
• • • r> ' 1 1 -•'■./->■<<-. " ^ mission on
opinion upon two questions; nrst, whether bt. 1912, c. /()2, Gratuities, entitled "An Act to provide for suitably rewarding certain Juiy_8. veteran soldiers and sailors" should be construed to include officers; and second, whether, under the provisions of section 6, it is the duty of the commission to pay the fee therein pro\ided for.
The act above cited provides, in section 1, that —
For the purpose of promoting the spirit of loyalty and patrioti-sm, and in recognition of the sacrifice made both for the commonwealth and for the United States by those veteran soldiers and sailors who volunteered their services in the ci\dl war, and for the purpose of promoting the public weKare, by giving visible evidence to this generation and future genera- tions that, if danger should again threaten the nation and the call should again come for men, Massachusetts will not forget the great ser^nce of those who volunteer, a gratuity of one hundred and twenty-five dollars to each veteran is hereby authorized to be paid from the treasur}- of the commonwealth under the conditions hereinafter set forth.
Section 2 is as follows: —
The gratuity herein provided for shall be paid to ever}- person, or his legal representatives, not being a conscript or a substitute, and not ha\nng received a bounty from the commonwealth or from any city or town therein, who served in the army or na\T of the United States to the credit of the commonwealth during the civil war, and was honorably discharged from such ser\'ice, and is li^-ing at the time of the passage of this act;
562 OPINIONS OF THE ATTORNEY-GENERAL.
it being intended and provided that the said gift shall not be a bounty, nor a payment in equalization of bounties, nor a payment for services rendered, nor a payment for the purpose of making the result of their contracts of enlistment more favorable to them because the contracts of other soldiers were on better terms, but a testimonial for meritorious service such as the commonwealth may rightly give, and such as her sons may honorably accept and receive.
The latter section in terms provides that the gratuity "shall be paid to every person . . . not being a conscript or a substi- tute, and not having received a bounty from the commonwealth or from any city or town therein, who served in the army or navy of the United States to the credit of the commonwealth during the civil war, and was honorably discharged from such service, and is living at the time of the passage of this act." If, therefore, an officer can satisfy the commission that, not being a conscript or a substitute, he has served in the army or navy of the United States to the credit of the Commonwealth during the civil war, and has been honorably discharged from service, I am of opinion that he would be entitled to receive the gratuity, notwithstanding that bounties were in the first in- stance payable only to enlisted men. See St. 1864, cc. 48, 143, 211. The present statute does not contemplate that the payment of a gratuity under its terms shall be in lieu of bounty.
With respect to your second question, I am of opinion that the commission is not required to make payments to an at- torney or other person entitled thereto for the prosecution of a claim under the statute. Section 6, to which your communica- tion refers, is as follows: —
The fee for the prosecution of a claim under this act shall not exceed the sum of five dollars; and the fee agreed upon between the parties, not exceeding the said amount, shall be paid to the attorney or other person entitled thereto out of the amount allowed on the certificate of the com- mission allowing the same. Any attorney or other person who demands or receives for his services any greater compensation than the sum above specified shall be guilty of a misdemeanor, and shall for every such offence be punished by a fine not exceeding one hundred dollars or by imprison-
JAMES M. SWIFT, ATTORNEY-GENERAL. .5(13
ment at hard labor for a term not exceeding six months, or by l^otii such fine and imprisonment.
There is nothing in this section to impose upon the commis- sion the duty to secure payment of the fee named therein to the attorney or other person who may be entitled to it.
License — Keeper of Hospital for Insane or Feeble- minded — Suitable Person — Partnership.
Under the provisions of St. 1909, c. 504, § 24, that "the governor and council may, upon the recommendation of the state board of insanity, license any suitable person to establish and keep a hospital or private house for the care and treatment of the insane, epileptic, feeble-minded, and persons addicted to the intemperate use of narcotics or stimulants" a license may not be granted to a partnership as such.
In behalf of the State Board of Insanity you have requested J^'e Board my opinion upon the following question: — °' m"^^'
August 13.
Whether under section 24, chapter 504, Acts of 1909, the State Board of Insanity is limited in its recommendations to individuals or whether it can recommend that licenses be granted to partnerships.
The section of the statute referred to provides as follows: —
The governor and council may, upon the recommendation of the state board of insanity, hcense any suitable person to estabUsh and keep a hospital or private house for the care and treatment of the insane, epileptic, feeble-minded, and persons addicted to the intemperate use of narcotics or stimulants, and may at any time revoke such license. No such recom- mendation shall be made unless the said board is satisfied that the person applymg therefor is a duly qualified physician, as provided in section thirty-two, and has had practical experience in the care and treatment of such patients. Any person owning or maintaining such a hospital or private house on the date of the passage of this act shall be entitled to maintain the same under the provisions of law in force at that time, except that every such hospital or house shaU be subject to the \'isitation and supervision of the state board of insanity.
The word "person," as used in different statutes, varies much in the comprehensiveness of its scope, and its meaning in any
564 OPINIONS OF THE ATTORNEY-GENERAL.
particular statute must usually be determined by the context and by consideration of the object of the statute in which it is used. It has sometimes been construed as including a corpora- tion, an artificial person, and as used in some statutes it has undoubtedly been sometimes held to include a copartnership.
Considering the word as it is used in the statute in question with reference to its context and with reference to the purpose of the statute, the term "suitable person" and the term "the person applying therefor" in my opinion are to be considered as referring to one and the same person, and since the Board, in order to make its recommendation to the Governor and Council, must state that the applicant for a license in addition to being otherwise "suitable" is "a duly qualified physician, as provided in section thirty-two," it becomes clear that the word "person" was not intended to include a partnership as such, since a partnership cannot be "a duly qualified physician."
Considering the meaning of the word with reference to the clear purpose of the statute leads to the same conclusion. The provisions of law requiring the license as a prerequisite to the right to establish or keep such a hospital as is described in the act were obviously to keep the control and management of such hospitals under only such physicians as were deemed by the Board to be suitable and duly qualified to conduct them.
If the word "person" were to be construed to include a part- nership, and if the words "person applying therefor" were to be construed as requiring simply that the one member of the partnership who made the application should be a duly qualified physician, the result would be not only that the application in the name of the physician Avould not in fact be the application of the partnership, but also the very object of the law might be defeated because the physician might be the only physician among the partners, or might be merely a nominal or silent partner, or one of several partners having only an insignificant part of the management of the hospital. In a previous opinion to the Board I have advised that the only person entitled to be licensed under the statute referred to was the responsible head of such hospital or private house, that is, "the one who exer-
JAMES M. SWIFT, ATTORNEY-GENERAL. 0<i.l
cises control or proprietorship of it." Ante. p. 359; Common- wealth V. Kimhall, 105 Mass. 465, 467.
The opinion above expressed is, however, not to be construed as holding that duly licensed individuals may not lawfully form a partnership for the purpose of establishing or keeping sucli a hospital. In other words, while your Board is, in my opinion, not authorized to recommend for license a partnership, but must limit its recommendations to individuals, the law does not ap- pear to forbid the formation of a partnership by individuals, each of whom is a duly qualified physician, and each of whom has been deemed suitable to establish and keep such a hospital by your Board, and each of w'hom has been duly licensed as an individual for such work.
Town — Indebtedness for Water Supply — Vote.
A tow-n which has accepted by a two-thirds vote an act authorizing it to supply itself and inhabitants with water, may incur indebtedness therefor only by compliance with the provision of R. L., c. 27, § 8, which requires a vote of two-thirds of the voters present and voting at a town meeting to authorize incurring indebtedness for such purpose.
You have requested mv opinion as to "whether a town to the Deputy which accepts by a two-thirds vote an act authorizing it to b^";«;^^^^' supply itself and inhabitants with water may incur debt there- ^j^^m2 ^^ for without being required to comply with the provisions of R. L., c. 27, § 8, which makes necessary a two-thirds vote in order that it may incur debt for such a purpose," and you have informed me orally that your inquiry is made with a specml reference to the town of Merrimac, which, by St. 19()3, c. 281, was authorized to supply itself and its inhabitants with water.
Section 6 of that act is as follows: —
Said town may, for the purpose of paying the necessary expenses and UabiUties mcurred under the provasions of this act, issue from time to time bonds, notes or scrip to an amount not e.Kcecdiiig ninety thousiuul dollani^ Such bonds, notes or scrip shaU bear on their face the words, Town ot Merrimac Water Loan, and shall be payal^le at the expiration of periods
566 OPINIONS OF THE ATTORNEY-GENERAL.
not exceeding thirty years from the date of issue, shall bear interest, payable semi-annually, at a rate not exceeding four per cent per annum, and shall be signed by the treasurer of the towTi and countersigned by the water commissioners hereinafter provided for. Said town may sell such securities at pubhc or private sale, or pledge the same for money borrowed for the purpose of this act, and upon such terms and conditions as it may deem proper : provided, that such securities shall not be sold for less than the par value thereof.
Section 14 is as follows: —
This act shall take full effect upon its acceptance by two thirds of the legal voters of the town of Merrimac present and voting thereon at a legal meeting called for the purpose within three years from its passage; but the number of meetings so called in any one year shall not exceed three; and for the purpose of being submitted to the voters as aforesaid this act shall take effect upon its passage.
Your question would seem to be answered by the application of the principles stated in an opinion rendered to your depart- ment July 7, 1911, in reply to a closely similar question.
The vote of the town to accept St. 1903, c. 281, is not to be construed as a vote to issue bonds, notes or scrip. It is merely an acceptance of the legal authority to, issue bonds, notes or scrip for the purposes of the act at such later time or times as it shall in accordance with law vote to exercise that authority. In the exercise of that authority the town must follow the stat- utory requirements. So far as St. 1903, c. 281, prescribes the details of such issue it is to be followed; in other respects the general law must control. The special act does not state whether the vote to issue bonds, notes or scrip shall be a majority or a two-thirds vote. The matter is, therefore, governed by the provisions of R. L., c. 27, § 8, which requires, that debts shall be incurred only in the case of a town, by "a vote of two thirds of the voters present and voting at a town meeting," and in the case of a city, by a vote "of two thirds of all the members of each branch of the city council."
It is provided by R. L., c. 27, § 21, that where a city accepts, bv a vote of two-thirds of the legal voters, an act to supply it
JAMES M. SWIFT, ATTORNEY-GENERAL. 567
with water a "vote of the majority of the members of each branch of the city council" shall be sufficient to authorize the issue of bonds. By imphcation, it appears from this provision of law that a vote merely to accept the act is not sufficient to authorize the issue of bonds, and that the issue of bonds must be authorized by a subsequent vote of the city or town. It also appears by implication from this provision of the statutes that in cases not within this exception a two-thirds vote is necessary to authorize such an issue of bonds. There is no provision of law authorizing a town which has accepted such an act to issue bonds on a vote of less than two-thirds of the voters present and voting at a town meeting.
Your question is, therefore, to be answered in the negative.
Hours of Labor — Cities and Towns — Acceptance of
Statute.
St. 1911, c. 494, providing in section 1 that "the ser\'ice of all laborers, workmen and mechanics, now or hereafter employed ... by any city or town which has accepted the provisions of section twenty of chapter one hundred and six of the Revised Laws, or of section forty-two of chapter five hundred and fourteen of the acts of the year nineteen hundred and nine, ... is hereby restricted to eight hours in any one calendar day," is not in force in cities and towns which have not accepted the pro\'isions of R. L., c. 106, § 20. or of St. 1909, c. 514, § 42, but which had accepted the pro\-isions of St. 1899, c. 344, a corresponding provision of an earlier law.
You have requested my opinion as to whether chapter 494 Jf"i{,'^^,^!lL"' of the Acts of 1911 is applicable to and in force in cities and '"jbu"''"' towns w^hich have not accepted the provisions of section 2(1 of chapter 106 of the Revised Laws or of section 42 of chapter :)14 of the Acts of 1909, but which had accepted the provisions of chapter 344 of the Acts of 1899, a corresponding provision of an earlier law.
Section 1 of said chapter 494 of the Acts of 1911 is in part as
follows : —
The ser^ace of aU laborers, workmen and mechanics, now or horoaftcr employed by the commonwealth or by any county therein or by any city
AuKUiit 15.
56S OPINIONS OF THE ATTORN'EY-GENERAL.
or town which has accepted the pro^"isions of section twenty of chapter one hundred and six of the Re\'ised Laws, or of section forty-two of chapter five himdred and fourteen of the acts of the year nineteen hundred and nine, or by any contractor or subcontractor for or upon any pubhc works of the commonwealth or of any county therein or of any such city or town, is hereby restricted to eight hours in any one calendar day, . . .
In my opinion this inquiry must be answered in the negative. In section 20 of chapter 106 of the Revised Laws it is pro\"ided that such laws should be applicable to cities and towns which had accepted the p^o^'isions of that section, " or the correspond- ing provisions of earlier laws." Chapter 514 of the Acts of 1909, which prohibited requesting or requiring, etc., any em- ployee to work more than eight hours in any one day, omitted the foregoing phrase which had been contained in said section 20 of chapter 106 of the Re\'ised Laws, providing only that it should apply to cities which had accepted the provisions of sec- tion 20 of chapter 106 of the Re\'ised Laws and section 42 of said chapter 514 of the Acts of 1909. In chapter 494 of the Acts of 1911, in which the word "permit" was added to the p^e^^ous pro\'isions of the act of 1909, it is also provided that the act shall apply to cities and towns which had accepted the provisions of said section 20 of chapter 106 of the Revised Laws or of section 42 of chapter 514 of the Acts of 1909. It appears clear, therefore, that in order to have chapter 494 of the Acts of 1911 in force in any city or town, it must appear that such city or town has accepted either the provisions of section 20 of chapter 106 of the Revised Laws or section 42 of chapter 514 of the Acts of 1909.
The earlier provisions of law were less stringent than the more recent legislation hereinbefore cited, and it appears to me to have been the intent of the Legislature, when they made the law more drastic and added the recent provisions to the general law making eight hours a legal day's work, to require cities and towns to accept the provisions of these more recent enactments. As this is a penal statute, and so must be strictly construed, I am of opinion that the act in question is not in force in such cities and towns as are covered by your inquiry.
JAMES M. SWirr, ATTORNEY-GENERAL. 569
WoRKiiEx's Compensation Act — Employee — Common- wealth AS Employer.
The provisions of St. 1911, c. 751, which establishes a sj-stem for the compensation of employees for personal injuries received in the course of their emploj-ment, are not applicable to the Commonwealth as an employer in its various dei)art- ments nor to direct employees of the Commonwealth.
You have requested my opinion as to whether, under the To the st«te provisions of St. 1911, c. 751, known as "the workmen's com- Education, pensation act," the Massachusetts Board of Education is re- Au^m i9. quired to insure teachers, janitors, engineers, working stu- ■fnts and others employed to do work about the grounds and -lops of certain educational institutions within the jurisdiction of the Board, such, for example, as the normal schools. The Massachusetts Agricultural College, to which you refer in your letter, is not strictly a State institution, and I will, therefore, confine myself to answering the question with reference to those institutions in which the persons referred to are employed di- rectly by the Commonwealth.
While in the words of the Supreme Judicial Court of the Commonwealth, "the act in question involves a radical de- parture in the manner of dealing with actions or claims for damages for personal injuries received by employees in the course of their employment from that which has heretofore pre- vailed in this Commonwealth" (209 Mass. 607), it is not, in my opinion, to be considered as involving a radical change in the law as to what shall constitute claims or causes of action against the Commonwealth or in the law prescribing the manner of the prosecution of such claims.
The Commonwealth, since it is sovereign, may be impleaded in its own courts only by its clearly expressed consent, and claims against the Commonwealth may be prosecuted only in the manner and upon the terms assented to by the Common- wealth by clear legislative enactment.
The statute in question is not by express provision made ap- pUcable to the Commonwealth, and its provisions as to the administration of the law are not consistent with an intention
i
570 OPINIONS OF THE ATTORNEY-GENERAL.
by the legislative body that the act should apply to the Com- monwealth as the employer in its various departments, or to persons directly employed by the Commonwealth in those de- partments.
In my opinion, therefore, the statute in question is not to be considered as applicable to the Commonwealth or to those di- rectly employed by the Commonwealth within the field of the jurisdiction of the State Board of Education.
License to operate Automobile — Revocation — Convic- tion — Judgment of Guilty placed on File.
The Massachusetts Highway Commission, under the provisions of St. 1909, c. 534, § 22, that "a conviction of a violation of this section shall be reported forth- with by the court or trial justice to the commission, which shall revoke immediately the license of the person so convicted," is warranted in treating a judgment of guilty placed on file by the trial court as a conviction.
Massachusetts Your inquiry of August 27 in substance requires my opinion Commfssion. upon the qucstiou whether or not a judgment of guilty placed September 17. ou file by the court constitutes a conviction within the meaning of St. 1909, c. 534, § 22.
The section cited establishes, among other offences, that of operating an automobile or motor cycle recklessl}^ or so that the lives and safety of the public may be endangered, and your communication states that the judgment or finding of guilty was upon facts tending to prove this offence. The section then proceeds as follows: —
A conviction of a violation of this section shall be reported forthwith by the court or trial justice to the commission, which shall revoke immedi- ately the license of the person so convicted. If it appears by the records of the commission that the person so convicted is the owner of a motor vehicle, or has exclusive control of any motor vehicles as a manufacturer or dealer, the commission may revoke the certificate of registration of all motor vehicles so exclusively owned or controlled. Whenever any person so convicted appeals, the commission shall suspend forthwith the license of the person so convicted, and shall order the hcense delivered to it, and shall not reissue said license unless such person is acquitted in the appellate court, or unless the commission in its discretion, after an investigation
JAMES M. SWIFT, ATTORNEY-GENERAL. 571
or upon a hearing, decides to reissue it. No new license or certificate sliall be issued by the commission to any person convicted of a violation of this section until after sixty days from the date of such final con\iction, nor thereafter except in the discretion of the commission.
The question is not free from difficulty. In MunMey v. Iloyt, 179 Mass. 108, where it was provided in St. 189G, c. 397, § 9, that the Board of Registration in Pharmacy, after hearing, might suspend the registration and certificate of a registered pharmacist, or might revoke such registration and certificate altogether, but which contained the proviso that "the license or certificate of registration of a registered pharmacist shall not be suspended or revoked for a cause punishable by law until after conviction by a court of competent jurisdiction," the court held that the placing of the case on file after a plea of guilty was a sufficient conviction to warrant the suspension or revoca- tion of the license. The court said, at page 111: —
It is the intention of the statute to give a pharmacist charged with a crime the right to a trial in the court ha\'ing jurisdiction of his offence, but if his guilt be there established so that the court may impose sentence according to its powers, then it is sufficiently established for the Board of Pharmacy to act upon their finding, and to impose the penalty acconling to their powers.
And again, at page 112: —
The problems before the respective tribunals are entirely difTcrcnt, and, the guilt of the accused being established through con\'iction by plea or verdict in the one and by the finding after a hearing in the other, the accused is subject to such punishment as the respective tril)unal.s may lawfully impose, and the right of either to proceed to judgment is not affected by the fact that the other sees fit to decline to proceed to judgment.
And it appears to be well settled that in its ordinary legal sense the word "conviction," as used in the statutes of the Common- wealth, signifies that the defendant has pleaded guilty or has been found guilty by the verdict of a jury or the finding of a court. 1 Op. Atty.-Gen. 499; Comwnnuralth v. Luchwood,
572 OPINIONS OF THE ATTORNEY-GENERAL.
109 Mass, 323. In some cases, however, the word is employed in statutes to designate the judgment and sentence of the court upon a verdict, finding or confession of guilt. Thus, in Com- monwealth V. Kiley, 150 Mass. 325, under the provision of St. 1887, c. 392, that "the conviction by a court of competent jurisdiction of a person licensed under the provisions of chapter one hundred of the Public Statutes, for violation of any of the provisions of said chapter, and the several acts in amendment thereof, shall of itself make the license of said person void," the court held that a verdict of guilty found by a jury in the Su- perior Court, from which an appeal was taken, was not a con- viction within the meaning of the statute above cited, and the court said : —
Under this provision, tlie effect of a conviction of the kind named is to deprive the defendant of a valuable right, without an opportunity for further trial or investigation. We are of opinion that nothing less than a final judgment, conclusively estabUshing the guilt, will satisfy the meaning of the word "conviction" as here used. At any time before a final judg- ment of the court a motion in arrest of judgment may be made, or the verdict may be set aside upon a motion for a new trial, on the ground of newly discovered evidence, or for other good cause; and, upon further proceedings, it may turn out that the defendant is not guilty.
And see Commonwealth v. Gorham, 99 Mass. 420; Fay v. Har- lan, 128 Mass. 244.
The distinction between the case of Munkley v. Hoyt and the case of Commonwealth v. Kiley, and other similar decisions, appears to rest upon the fact that in the latter the conviction it- self voids or revokes the license so that the loss of the license in effect becomes a part of the sentence rather than a conse- quence of the verdict or finding of guilty, whereas in the former case the determination of the guilt of the licensee did no more than confer jurisdiction upon an independent tribunal to pro- ceed with a separate inquiry resulting in the revocation or sus- pension of the license.
The case presented by the inquiry of the commission appears to lie somewhere between the above decisions. Under the pro- visions of section 22, above quoted, which are mandatory, the
JAMES M. SWIFT, ATTORNEY-GENERAL. 573
commission is not vested with any discretion in the premises, and their function in connection with the revocation of the license is purely ministerial, so that at least to the extent of making the revocation of the license a necessary consequence of the conviction of the licensee, the statute resembles that con- sidered by the court in Commonicealth v. Kilcy. Upon the other hand, the provision of section 22 that "whenever any per- son so convicted appears, the commission shall suspend forth- with the license of the person so convicted," appears to con- template action upon the part of the commission before the final judgment which constitutes a conviction as defined in Common- ivealth V. Kiley. The purpose of the section is undoubtedly to protect the public against the reckless operation of automobiles or motor cycles.
Taking into consideration that the purpose of section 22 is to secure the safety of the public upon highways where auto- mobiles and other motor vehicles may be operated at a high rate of speed, it is apparent that there is sound and adequate reason why a person who has pleaded or has been found guilty of reckless operation should not be permitted to continue operat- ing until a final judgment has been rendered in his case, but should be forthwith deprived of his license, not as a punishment for the offence but as a measure of protection to the public. This, I am advised, is the view heretofore adopted by the com- mission in dealing with similar cases. While the question can- not be said to be entirely free from doubt, I am of opinion that for the reasons above discussed and in view of the puri)ose of the statute and the obvious considerations of public safety involved, the commission is so far warranted in treating a judg- ment of guilty as a sufficient conviction to require the revoca- tion of the license of the person so convicted as not to be required to change the policy already pursued by it, until the precise point has been adjudicated otherwise by the courts.
574 OPINIONS OF THE ATTORNEY-GENERAL.
Trust Company — Savings Department — Payment of Fixed Dividend requiring Transfer of Funds from General Banking Fund of Company.
The provision of St. 1908, c. 520, § 3, that the accounts of the savings department of a trust company "shaJl be kept separate and distinct from the general business of the corporation," prohibits the promise of a fixed dividend or rate of interest upon money deposited in the savings department of a trust company, which for its maintenance requires a transfer of funds from the general banking department of the company to the savings department.
CommiMf(?ner YouF letter of September 24 requires my opinion as to the Octo^bfr2. authority of a trust company which has estabhshed a savings department, under the provisions of St. 1908, c. 520, to promise to pay a definite rate of interest or dividends upon money de- posited therein, any deficiency in the earnings of the savings department to be made up by a transfer of funds necessary to complete the required amount of dividends or interest from the general banking department of the trust company. St. 1908, c. 520, §§ 1, 2 and 3, are as follows: —
Section 1. Every trust company soliciting or receiving deposits (a) which may be withdrawn only on presentation of the pass-book or other similar form of receipt which permits successive deposits or withdrawals to be entered thereon; or (6) which at the option' of the trust company may be withdrawn only at the expiration of a stated period after notice of intention to withdraw has been given; or (c) in any other way which might lead the public to believe that such deposits are received or invested under the same conditions or in the same manner as deposits in savings banks; shall have a savings department in which all business relating to such deposits shall be transacted.
Section 2. All such deposits shall be special deposits and shall be placed in said savings department, and all loans or investments thereof shall be made in accordance with the statutes governing the investment of deposits in savings banks. The duties of the board of investment relative to the investment of such deposits shall be performed by a board or committee appointed by the board of directors of such corporation.
Section 3. Such deposits and the investments or loans thereof shall be appropriated solely to the security and payment of such deposits, and shall not be mingled with the investments of the capital stock or other money or property belonging to or controlled by such corporation, or be liable for the debts or obligations thereof until after the deposits in
JAMES M. SWIFT, ATTORNEY-GENERAL.
said savings department have been paid in full. The accounts and trans- actions of said savings department shall be kept separate and distinct from the general business of the corporation.
Section 5 of the same chapter provides that —
All income received from the investment of funds in said savings depart- ment, after deducting the expenses and losses incurred in the management thereof and such sums as may be paid to depositors therein as interest or dividends, shall accrue as profits to such corporation and may be trans- ferred to its general funds.
It was the obvious purpose of the provisions of chapter 520, above quoted, to place a trust company, so far as possible, upon the same footing as a savings bank, and to require that it be conducted entirely separate from the general business of the trust company by which it is maintained. This being so, I am of opinion that the promise of a fixed dividend or rate of in- terest upon money deposited in the savings department of a trust company requiring for its maintenance a transfer of funds from the general banking department of the company to the savings department, is contrary to the provision of St. 1908, c. 520, § 3, above cited, that the accounts and transactions of the savings department shall be kept separate and distinct from the general business of the company, and is therefore unauthor- ized.
Civil Service — Inspectors of Slaughtering.
Inspectors of slaughtering nominated and appointed under the provisions of St. 1911, c. 297, § 6, as amended by St. 1911, c. 534, § 2, are included within the terms of Civil Service Rule 7, c. 11.
In behalf of the State Board of Health you have requested J,«,cWd my opinion as to whether, in view of the provisions of St. 1911, "^^^^^^^^^ c. 297, and St. 1911, c. 534, relating to the nomination, ap- '^i-1 ' pointment and removal of inspectors of slaughtering, the mspec- tors nominated and appointed under those provisions of law m cities are subject to civil service law and rules.
576 OPINIONS OF THE ATTOKNEY-GENERAL.
St. 1911, c. 534, is entitled, "An Act relative to the appoint- ment of inspectors of slaughtering," and provides, in section 2, as follows: —
Section six of chapter two hundred and ninety-seven of the acts of the year nineteen hundred and eleven is hereby amended by striking out said section and inserting in place thereof the following: — Section 6. For the purposes of this act inspectors shaU be appointed, shaU be compensated, and may be removed in accordance with the provisions of law relating to inspectors of animals, except that the appointment of such inspectors shall be made by the local boards of health and except that in respect to such inspectors the state board of health shaU perform the duties and exercise the authority imposed by law upon the chief of the cattle bureau of the state board of agriculture in respect to inspectors of animals. The first appointments under this act shall be made within thirty days after its passage.
The provisions of law relating to inspectors of animals re- ferred to are contained in St. 1912, c. 608, § 6, providing —
The mayor and aldermen in cities, except Boston, and the selectmen in towns shall annually, in March, nominate one or more inspectors of animals, and before the first day of April shall send to the commissioner of animal industry the name, address and occupation of each nominee. Such nominee shall not be appointed until approved by the commissioner of animal industry. ,
The provisions of law, other than the civil service law, which are now in force with reference to the nomination, appointment and removal of inspectors of slaughtering may, therefore, be said to be in substance as follows: the boards of health in cities, except Boston, and the boards of health in towns shall annually, in March, nominate one or more inspectors of slaughtering, and before the first day of April shall send to the State Board of Health the name, address and occupation of each nominee. Such nominee shall not be appointed until approved by the State Board of Health. The aforesaid officials of cities and towns may remove any inspector, and shall thereupon immedi- ately nominate another in his place and send notice thereof as prescribed above. In all cities at least one of the inspectors of slaughtering shall be a registered veterinary surgeon.
JAMES M. SWIFT, ATTORNEY-GENERAL.
The question submitted, therefore, is whether, in spite of tlie fact that the LegishUure has made provision by the statutes quoted for the nomination and appointment of inspectors of slaughtering by boards of health in cities, and for the approval by the State Board of Health of those appointed, and for the immediate filling of any vacancy which may occur, and in these statutes has made no express reference to the civil service law and rules, the position is nevertheless within tlie jurisdiction of the Civil Service Commission.
R. L., c. 19, authorizes the appointment of a civil service commission, and provides that the commissioners shall from time to time prepare rules regulating the selection of persons to fill appointive positions in the government of the Common- wealth and of the several cities thereof. Of the rules made under authority of that provision of law, Civil Service Rule 7, providing for the classification of the official service, includes, as class 11, "Inspectors other than inspectors of work and persons doing similar work, except railroad inspectors, in the service of the Commonwealth or of any city thereof."
In my opinion the term "inspectors," as used in the rule quoted, is sufficiently broad to include inspectors appointed under St. 1911, c. 534. The functions of the position of in- spector of slaughtering, and the nature of the office itself, are not such as to bring the position within any of the general statutory exceptions from the application of the civil service law provided by R. L., c. 19, § 9, and its amendments. The fact that the successful performance of the work required in the position calls for the special qualification of professional train- ing does not in itself except the position from the application of civil service law^ and rules. I am not aware of any statute which specifically excepts the office from the civil service law.
The position of inspector of slaughtering must, therefore, be held to be within the jurisdiction of the Civil Service Commis- sion unless it can be said that the provisions of St. 1911, c. 297, and St. 1911, c. 534, show an intention on the part^f the Legis- lature so inconsistent with the intention to subject the position
578
OPINIONS OF THE ATTORNEY-GENERAL.
to civil service law and rules as by implication to exempt the office therefrom.
In my opinion the statute is not so to be construed. At the time when the Statutes of 1911 were enacted inspectors in the service of cities were in the classified list of the civil service rules. The Legislature must be presumed to have known that the inspectors whose appointment was provided for by the Stat- utes of 1911 would be subjected to civil service law and rules unless they were expressly exempted therefrom by action of the Legislature. The Legislature is, therefore, in my opinion, to be considered as having provided that the local boards of health and the State Board of Health might respectively nom- inate, appoint and approve, but only subject to existing laws. It is to be noted that the effect of such construction is not to nullify the power of nomination, appointment and approval be- stowed upon the local boards of health and the State Board of Health, but merely to limit those powers to the extent that nominations and appointments must be made from the certified list of the Civil Service Commission, and the procedure with reference to the nomination, appointment and removal of the officials in question must be governed by civil service law and rules.
Town — Notes — Certification — Director of Bureau of Statistics — Vote to authorize Selectmen to refund Debt "upon the Passage of an Act authorizing the Same."
The vote of a town at a town meeting held on March 4, 1912, appro\-ing the action of the selectmen in asking the Legislature to authorize such town to refund its debt, and authorizing the selectmen "to refund said debt upon the passage of an act of the Legislature authorizing the same," does not constitute a valid acceptance of the authority to refund the debt in question, conferred by a statute passed on March 28 follo^\'ing, and the Director of the Bureau of Statistics should not certify notes issued in accordance with such vote.
You have requested my opinion as to what action should be taken bv vou with reference to a series of notes which the
To the Director of the Bureau of Statistics.
November?, towu of Nortli Reading desires to issue under St. 1912, c. 343,
JAMES M. SWIFT, ATTORNEY-GENERAL. 579
and which have been presented to you for certification under the provisions of St. 1910, c. 616, as amended by St. 1912, c. 45. The facts from which the question arises are as follows: in the warrant for the town meeting of North Reading, held on March 4, 1912, appeared the following: —
Article 16. To see if the town will approve of the action of the select- men in asking the Legislature to authorize the to^^•n to refund its debt amounting to $9,600, and will authorize the selectmen to refund said debt upon the passage of an act of the Legislature authorizing the same.
Pursuant to that article the town voted as follows: —
Article 16. Under Article 16, upon motion of Mr. A. G. Barber, voted to approve the action of the selectmen in asking the Legislature to authorize the town to refund its debt amounting to S9,600, and to author- ize the selectmen to refund said debt upon the passage of an act of the Legislature authorizing the same.
The act of the Legislature upon the subject-matter referred to in the vote of the town was passed as St. 1912, c. 343, on March 28, 1912, and took effect upon its passage. That act provides as follows : —
Section 1. For the purpose of paying certain outstanding notes amounting to nine thousand six hundred dollars, the toA\'n of North Read- ing is hereby authorized to borrow the said sum and to issue notes therefor. One of the said notes shall be payable in each year after the said loan is made, and the amount of the first nine notes so issued shall be one thou- sand doUars each, and the amount of the tenth note shall be six lunulred dollars. The said notes shall be signed by the treasurer and countersigned by the selectmen of the town, and shaU bear interest at a rate not exceeding four and one half per cent per annum. The money required to pay tlic interest on said notes in each year, and that part of the principal which becomes due in that year, shaU be raised by taxation in the same manner in which the other expenses of the iovm are provided for.
Section 2. This act shall take effect upon its passage.
The specific question presented by you is whether the v..tc quoted above constitutes sufficient authority to warrant the issue of the notes in question and their certification by you without further vote of the town.
580 OPINIONS OF THE ATTORNEY-GENERAL.
In my opinion the question is to be answered in the negative.
At the time when the town meeting was held, on March 4, 1912, I assume that the town had no existing authority to re- fund the debt in question. It is at least clear that the vote of the town on that date was not effective to authorize the refund- ing of the debt under any other legislation than that of 1912.
The vote passed at the meeting of March 4, 1912, was an attempt to anticipate authority which the town had not yet acquired. At the time when the town thus purported to au- thorize the exercise of authority which it expected the Legis- lature to confer upon it the town did not know definitely that any such authority would be conferred upon it or what the measure or form of the authority conferred would be if con- ferred. It was possible that the Legislature might grant the authority in the terms asked by representatives of the town, or withhold it completely, or grant it with such qualifications and conditions that the act when passed would not be acceptable to the town.
Upon these facts the town cannot be considered to have ac- cepted by valid action a grant of authority which had not in fact been offered to it at the time of the vote and the form and terms of which it could not foretell.
Furthermore, the vote itself is too indefinite in its provisions to be effective. Since the act of March 28, 1912, had not been passed when the vote was taken, and since there was no cer- tainty as to what the final form of the act might be, it is not permissible to read into the vote of March 4, 1912, the pro- visions of the act which was passed on March 28, 1912.
Considering the vote by itself, therefore, and apart from the statute, as it must be considered, the vote appears to be en- tirely lacking in any provisions as to the rate of interest, the amount of the proportionate payments, and the terms of the bonds or notes to be issued. Such a vote, without a statute to be read into it or construed with it, is inadequate to authorize the officials of the town to take the necessary steps for the issuing of the notes in question.
There is no provision in St. 1912, c. 343, that the town treas-
JAMES M. SWIFT, ATTORNEY-GENERAL. 581
iirer or other officials of the town may issue the notes without further vote of the town. Where the Legislature intends to authorize such action by the town treasurer without further vote of the town, it expresses that intention. St. 1912, c. 45S, is entitled, "An Act to authorize the town of Essex to refund certain indebtedness," and section 3 of that statute provides as follows: —
The treasurer of the to\\Ti of Essex, with the approval of the select- men, is hereby authorized, ^vathout further vote of the town, to incur indebtedness under the provisions of this act for which said town shall be liable, and to issue notes of the town therefor in accordance with law.
If chapter 343 of the Acts of 1912 contained such a provision quite a different situation would be presented.
Upon the present state of facts, therefore, I have to advise you that in my opinion you should not certify the series of notes w^hich has been presented to you for certification.
Public Records — Records of Public or Incorporated Hospitals — Inspection.
Under the provisions of St. 1905, c. 330, § 3, that the records of hospitals supported in whole or in part by contributions from the Commonwealth or from any municipality, and incorporated hospitals offering treatment to patients free of charge or conducted as public charities, "shall not be open to public inspection until they are produced in court by the person ha-v-ing the custody of the same," the superintendent or other officer in charge of such institu- tion is not required or permitted to furnish any person with a copy of any part of such record.
I have received your letter stating that you have received ;^^.,'J;^ j*^;"^ a request from an attorney representing a patient who was )\;;,'^;;1" ''"*'' formerly under the care of the Worcester State Hospital, that sovemfM.rM. you furnish a detailed record of the history of the patient's case, and asking my opinion upon the questions, first, whether you are compelled by law to furnish a copy of the records to the person requesting it; and second, whether, if not compelled to furnish such copy, it is lawful for you to furnish it if you deem it best.
582
OPINIONS OF THE ATTORNEY-GENERAL.
The answers to both questions are found in the provisions of St. 1905, c. 330. The amended provisions are as follows: —
Section 1. Hospitals supported in whole or in part by contributions from the Commonwealth or from any municipahty, incorporated hospitals offering treatment to patients free of charge, and incorporated hospitals conducted as public charities, shall keep records of the cases under their care and the history of the same in books kept for that purpose.
Section 2 [as amended by St. 1908, c. 269]. Such records, and similar records kept prior to April twenty-fifth, nineteen hundred and five, shall be in the custody of the person in charge of the hospital, and shall be admissible as evidence in the courts of the Commonwealth as to all matters therein contained.
Section 3. Section seventeen of chapter thirty-five of the Revised Laws shall not apply to such records, and they shall not be open to public inspection until they are produced in court by the person having the custody of the same.
You are, therefore, not only not compelled to furnish a copy of the records, but by statutory provision the furnishing of such copy is expressly prohibited, and the usual provision of law that every person having the custody of public records shall at rea- sonable times permit inspection of those records and furnish copies thereof on payment of reasonable fees, is made inappli- cable to the records of patients in a State insane hospital.
Lottery — Element of Chance — Voting Contest.
An arrangement or contract entered into by a foreign corporation dealing in ponies, with certain merchants and managers of theatres within the Commonwealth, by which each such merchant or manager contracting with the pony company issues to every customer for each 25 cents received 25 votes, which may be cast by the bearer in favor of any contestant in a contest in which the person receiving the highest number of votes is entitled to a pony and outfit from such company, involves no element of chance, and therefore does not con- stitute a lottery within the meaning of the several sections of R. L., c. 214, which prohibit lotteries within the Commonwealth.
To the Chief You havc rcquestcd my opinion as to whether the operation
t"ctPoHce. of a certain arrangement entered into by various managers of
November 22.
theatres and other buildings licensed by your department is subject to the provisions of the laws of this Commonwealth
JAMES M. SWIFT, ATTORNEY-GENERAL. 583
prohibiting setting up, promoting, permitting, advertising, or in any manner participating or assisting in the operation of a lottery.
The arrangement in question is substantially as follows: a pony company of Ohio makes contracts with various theatre owners and merchants by the terms of which a voting contest is carried on in connection with the management of the theatre or business for the purpose of advertising the ponies of the Ohio company. Each theatre owner or merchant contracting with the pony company issues to every customer for each 2o cents received, either for admission tickets or for merchandise, 25 votes. These votes so received may be cast by the bearer in favor of any contestant, and the contestant securing the highest number of votes receives a pony and outfit from the Ohio com- pany. In case of a tie the value of the pony and outfit is divided among those having an equal number of votes.
Without assuming to refer to all the provisions of Massachu- setts law" aimed at the prevention of the operation of lotteries, most of which provisions are embodied in chapter 214 of the Revised Laws, the following section may be cited as fairly illus- trating the policy of the law" upon the subject : —
Section 7. Whoever sets up or promotes a lottery for money, or by way of lottery disposes of any property of value, or under the pretext of a sale, gift or delivery of other property or of any right, pri\-ilege or thing whatever disposes of or offers or attempts to dispose of any property, with intent to make the disposal thereof dependent upon or connected with chance by lot, dice, numbers, game, hazard or other gambUng device, whereby such chance or de\ace is made an adchtional inducement to the disposal or sale of said property, and whoever aids either by printing or writing, or is in any way concerned, in the setting up, managing or drawing of such lotterj', or in such disposal or offer or attempt to dispose of prop- erty by such chance or de\ice, shall for each offence be punished by a fine of not more than two thousand dollars or by imprisonment for not more than one year.
"Lottery" is defined in the Century Dictionary as follows: —
1. Distribution of anything by lot; allotment; also, the drawing of lots; determination by chance or fate; random choice; matter of chance;
584 OPINIONS OF THE ATTORNEY-GENERAL.
as, the lottery of life. 2. A scheme for raising money by selhng chances to share in a distribution of prizes; more specifically, a scheme for the distribution of prizes by chance among persons purchasing tickets, the coiTespondingly numbered slips or lots, representing prizes or blanks, being drawn from a wheel on a day previously announced in connection with the scheme of intended prizes. 3. The lot or portion falling to one's share; a chance allotment or prize.
In all these definitions chance is the essential element. If the element of chance is absent the things which are necessary to constitute a lottery are not present.
An analysis of the plan submitted as that operated under the contract between the pony company and the theatre managers and merchants fails to reveal any element of chance. Every- thing is determined by a definite and invariable rule in advance, except the question as to who shall receive the votes which are cast, and that question is in no way determined by chance. Tickets of admission and articles of merchandise are for sale to everybody. Everybody who pays 25 cents, or any multiple thereof, either for tickets or merchandise receives a certain fixed number of votes for each 25 cents paid. Each person having received his votes is free to cast them for w'homsoever he chooses, and his own choice is determined absolutely and solely by his own preference, which is expressed at his own volition. Whether his personal choice proves to be the winner of the contest depends not at all upon chance but merely upon whether a sufficient number of other voters have exercised their will in the same manner and given effect to the same pref- erence, and that question is determined not by lot or by hazard but by the ordinary processes of arithmetic.
In my opinion, therefore, the arrangement in question is not a lottery and is not within the scope of the description of the kindred evils for the suppression of w^hich provision is made by chapter 214 of the Revised Laws, and its amend- ments.
While no similar arrangement appears to have been under the consideration of the courts of this Commonwealth, a discus- sion of a case very similar in its facts is to be found in the
JAMES M. SAVIFT, ATTORNEY-GENERAL. 5ij5
opinion of the court in Quatsoe v. Egglesion, 42 Ore. :!1.-), in which the court held that since "the award of the })ian().s wliich are proposed to be given away as an inducement is not made by chance or lot, but by the affirmative and conscious act and will of the holders of tickets obtained with goods purchased at the defendant's store," the scheme did not constitute a lotterv.
Insurance — Steam Boilers — Inspection by Insurance Companies — Certificate.
Under the provisions of St. 1907, c. 465, § 17, as amended by St. 1912, c. 531, § 7, that "insurance companies engaged in the business of inspecting and insuring steam boilers shall, after each internal and external inspection, if the lx)iler and its appendages conform to the rules formulated by the Board of Boiler Rules, and if they deem the boiler to be in safe working condition otherwise, issue a certificate of inspection . . . ," it is the duty of an insurance com- pany making such inspection to issue a certificate upon each inspection with- out regard to the purpose for which such inspection is made.
You have requested my opinion as to the construction to be to the chief given to St. 1907, c, 465, § 17, as amended bv St. 1912, c. 581, District Folic*.
1912
§ 7, with reference to the inspection of steam boilers by in- December i. surance companies engaged in the business of inspecting and insuring steam boilers within this Commonwealth. The statute in its amended form provides as follows: —
Insurance companies engaged in the business of inspecting and iasuriug steam boilers shall, after each internal and external inspection, if the boiler and its appendages conform to the rules foiTOulated by the l)oard of boiler rules, and if they deem the boiler to be in safe working condition otherwise, issue a certificate of inspection stating the maxi- mum pressm-e at which the boiler may be operated. This maximum pressure shall be detennined under the rules established by the hoard of boiler rules.
It appears that certain companies duly authorized to insure steam boilers in this Commonwealth from time to time inspect boilers upon which the owners desire to place insurance, or in- spect such boilers for the information of the owner or pro-
586 OPINIONS OF THE ATTORNEY-GENERAL.
spective purchaser, and that these companies contend that they are not required by the law to issue certificates after inspections for such purposes.
Your question is whether the insurance companies authorized to engage in the business of insuring and inspecting boilers in this Commonwealth are required by the statute to issue a cer- tificate of inspection after an inspection for such purposes as those above mentioned.
The statute prescribes that after each internal and external inspection, if the boiler and its appendages conform to the rules, and if it is deemed to be in safe working condition other- wise, a certificate of inspection shall be issued. The provision is not that after every annual inspection, or that after every regular inspection, or that after every inspection which the in- surance company chooses to designate as an inspection made in accordance with the requirements of law a certificate shall be issued. No exception is made by the terms of the statute. An inspection is an inspection, whatever its object, and so far as appears from the statute one internal and external inspection does not dift'er from another. The statute does not fix any time for making inspections. It merely provides that inspec- tions shall be made at intervals of not piore than one year. It is, therefore, not open to the insurance companies to desig- nate one of several inspections as the inspection required by law, and to refuse to issue a certificate upon any other inspec- tion. It is not open to the insurance companies to make dis- tinctions between inspections which the statute itself does not make.
From the comprehensive language used in the statute it would seem to have been the intent of the Legislature that the latest inspection should be the one upon which the certificate in force is based, and to have the certified condition of the boiler kept up to date as closely as possible. That such was the intent of the Legislature is also indicated by the provisions of section 10 of chapter 465 of the Acts of 1907, which pre- scribe that every insurance company shall forward to the chief inspector of boilers, within fourteen days after each internal
JAMES M. SWIFT, ATTORNEY-GENERAL. 5S7
and external inspection, reports of all boilers so inspected by it. That is in effect a requirement that the chief inspector of boilers shall have the benefit of all information up to date which the insurance companies have acquired in the transaction of their business.
In my opinion, therefore, the interpretation given to the stat- ute by you is correct, and the insurance companies are required to issue a certificate after every inspection, whatever may have been the object of or reason for the inspection.
588 OPINIONS OF THE ATTORNEY-GENERAL.
1908 August 28.
OPINIONS UPON APPLICATIONS FOR LEAYE TO FILE
INFORMATIONS IN THE NAME OF THE
ATTORNEY-GENERAL.
Attoeney-General ex rel. v. Visitors of the Theological Institution in Phillips Academy in Andover.
Attorney-General — Public Charitable Trust — Trust Fund —
Mandamus.
Under the provisions of R. L., c. 7, § 6, which makes it the duty of the Attorney- General to enforce the due application of funds given or appropriated to public charities within the Commonwealth, and to prevent breaches of trust in the administration thereof, the Attorney-General -nill not sanction, by the use of his name upon a petition for a writ of mandamus, the expenditure of trust funds for the purpose of deciding a purely technical question, when in his opinion no public advantage will be served thereby.
This is an application to the Attorney-General by Rev. Wil- liam E. Wolcott, D.D., and Mr, Willianl Shaw, to sign an in- formation praying that a writ of mandamus issue to the visitors of the Theological Institution in Phillips Academy in Andover, commanding them to hold a meeting at which the said trustees shall be duly summoned to appear, and to determine thereat whether, in the removal and affiliation of Andover Theological Seminary with Harvard University and in the terms and condi- tions of said affiliation and in the general plan of such removal and affiliation, said trustees are not acting contrary to the stat- utes of the foundation and in violation of the terms of their trust.
Section 6 of chapter 7 of the Revised Laws provides that: —
He [the attorney-general] shall enforce the due application of funds given or appropriated to public charities within the commonwealth, prevent breaches of trust in the administration thereof . . .
DANA MALONE, ATTORNEY-GENERAL. 589
On March 12, 1908, the trustees of Andover Theological Sem- inary (eleven of the trustees being recorded for the affiliation, and one failing to vote, there being twelve members of tiie board) voted to remove from Andover to Cambridge, and also, by official vote and mutual agreement made with the authori- ties of Harvard University, they afi'ected an affiliation of the tw^o institutions. The terms of affiliation provide in part that the organization of the seminary shall be maintained without change, all its trusts being executed as at present.
The trustees are given express authority to remove the sem- inary by the statutes of the founders (1778) : —
Whereas, in the course of human events, the period may arrive, when the prosperity of this Institution may be promoted by removing it from the place v/here it is founded; if it shall hereafter be judged, upon mature and impartial consideration of aU circumstances, by two-tliirds of the Trustees, that for good and substantial reasons, which at this time do not exist, the true design herein expressed wiU be better served, by ^emo^^ng the Seminaiy to some other place, it shall be in their power to remove it accordingly; provided that if this event shall ever take place, there shall be fairly and truly entered on the Clerk's records, all the reasons whereon the determination was grounded, and the same shall be subscribed by the members who effected the detennination; but unless the good of man- kind shall manifestly require it, this Seminary shall never be rcmoA'cd from the South Parish in the Town of Andover.
Article XX. of the associate statutes defines the powers and duties of the board of visitors, as follows: —
The powers and duties of the Board of Visitors, thus constituted and organized, shall be as follows, namely: —
1. To visit the Foundation once in every j^ear, and at other times, when regularly called thereto;
2. to inquhe into the state of this our Fund and the management of this Foundation, with respect both to Professors and Students;
3. to determine, interpret, and explain the Statutes of this Foundation in all cases, brought before them in their judicial capacity;
4. to redress grievances, both with respect to Professors and Students;
5. to hear appeals from decisions of the Board of Trustees and to remedy upon complaint, duly exhibited in behalf of the said Professors and Stu- dents;
590 OPINIONS OF THE ATTORNEY-GENERAL.
6. to review and reverse any censure passed by said Trustees upon any Professor or Student in this Foundation;
7. to declare void all Rules and Regulations, which may be inconsistent with the original Statutes thereof;
8. to take care that the duties of every Professor in this Foundation be intelligently and. faithfully discharged, and to admonish or remove him, either for misbehavior, heterodoxy, incapacity, or neglect of the duties of his office;
9. to examine into the proficiency of the students, and to admonish, suspend, or deprive any student for negligence, contumacy, or any heinous crime, committed against the laws of God or the Statutes of this Founda- tion;
10. and in general, to see that our true intentions, as expressed in these Statutes, be faithfully executed; always administering justice impartially, and exercising the functions of their office in the fear of God, according to the said Statutes, the Constitution of this Seminary and the laws of the Land.
At a meeting of the visitors, on the thirteenth day of May, 1908, upon the petition of these applicants, praying the Board to decide whether the trustees, in passing a vote to remove the seminary and to affiliate with Harvard University, had not acted contrary to the statutes of the seminary and perverted their trusts, the following vote was passed : —
The visitors feel that they should not entertain the petition, because they are not satisfied that the visitors have a right to review the action of the trustees in deciding to remove the seminary from Andover to Cam- bridge, and to affiliate with Harvard, and because they are not satisfied that the petitioners have a right to institute such a petition.
It is claimed that the visitors, who are three in number, have the power, and that it is their duty, to review the action of the trustees in voting to remove said seminary from Andover and to affiliate with Harvard University; that, contrary to the terms of their appointment and contrary to the statutes of the foundation under which they hold office, they have neglected to take official cognizance of the votes of the trustees of said seminary with reference to such removal.
As to the power of the visitors, Mr. Justice Knowlton, in Smyth V. PMUips Academy, 154 Mass. 551, 554, says that: —
DANA MALONE, ATTORNEY-GENERAL. 591
They [the statutes] leave the Avhole management and control of the theological institution in the board of trustees, who constitute tlie corpora- tion, and who hold the property, subject only to a ^^sitato^ial power in the board of visitors, whose general duty is to visit the corporation and see that the trustees manage the institution in conformity with the statutes, and, if errors or abuses are discovered, to con-ect them.
The trustees have been advised as to their riglits and duties by eminent lawyers, from whose opinions I quote: —
It follows . . . that the visitors camiot revise, and they ha^'e no power to negative, a decision by the tmstees to change the location of the semi- naiy, if determined upon by the ti-ustees m an honest exercise of their judg- ment, and not from corrupt motives or ulterior purposes. Sucli action by the trustees is not maladministration, but a properly exercised adminis- trative function.
Courtesy may suggest that the visitors be infoimed by the trustees of their intended plan, but neither the letter nor the spu'it of the original foundation or of the associate foundation gives the visitors any legal right to be consulted or any joint power of action or any power to aimul the action of the trustees.
This is not a case involving the maladministration or misap- plication of trust funds, or the denial of the benefits or emolu- ments of the foundation to those entitled thereto; but I am asked to sign an information against the board of visitors for alleged misconduct in exercising its general visitatorial powers.
From a careful examination of article XX., above quoted, which defines the powers and duties of the board of visitors, I am satisfied that the board of visitors have no right to review the action of the trustees in voting to remove to Cambridge. The power of removal is expressly given to the trustees by the statutes of the founders, with no provision therein for review by the visitors, nor do I find such power in said article XX.. which seems to me to deal especially with the doctrinal creeds and requirements to be observed by professors and students, the duty of explaining the statutes in reference thereto, as well as redressing grievances in respect both to i)rofessors and stu- dents, and seeing that the professors and students have the benefits of the foundation as provided in the statutes.
592 OPINIONS OF THE ATTORNEY-GENERAL.
Some weight should be given to the action of the board of visitors, upon which there is an able lawyer. In refusing to act, they say "they are not satisfied that the visitors have a right to review the action of the trustees," which, it seems to me, is equivalent to saying, in this case, that in the opinion of the visitors they have no such right.
In the event of the granting of the writ by the court, I am not satisfied from any evidence which I have that the visitors would vote not to remove and affiliate, if they had the power. An opinion of an Attorney-General is quoted by the petitioners, as follows : —
It is not necessary that the Attorney-General should be satisfied that the information which he is called upon to sign can be maintained. If the questions raised by it are doubtful, and the matter is one of public impor- tance, it is his duty to sign the information, even though he may be of opinion that it cannot be maintained. (Vol. II., pp. 635, 636.)
But in this case, if there is a technical question which might be tried out, I do not believe in sanctioning the expenditure of trust funds to try out such a question in the courts, when, in all probability, no public advantage will be served.
Upon a mature and impartial consideration of all the circum- stances, I am clearly of opinion that, in the exercise of the dis- cretion entrusted to the Attorney-General, I should not sign the petition.
Peirce & Wadsworth, for the petitioners. Burton P. Gray, for the respondent.
DANA MALONE, ATTORNEY-GENERAL. 593
Attorney-General ex rel. v. Louis X. Richer.
Statute — General and Particular — City Charter oj Marl- borough — Superintendent of Streets — Appointment — Attor- ney-General — Quo Warrajito — Local Question.
R. L., c. 26, § 36, which pro\'ides that "uo member of the city council shall, during the term for which he was chosen, either by appointment or by election of the city council or of either branch thereof, be eligible to any office the salary of which is payable by the city," is superseded with respect to the city of Marlborough by St. 1890, c. 320, § 17, the charter of such city, pro\adiDg that " no person shall be eligible by appointment or election . . . to any office of emolument the salary of which is payable out of the city treasury, who at the time of such election or appointment is a member of the city council; " and an alderman of such city elected for the year beginning in January, 1908, who has taken the oath of office and participated in the business transacted by the board of aldermen, and upon the sixth day of January has resigned therefrom, may legally be appointed superintendent of streets by the mayor.
An information in the nature of quo warranto will be signed by the Attorney- General only when the construction of a law which affects the public generally is involved, or where the Commonwealth is interested in the determination of the question raised; and he will not sign such an information for the purpose of determining a question purely local in its application.
This was a petition to the Attorney-General for the use of his i908
■^ "" . September 6
name upon an information in the nature of quo loarranto aganist
Louis N. Richer, to try his title to the office of superintendent of streets in the city of Marlborough. Upon hearing, it ap- peared that the respondent was elected an alderman of the city of Marlborough for the year beginning in January, 190S, and that on the sixth day of January, 1908, he duly took the oath of office and participated in the business transacted by tiie board of aldermen, at least to the extent of taking part in the election of a chairman of such board; that thereupon he re- signed from the board of aldermen, and was upon the same day, to wit, Jan. 6, 1908, appointed superintendent of streets by the mayor of said city, such nomination being duly confirmed by the board of aldermen. The term of office for which the respondent was so appointed was for a term of one year from the first day of February, 1908, and he duly qualified and took the oath of office as superintendent of streets on Jan. 16, 1908.
594 OPINIONS OF THE ATTORNEY-GENERAL.
The petition before me appears to be based upon the pro- visions of R. L., c. 26, § 36, which is as follows: —
No member of the city council shall, during the term for which he was chosen, either by appointment or by election of the city council or of either branch thereof, be ehgible to any office the salary of which is paj'-able by the city. (See St. 1886, c. 117.)
If the provision above quoted were applicable to and gov- erned the appointment of the respondent, there could be httle doubt of the illegality of such appointment. The charter of the city of Marlborough, however, enacted in St. 1890, c. 320, con-*' tained in section 17 a provision to the effect that: —
No person shall be ehgible by appointment or election by the mayor and aldermen, or city council, to any office of emolument the salary of which is payable out of the city treasury, who at the time of such election or appointment is a member of the city council.
It is admitted that the respondent, at the time of his appoint- ment to the office of superintendent of streets, had duly re- signed from the office of member of the board of aldermen, and was not, therefore, a member of the city council at the moment of such appointment. R. L., c. 26, § ,36, above quoted, was originally enacted in 1886, four years prior to the passage of the act chartering the city of Marlborough, which was chapter ^ 320 of the Acts of 1890; so that the provision in the charter was considered by the Legislature with chapter 117 of the Acts of 1886 in mind. It must therefore have been intended by the Legislature to change the law so far as the city of jNIarlborough was concerned.
That a subsequent legislative act repeals all prior acts repugnant to it, is a principle which results from the unlimited nature of legislative power. The last expression of the legislative will must be carried into effect, as the law of the land. Brown v. Lowell, 8 Mete. 172.
It would therefore seem that the legislative intent was to re- peal the general law as to the city of Marlborough. It has been said that it would require very strong terms in a general act to
DANA MALONE, ATTORNEY-GENERAL. 595
show that it was intended to supersede a special act in order to hold it to be such a repeal.
Here the two statutes are irreconcilable; they cannot be read together; they cover the same subject-matter; and it therefore appears to be the legislative will to repeal the prior general law so far as Marlborough is concerned, it having been done with full knowledge on the part of the Legislature of the provisions of the statute of 188G.
This being the legislative will, I feel it my duty to rule, what I believe to be the law, that the provision in the charter of the city of Marlborough must govern, and that if it is desired to change to conform to the general law, legislation should be asked for.
-^ Informations in the nature of quo warranto, under the rule established by my predecessors, are signed by the Attorney-Gen- eral only when the construction of a law affecting the Common- wealth generally is involved, or when the Commonwealth, as such, is for any reason interested in the determination of the question; but when the question is purely local, and one in which the Commonwealth is in no way interested, the reason for signing does not exist. In this case the question is a local one, involving the construction of the city charter of Marl- borough alone; and I am unable to find such a case, presenting questions as to the construction of any law affecting the Com- monwealth generally, as requires the Attorney-General to grant the use of his name to an information in the nature of quo warranto.
For both of the reasons above named the application is there- fore refused.
William M. Brigham, for the petitioner.
James W. McDonald, city solicitor, for the respondent.
-^
596 OPINIONS OF THE ATTORNEY-GENERAL.
MEMORANDUM.
Chapter 86 of the Resolves of 1908.
Flowage of Land in this Commonwealth by Erection of Dam in Connecticut — Proceedings at Laiv — Suits between the States.
The Attorney-General has no authority to prosecute claims for the benefit of private individuals except in the single instance of the unascertained individuals who may benefit by a public charitable trust. The lawful erec- tion of a dam in the State of Connecticut by a Connecticut corporation, which results in the flowage of certain lands and highways within the Commonwealth at certain times and seasons, does not cause damage of such serious magnitude as would justify the Commonwealth in bringing legal proceedings in courts of the United States.
By resolve of the Legislature approved May 1, 1908, it was provided that: —
The attorney-general is hereby authorized and directed to inquire and detennine to what extent, if any, the sovereignty of the commonwealth has been violated by the Berkshire Power Company, a Connecticut cor- poration, which, by the erection and maintenance of a dam across the Housatonic river in the state of Connecticut, some distance southerly of the line between said, state and the town of Sheffield in this commonwealth, is alleged to have overflowed lands and highway in said town, causing great hindrance to public travel and menacing the public health. And the attorney-general is authorized to institute such proceedings in the premises in courts outside of this commonwealth as he may deem expedient, in the name and at the expense of the commonwealth.
This resolve is to be construed as calling the attention of the Attorney-General to the situation which exists with ref- erence to the construction by the Berkshire Power Company, a Connecticut corporation, of a dam across the Housatonic River in the State of Connecticut, and the consequent flow- ing of adjacent lands in the town of Sheffield, in the Com-
DANA MALONE, ATTORNEY-GENERAL. 59;
monwealth of Massachusetts, which is stated to have caused great hindrance to public travel and has menaced the public health. From so much of the resolve as authorizes the At- torney-General to institute proceedings in courts outside the Commonwealth, it may further be inferred that it was the de- sire of the Legislature that, should conditions warrant it, an appropriate proceeding should be brought in the courts of the United States or in the courts of Connecticut for the purpose of abating the alleged nuisance.
In accordance with the desire of the Legislature as expressed in this resolve, I have made a careful investigation of the ques- tion presented therein, and have twice visited the locality where the effect of the dam referred to is manifested, once in the company of a competent engineer.
The facts in the case are, briefly stated, that the Berkshire Power Company, a corporation organized under the laws of Connecticut for the purpose, among others, of owning, con- structing and operating power plants of various kinds for gen- erating electricity, has constructed a dam across the Housatonic Tiiver at North Canaan, Conn., the height of such dam being al)out 6 feet, exclusive of flash boards. It is said that, taking into consideration all the circumstances, the difi'erence between the water above and below the dam is approximately 8 feet. It further appears that the country above the dam is, com- paratively speaking, flat, and that the raising of the water. even to the extent specified, results in the flowing of a con- siderable area of riparian land, including to some extent two or three of the highways of the town of Sheffield.
No detailed estimate of the damage to the highways has been presented to me. The flowed area is not permanently below the level of high-water mark, except as to a very small area, and the only effect of such flowing, of which I am ad- vised, is to place water upon such highways and land at cert am times and seasons, especially during what are called the spring freshets, and to render a certain area of the land in the village of Sheffield swampy. The dam of the Berkshire Power Com- pany was erected under express authority of the State of Con-
598 OPINIONS OF THE ATTORNEY-GENERAL.
nectlcut in Special Acts of Connecticut, 1905, chapter 374, an act which provides, for the payment of damages to any person whose property is injured by the erection or maintenance of such dam.
Attempts have been made to settle the damages so occa- sioned to Massachusetts land owners, but in some cases these have failed, and there has been considerable litigation in the federal courts. It was there attempted to obtain an injunction against the company, but it was jBnally held that the com- plainant was estopped from claiming this form of relief, for the reason that he had participated in negotiations for a settlement. See Griffith v. Berkshire Power Co., and Hughes v. Berkshire Poicer Co., 158 Fed. 219. The court did, however, intimate that in the same proceeding the complainants might have their damages assessed. See also Andrus v, Berkshire Power Co., 145 Fed. 47, 147 Fed. 76, and 203 U. S. 596. It is clear, moreover, that owners of property in Massachusetts who are damaged have a remedy under the Connecticut statute, should they go into Connecticut to enforce it. Brickett v. Haverhill Aqueduct Co., 142 Mass. 394.
In any event, however, the Attorney-General has no author- ity to prosecute claims for the benefit of private individuals, except in the single instance of the unascertained individuals who may benefit by a public charitable trust; and there his power and duty in the premises rest upon the benefit which accrues to the public generally by the proper administration of a charitable trust, rather than upon any benefit which may accrue to the individuals whom, because they are unascertain- able, he represents. Even if the State should make the claims of those individuals who have been damaged in their property rights its own, and should attempt to pursue such claims in the courts of the United States, where alone they may be so pursued, it would be unavailing. See New Hampshire v. Louisiana, 108 U. S. 76. If, therefore, any action upon the part of the Attorney-General is required in the premises, it must be upon the ground that the public health, convenience and safety are affected to such a degree as to constitute a
DANA MALONE, ATTORNEY-GENERAL. 599
public nuisance, or that the rights of the Commonwealth of Massachusetts, as a sovereign State, have been invaded, to such an extent as to justify an appeal to the Supreme Court of the United States for redress. It may be assumed that if the Commonwealth w^ere dealing with a private individual or corporation within the limits of its jurisdiction, the flowing of the highways would constitute a public nuisance to the extent that such individual or corporation might be indicted and prosecuted therefor, if there were no reasonably proper ground for such flowage. It does not follow, however, that because an obstruction of the highway might be made the subject of a criminal indictment, it is therefore, and for that reason alone, a proper ground for action by the Attorney-General.
But it may be assumed that if an individual or corporation within the jurisdiction of the Commonwealth had committed the acts complained of, such acts, if unauthorized, would justify interference by appropriate proceedings upon the part of the Attorney-General in the interests of the general public who use the highways. The precise question to be determined is, therefore, whether or not such acts constitute a sufficient ground for a proceeding by the Commonwealth, by its chief law officer, in the Supreme Court of the United States, to vindi- cate its sovereignty or to protect the lives or property of its inhabitants from the acts of a citizen of another State, — for such an action can be brought in no inferior court. Article III., section 2 of the Constitution of the United States provides that the judicial power of the United States shall extend to "con- troversies betw^een two or more states," and controversies "bc- tw^een a state and citizens of another state;" and by the same article and section it is also provided that in cases "in which a state shall be a party, the supreme court shall have original jurisdiction." See New Hampshire v. Louisiana, lOS U. S. 70, 86. Any action upon the facts here presented would un- doubtedly be an action by a State against the inhabitants of another State, within the meaning of the Constitution, and would therefore have to be brought in the Supreme Court of the United States. That such an action will lie, has long been
600 OPINIONS OF THE ATTORNEY-GENERAL.
established. Thus it was said in the late case of Georgia v. Tennessee Copper Co., 206 U. S. 230, 237: —
The caution with which demands of this sort, on the part of a State, for the rehef from injuries analogous to torts, must be examined, is dwelt upon in Missouri v. Illinois, 200 U. S. 496, 520, 521. But it is plain that some such demands must be recognized, if the grounds alleged are proved. When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining gtiasi-sovereign interests; and the alternative to force is a suit in this court. Missouri v. m'nois, 180 U.S. 208, 241.
But the case presented must be one of serious and general interest to the complainant. So, in Missouri v. Illinois, 200 U. S. 496, 521, the court said: —
Before this court ought to intervene, the case should be of serious magni- tude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all con- siderations on the other side. See Kansas v. Colorado, 185 U. S. 125.
Is the case presented by the situation in the town of Shef- field such a case that the highest court in/ the land would hold that it was of such serious magnitude as would, between sov- ereign and independent States, justify a resort to war? See Missouri v. Illinois, 200 U. S. 518, 520. I say without hesi- tation that it is not; that injuries of the character here com- plained of have existed and have been tolerated if not recognized by the courts of the several States for a long time. Indeed, our own court has declared the principle which governs acts of the character here set forth. In Mannville Co. v. Worcester, 138 Mass. 89, the court expressly recognized the possibility of creating an easement upon land in one State by acts accom- plished in another. That case was an action of tort by the owner of a mill site in the State of Rhode Island for the diver- sion of waters in Massachusetts. The court held that there was no distinction between flowage and diversion, and in dis-
DANA MALONE, ATTORNEY-GENERAL. 601
posing of a contention that a servitude could not be created in one State in favor of lands in another State, said : —
"We are unable to agree to tliis proposition upon cither principle or authority. Every decision and dictum that we have found, bearing on the precise point, is the other way. Slack v. Walcott, 3 Mason, oOS, 51(5; Thayer v. Brooks, 17 Ohio, 489; Stillman v. White Rock Manfg. Co., 3 Woodb. & M. 538; Rimdle v. Delaware & Raritan Canal, 1 Wall. Jr. 275, S. C. 14 How. 80; Foot v. Edwards, 3 Blatchf. 310.
We think that the cases wMch recognize civil, and even criminal, lia- bility for flowing land in one State by means of a dam in another, are hardly less pertinent. Howard v. Ingersoll, 17 Ala. 780; Wooster v. Great Foils Manfg. Co., 39 Maine, 246; Eachus v. Illinois & Michigan Canal, 17 111. 534; Armendiaz v. Stillman, 54 Texas, G23; State v. Lord, 16 N. H. 357. The defendant admits these cases to be law, and tries to distinguish them. But we cannot assent to the distinction between discharging and with- drawing water.
The court further observes : —
Of course the laws of Rhode Island cannot subject Massachusetts land to a servitude, and, apart from any constitutional considerations, if there are any, w-hich we do not mean to intimate, Massachusetts might prohibit the creation of such servitudes. So it might authorize any acts to be done within its limits, however injurious to lands or persons outside them. But it does not do either. It has no more objection to a citizen of Rhode Island owning an easement, as incident to his ownership of land in that State, than it has to his owning it in gi'oss, or to his purchasing lands here in fee. Questions might be conceived as to the transfer of such easements, but they do not arise here. Slack v. Walcott, iibi supra. So far as their creation is concerned, the law of Massachusetts governs, whether the motlc of creation be by deed or prescription, or whether the right be one whicli is regarded as naturally arising out of the relation between the two estates; being created, the law of Rhode Island, by permission of that of Mas.sa- chusetts, lays hold of them and attaches them in such way as it sees fit to land there, Massachusetts being secured against anj^liing contrarj' to its views of policy by the common traditions of the two States, and by the power over its owti territorj^ which it holds in reserve.
In speaking of this case the court said, in Mulhall v. Fallon, 176Mass. 266, 267: —
We come then to the more difficult question, whether the plaintiff can claim the benefit of the act. However this may be decided, it is not to be
602 OPINIONS OF THE ATTORNEY-GENERAL.
decided upon any theoretic impossibility of Massachusetts law conferring a right outside her boundary lines. In Matmville Co. v. Worcester, 138 Mass. 89, where a Rhode Island corporation sought to recover for a diver- sion of waters from its mill in Rhode Island by an act done higher up the stream in Massachusetts, it was held, following earlier decisions, that there was no such impossibility, although the point was strongly urged. It is true that legislative power is territorial, and that no duties can be imposed by statute upon persons who are within the limits of another State. But rights can be offered to such persons, and if, as is usually the case, the power that governs them makes no objection, there is nothing to hinder their accepting what is offered.
Moreover, the Supreme Court of the United States has recognized the same Hmitation, for in the case of Missouri v. Illinois, 200 U. S. 496, the court said (p. 521): —
But it does not follow that every matter which would warrant a resort to equity by one citizen against another in the same jurisdiction equally would warrant an interference by this court with the action of a State. It hardly can be that we should be justified in declaring statutes ordaining such action void in every instance where the Circuit Court might intervene in a private suit, upon no other ground than analogy to some selected sys- tem of municipal law, and the fact that we have jurisdiction over contro- versies between States.
The nearest analogy would be found in those cases in which an easement has been declared in favor of land in one State over land in another. But there the right is recognized on the assumption of a concun-ence between the two States, the one, so to speak, offering the right, the other permitting it to be accepted. Mannville Co. v. Worcester, 138 Massachusetts, 89. But when the State itself is concerned, and by its legislation expressly repudiates the right set up, an entirely different question is presented.
It seems to me that we have here exactly the case of a servitude created in one State upon lands situated in another, against which no provision has been enacted in the State where the land is situated, and where full and adequate means of assessing damages have been afforded to individuals or corpora- tions in their property; and that, so far as concerns the flowing of the land and the injury to private owners, there is no ground for action upon the part of the Attorney-General.
DANA MALONE, ATTORNEY-GENERAL. G03
Upon the score of public health there is no evidence to show that any such situation exists as requires the intervention of the Supreme Court of the United States. The general public appears to be affected only to a limited extent, even by the flowing of riparian land and a section of some hundred yards in length of a highway and lesser damages to one or two other highw^ays in the town of Sheffield. When one contrasts the statement of the situation at Sheffield, of the portion of the public affected, and of the very slight grounds for action upon the part of the Commonwealth as a sovereign State, with the situation of which the State of Georgia complained, in Georgia V. Tennessee Copper Co., supra, w^here the allegation of the bill, that a wholesale destruction of forest, orchard and crops was going on, and other injuries were being done and threatened in five counties, was amply sustained by the proof ofl'ered to the court, who found that noxious gas was carried by the wind great distances and over great tracts of Georgia land, — it seems hardly necessary to seek further authority for the prop- osition that it would be impossible to prove a case based upon the condition in Sheffield, which would bring an action by the Commonwealth against the Berkshire Power Company, a cor- poration and citizen of Connecticut, within the principle laid down by the Supreme Court of the United States as governing action by a State against a citizen of another State.
INDEX-DIGEST.
ABANDONMENT — Of State Highway 113 See State Highway. 2.
ABATEMENT — Of Nuisance — Juris- diction of State Board of Health 85 See State Board of Health. 2.
ACCEPTANCE— Of Statute — Approved
by Majority of Qualified Voters 88 See Statute. 1.
Of Statute relating to Hours of Labor
— Cities and Towns . . 567
See Labob. 8.
ACCIDENT AND HEALTH DISA- BILITY INSURANCE.
See Insurance.
ADJUTANT GENERAL — Volunteer Militia — Constitutional Law — Term of Office . . .546
The provisions of chapter II., section I., Article X. of the Constitution of the Common- wealth, that "the governor shall appoint the adjutant general," does not impose a limitation upon the authority of the General Court to fix and determine the tenure of office of the adju- tant general, and a provision in a proposed act having for its purpose the revision of the organization of the volunteer militia, that "the term of office of the adjutant general shall be five years from the passage of this act," would not be unconstitutional.
ADMINISTRATOR — Transfer to, of
Bonds of Commonwealth . 104
See Treasurer and Receiver- General.
ADOPTION — Of State Minor Ward —
Rehgious Faith . . .124
See State Board of Charity.
AGENT — Of Insurance Company — Commission on Policy on Life of — Rebate .... See Insurance. 3.
47
ALCOHOL — In Proprietary or Patent Medicine or Food Preparation Receptacle — Label — State- ment of Contents . • .• 216 Where a proprietary or patent medicine or food preparation containing alcohol is put up in a glass bottle enclosed in a pasteboard
ALCOHOL — Continued.
WTajjpcr, the pro\asions of St. 1906, c. 380, § 1, as amended by St. 1907, c. 259. { I. requiring that "upon evcr>- package, bottle or other receptacle holding any propric(ar>- or patent medicine or any proprictar>- or patent food preparation which contains alcohol . . . shall he marked or inscribed a statement on the label of tlie quantity or proportion of each of said sulistances contained therein," are com- plied with if a proper statement is inscril>o<i upon the pasteboard wrapper, so long lus .-tich bottle is contained therein. If, however, the glass bottle is removed from such wrai)i>erand separately sold or offered for sale, the statutes above cited would require a statement of the quantity or proportion of alcohol ct>ntaine<l in such bottle to be inscribed upon the bottle itself.
ALLOWANCES FOR TRAVEL — Em- ployees of Cuuiuioiiwciilth . 292 See Fees.
ALTERATION — Of Location of Suto
Highway . . . .113
See St.^te Highway. 2.
AMENDMENT — To Constitution of the
United States — Income Tax . 267 See Constitutional Law. 5.
To Constitution of Commonwealth 370
(See Constitutio.val Law. 11.
To Constitution — Taxation of Wild
or Forest Lands . .531
iSee CoNSTrriTio.vAL Law. 24.
ANIMALS — Slaughfer or KillinK — Healthy Condition — Meat fnmi Carca-s.-^cs of Cattle infcctoil with Tuberculosis — Sale • 20s
St. 1908, c. 329, providiiiK in !«ection 1 that
"the sale, offer or exposure for sale, or dcUvco'
for use as food, of the rarraas ... of any
animal which has come to i* ■ ' '■ "• ■"'^'
manner or by any moan.s i
slaughter or killing while in a
. . . shall Ix? punished by :
than two hundred dollars or
for not more than six ni' :
permit meat derived from tin- ■
cattle infected to any degree witli
or any other disea.se to l>c sold as !• "i .■..>...;<
this Commonwealth.
606
INDEX-DIGEST.
ANTI-TRUST ACT — Acquisition of Stock and Bonds and Other Evi- dences of Indebtedness of the Boston & Maine Raib-oad by the Boston Railroad Holding Com- pany — Restraint of Trade . 233 See Boston Railroad Holding Company. 1.
APPROPRIATION — Public Purpose — Liability of Commonwealth for Act of Insane Person . . 151
See Constitutional Law. 1.
Public Purpose — Society, School
or Institution under Sectarian
Control 153
See Constitutional Law. 2.
Public Purpose — Money not di- rectly raised by Taxation . . 160 See Constitutional Law. 3.
Public Purpose — Museum of Fine Arts .....
See Constitutional Law. 13.
380
For Repayment of Money paid under
Mistake of Fact or Law — Moral Obligation .... 503
See Constitutional Law. 21.
For Homes for Mechanics, Laborers
or Other Wage Earners — Public Purpose . . . . .521
ASee Constitutional Law. 22.
Of Public Funds for Reclamation and
Sale of Wet Lands — Public Purpose ..... 538 iSee Constitutional Law. 25.
APPROPRIATIONS — Annual — State- ment of Amounts required for Ensuing Fiscal Year — Verifica- tion of Estimates — Examination and Audit of Books of Account . 346 See Governor and Council. 2.
For State Commissions, Departments
or Institutions — Employment of Persons to investigate State- ments and Estimates — Contract — Compensation . . . 441
See Governor. 6.
APPROVAL — Of Appointment and Compensation of Officers of State Institution .... 313 See Westborough State Hos- pital. •
Of Bonds of Street Railway Company
— 'By Board of Railroad Com- missioners — Sale at Less than Par Value .... 329
See Street Railways. 1.
ARMORIES — Use for Rallies of Politi- cal Parties and Meetings for the Discussion of Public Questions . 344 See Militia. 1.
Construction of
See Militia. 2.
ARMORY COMMISSION
tion of Armories See Militia. 2.
. 358
Construc-
358
ARREST — For Violation of Rules and Regulations of Metropolitan Park Commission . . .96
See Metropolitan Park Com- mission. 2.
ASSESSMENT — Annual, for Taxation — Omitted Property — Removal of Taxpayer from the Common- wealth 266
See Taxation. 7.
ASSESSMENT INSURANCE.
See Insurance.
ASSESSORS — Term of Office See Towns. 1.
337
ASSISTANT COMMISSIONER OF THE PENAL INSTITUTIONS DEPARTMENT OF THE CITY OF BOSTON . 324
See Civil Service. 7.
ATTORNEY-GENERAL — Legislative Committee 7— Preparation and Draft of Proposed Legislation 111 It is not within the scope of the duties of the Attorney-General to draft proposed legislation, or to advise a committee of the Legislature except upon bills actually pending before it; but if so requested he may, in his discretion and as matter of courtesy, submit a draft of a bill for the consideration and assistance of such committee.
2. Duties — Senate — Authority to
require Opinion within Fixed
Time 424
The Senate has no authority to fix a limit of
time within which the Attorney-General is to
perform his duties or any of them.
3. Opinion — Statement of Facts —
Monopolies — Public Policy — Legislature .... 425
The Attorney-General is not required to express an opinion upon any case or to take any other action relative thereto upon the request of a State officer, board or commission unless sufficient facts are stated to enable him to come to a definite conclusion in the premises.
The determination of the attitude of the Commonwealth toward monopolies is primarily
INDEX-DIGEST.
607
ATTORNEY- GENERAL — Continued. a function of the Legislature, and does not fall within the scope of the duties of the Attorney- General.
4. Order fixing Limit of Time for
Performance of Duty to advise General Court .... 471 The General Court has no authority to fix a limit of time within which the Attorney- General shall discharge his statutory duty of advising the General Court or either branch of it.
5. Public Charitable Trust — Trust
Fund — Mandamus . . 588 I
Lender the provisions of R. L., c. 7, § 6, 1 which makes it the duty of the Attorney- General to enforce the due application of funds given or appropriated to public charities within the Commonwealth, and to prevent breaches of trust in the administration thereof, the Attorney-General will not sanction, by the use of his name upon a petition for a writ of mandamus, the expenditure of trust funds for the purpose of deciding a purely technical question, when in his opinion no public ad- vantage will be served thereby.
6. Quo Warranto — Local Question —
Statute — General and Particular
— City Charter of Marlborough
— Superintendent of Streets — Appointment .... o93
R. L., c. 26, § 36, which provides that "no member of the city council shall, diu-ing the term for which he was chosen, either by ap- pointment or by election of the city council or of either branch thereof, be eligible to any office the salary of which is payable by the city," is superseded with respect to the city of Marlborough by St. 1S90, c. 320, § 17, the charter of such city, providing that " no person shall be eligible by appointment or election ... to any office of emolument the salary of which is payable out of the city treasury, who at the time of such election or appointment is a member of the city council;" and an alder- man of such city elected for the year beginning in January, 1908, who has taken the oath of office and participated in the business trans- acted by the board of aldermen, and upon the sixth day of January has resigned therefrom, may legally be appointed superintendent ol streets by the mayor.
An information in the nature of quo war- ranto will be signed by the Attorney-General only when the construction of a law whicM affects the public generally is involved, or where the Commonwealth is interested in the determination of the question raised; and he Mdll not sign such an information for the pur- pose of determining a question purely local in its application.
Authority to bring Proceedings for
the Benefit of Private Individ-
uals . . V • 9fi ■
See Constitutional Law. JO.
AUTOMOBILES — Cities and Towm — Sp('ci;il Regulations — Statutory Construction . . . .20
A regulation adopted by the selectmen of a town, fixing the speed limit for automobiles and niotor cycles throughout .such town "in fire district, eight miles per hour; o^i'-^vV. fifteen mUes per hour," is a >; within the meaning of St. 1 ■ statute in force at the time . .
although the limit so fixed coini-idcs «iiii iho extreme limit established by such statute, mid is unaffected by the enactment of St. 1906, c. 412, § 1, which established a rate of twelve mUes in the thickly settled or bu-iiinc^ part of a city or town, and a rate of 'wenty mile« outside thereof, as the extreme limit of speed.
2. Cities and Towns — Special Regu- lations — Posting — Sign Boards — Massachusetts Highway Com- mission . . _ . 78 Under the provisions of St. 1903, c. 473, J 8, as amended by St. 1905, cc. 31 1 and 366, and by St. 1906, c. 412, which enacted that local au- thorities "may make special regulations as to the speed of automobiles and niotor cycli^ and as to the use of such vehicles on r^i^i'"^'''^'" roads or ways, including their c<ii elusion therefrom ..." a rcgulati by the selectmen of a town restricting , : of automobiles and motor cycles upon ilie streets of the thickly settled portion of «uch town to nine miles per hour i- '" ' - tion; and, in the absence of ; provided, it becomes the (lut\- setts Highway Commission to pool suclj rc;;u- lation conspicuously on sign boards at such points as the commission may deem neces- sary.
3. Registration by Dealer — Expira- tion of Registration -119 The provision of St. 1903. c. 473, SI.** amended by St. 1907. c. 5M). § 1. that llie registration of ever>- automobile or motor cycle shall expire upon the first day of I - ' "' each year," is applicable not only biles or motor vehicles which air single individuals, but .also to ."iniihir v.i.M..^ when owned or controlled by dealers.
Loss by Collision — Insurance . 39
See Insurance. 2.
License to operate — RevocaUon —
Conviction • . o.u
See License. 5.
BACK BAY FENS — Erection <. I. -'"""1 ^^
HdUsc on 't _■ 1ft '
:icc CO.NSTITUTIONAL LAW. lO.
BALLOT BOXES — ExaininaUon of. by Ballot Law Cominis-sion — Dele- gation of Legisl.uive Authority — Constitutional Law . See Elections.
507
608
INDEX-DIGEST.
BALLOT LAW COMMISSION — Ex- amination of Voting Machines, Ballot Boxes and Counting Ap- paratus — Delegation of Legisla- tive Authority — Constitutional Law ..... 507
See Elections.
"BANK" OR "BANKING" — In Name
or Title of Corporation . . 250
See Corporation. 3.
BENEVOLENT CORPORATION — Au- thority to increase Holding of Real or Personal Property . 31
See Charitable Corpora- tion. 2.
BILLS AND RESOLVES — Action of
Governor — Five Days — Sun- days — Holidays . . . 414 See Governor. 5.
Veto — Return by Executive —
Limit of Time . . . .552
See Governor. 7.
BOARD OF RAILROAD COMMIS- SIONERS — Procedure — Questions of Law or Fact — Rulings . . . . .511
The pro\asion of St. 1906, c. 463, Part III., § 157, that the Supreme Judicial Court or the Superior Court shall have jurisdiction in equity " to review, annul, modify or amend the rulings of any State board or commission relative to street railways ..." does not require the Board of Railroad Commissioners to make formal rulings upon questions of law or issues of fact with respect to which the performance of their duties does not call upon them to make a decision.
If, however, the determination of a question of law is involved in the decision of the Board upon any matter of administration properly before them, they may express such determina- tion in the form of a ruling.
Approval of Bonds of Street Railway
Company — Sale at Less than Par Value . . . .329
See Street Railways. 1.
Certification of Bonds of Street
Railway Company as Legal In- vestment for Savings Banks — Returns — Returns including Nine Months eiiding June 30,
1910 338
See Savings Banks. 5.
BOARD OF REGISTRATION IN PHARMACY.
See Registered Pharmacist.
BOARDS OF HEALTH — Causes of Sickness — Contagious Diseases — Right to enter Schools — In- spectors of Health . . . 196
BOARDS OF HEALTH — Continued.
A local board of health may, under its gen- eral authority conferred by R. L., c. 75, if in fact a contagious disease as a cause of sickness is found in a school, or if such board has reason- able and proper grounds for believing that a contagious disease may be found therein, enter such school and make all necessary examina- tions in the premises, and, if pupUs suffering from contagious diseases dangerous to the public health are found, may remove such pupils to a hospital or quarantine station, but, in the absence of any reasonable grounds for believing that contagious disease existed in a school, such board or its agents would have no authority to enter therein for the purpose of making an examination of the physical condi- tion of the pupils in attendance.
State inspectors of health, acting under their general powers as defined in St. 1907, c. 537, I 3, providing that such an inspector "shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his dis- trict," would not be authorized to enter a school or hospital for the purpose of making a physical examination of individual pupils or patients.
Contagious Diseases — Quarantine
— Expense .... 137 See Pauper. 4.
BOATING — Regulation of Public Use of
Sources of Water Supply — Arti- ficial Reservoirs . . . 364 See State Board of Health. 5.
BOILER INSPECTION DEPART- MENT — Qf Massachusetts Dis- trict Police — Chief Inspector . 492 ^ee Massachusetts District Police.
BOND — Official — Surety — Married
Woman — Wife of Principal . 260 Under the provisions of R. L., c. 153, § 2, that "a married woman may make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole, except that she shall not be authorized hereby to make contracts with her husband," a married woman may, as surety, sign the official bond of her husband.
BONDS — Of Corporation — Value in Excess of Value of Mortgaged Real Estate . . . .24
See Taxation. 1.
Of a Railroad Corporation having
no Completed Roadbed — Sav- ings Banks — Legal Investments 43 See Savings Banks. 1.
Of Domestic Street Railway Com- pany — Acquisition of, by For- eign Railroad Corporation . 53 See Foreign Corporation. 1.
INDEX-DIGEST.
009
BONDS — Continued.
Registered, of Commonwealth —
Signature of Governor — Rubber Stamp . . . . .65
See Governor. 2.
Of Commonwealth — Transfer to
Executor or Administrator . 104 See Treasurer and Receiver- General.
Of the New York, New Haven &
Hartford Railroad Company — Authorized Investments for Sav- ings Banks .... 183 See Savings Banks. 2.
Of Boston & Maine Railroad — Ac- quisition by Boston Railroad Holding Company — Restraint of Trade . . . .233 See Boston Railroad Holding Company. 1.
Of Boston Railroad Holding Com-
panv — Exemption from Local Taxation . . . .280
(See Boston Railroad Holding Company. 2.
Of Street Railway Company — Ap- proval by Board of Railroad Commissioners — Sale at Less than Par .... 329 See Street Railways. 1.
Of Street Railway Company —
Certification as Legal Invest- ment for Savings Banks by Board of Railroad Commis- sioners ..... 338 See Savings Banks. 5.
Of Domestic Electric Light Corpo- ration secured by Mortgage on Real Estate Taxation — Exemp- tion 431
See Tax.\tion. 10.
Of Terminal Corporation — Legal
Investment for Savings Banks . 462 iSee Savings Banks. 6.
BOSTON, CITY OF — Certification
of Pay Roll of Police • .164
.See Civil Service Commission.
Building Regulations . • • 2G5
»See Boston State Hospital.
City Charter — Heads of Depart- ments — Sealers of Weights and Measures . • . ■ 296 See Civil Service. 6.
Assistant Commissioner of the Penal
Institutions Department . . 324
>See Civil Service. 7.
BOSTON, CITY 0¥ — Cnufinu.d.
Letters and Memoranda ri'ccived in
the Investigation of .Appointees
to Office — Public Records . 351
iSee Public Records. ;i.
Civil Service — Veterinary Inspector
— Veterinarj- Medical In.spector
— Veterinarian . . . 368 See CrviL Service. 9.
Appropriation for Museum of Fine
Arts 3M)
See Constitutio.nal Law. l.S.
BOSTON & MAINE RAILROAD —
Extension of Line — Cuii^oiida- tion with other Con>orations — Liability to Forfeiture of Charter 199 The ownership and control of the Portsmouth Street Railway and the purchase of the Eastern Railroad Company, both corporations of the State of New Hampshire, by the Boston & Maine RaUroad, were duly authorized by the Legislature of this Commonwealth, and Buch acquisition and control do not render the charter of the Boston & Maine Railroad liable to forfeiture under the provision of .St. 1906, c. 463, part II., § 47, that "if a railroad cor- poration owning a railroad in this conmion- wealth and consolidated with a corporation owning a railroad in another state . . . without authority of the general court, . . . extends its line of railroad, or consolidates with any other corporation, . . . the charter and franchise of such corporation shall be subject to forfeiture."
The acquisition and control of the Concord Street Railway and the extension of its line from Concord to Manchester, by the Concord & Montreal Railroad Company, was an acquisition and extension of a New Hampshire corporation of its own line, under projHT au- thority from the State of New Hanipf'hire, and such acquisition and extension do not render hable to forfeiture under the provi.sion of law above cited the charter of the Boston «S: Maine Railroad, which operates the Concord & Montreal Railroad under a lease authoriicd by the Legislature of this Commonwealth.
Acquisition of Stock, Bonds and
Other Evidences of Indcbtednesa
— Restraint of Trade . 233 See Boston Railroad Holding Company. I .
BOSTON ELEVATED RAILWAY COMPANY — (•..ii.-titiiti..ii:il Law— Hate.-i — Str.ct .md Ele- vated Railway Con>oration» — Impairment of Obliiiation of Contract — Discrimmation — Equal Protection of Law . . 300
A propose*! bill, providing th.-u •..i, rill -treel and elevated railways in thi." ''|n
the fares which are now five "<*
reduced to three cents between t,., ,, ,.i... ol
610
INDEX-DIGEST.
BOSTON ELEVATED RAILWAY
COMPANY — Continued. sis and eighty in the morning and five and seven in the evening," would, in the case of the Boston Elevated Railway Companj', be un- constitutional and void because it would impair the obligation of the contract estab- lished by the charter of that corporation (St. 1907, 0. 500, § 10) authorizing such cor- poration to establish and take a toll or fare not exceeding five cents, which sum should not be reduced by the Legislature during a period of twenty-five years after the passage of such statute. Such proposed bill would not be unconstitutional as to other street or elevated railway corporations as constituting so unjust a discrimination in favor of the Boston Ele- vated Railway Company and against such other companies as to deny the latter the equal protection of the laws.
2. Constitutional Law — Contract —
Free Transfers 400
St. 1897, c. 500, § 10, which provides that the Boston Elevated Railway Company may "es- tablish, and take a toll or fare, which shall not exceed the sum of five cents for a single con- tinuous passage in the same general direction upon the roads owned, leased or operated by it," which "sum shall not be reduced by the legislature during the period of twenty-five years, from and after the passage of this act," with the further provision that the Board of Railroad Commissioners may, upon petition and after notice and a hearing, reduce such toll or fare, but that such toll or fare shall not, without the consent of the corporation, be so reduced as to yield less than a certain fixed income, and which further provides that "said corporation shall also provide free transfer from elevated to surface and from surface to elevated cars at all stations of the elevated lines reached by surface lines and from one elevated car or train to another at junction points entitling a passenger to a continuous ride in the same general direction," and such further free transfers on all the surface lines as may be required by the Board of Railroad Commissioners, created a contract between the Commonwealth and the Boston Elevated Railroad Company; and a proposed amend- ment to the section above quoted, providing in part that such corporation "may establish for its sole benefit a toll or fare which shall not exceed the sum of five cents for a single continuous passage between the terminals and transfer points of said roads, and transfer checks shall be issued or transfers made on demand without additional payment, which shall entitle the passenger to a continuous ride frorn any station or transfer point to any other station or transfer point on the system," such transfers to be issued from and between midnight and 6 o'clock in the morning, on cars leaving certain specified stations, so as to render to passengers the same amount of serv- ice during the hours from midnight to 6 o'clock in the morning for the same fare as thej' receive
BOSTON ELEVATED RAILWAY
COMPANY — Continued. during the other hours of the day, is uncon- stitutional and void, for the reason that it changes the requirements as to transfers es- tablished by such contract.
BOSTON RAILROAD HOLDING COMPANY — Acquisition of Stock, Bonds, and Other Evi- dences of Indebtedness of the Boston & Maine Railroad — Restraint of Trade — Anti-Trust
Act 233
The proposed bill (now St. 1909, c. 519) incorporating the Boston Railroad Holding Company, which authorized such company to acquire the stock, bonds and other evidences of indebtedness of the Boston & Maine Rail- road, and permitted any railroad corporation existing under the laws of the Commonwealth at the date of the passage of such bill to guaran- tee the principal of and the dividends and in- terest upon the capital stock, bonds, notes and other evidences of indebtedness of the Boston Railroad Holding Company, and to ac- quire and hold such stock, bonds, notes and other e\'idences of indebtedness, is not in conflict with the pro\nsions of the so-called Anti-Trust Act, the Federal Statute of July 2, 1890 (26 Stat. 209), which provides in section 1 that "every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared illegal."
2. Taxation — Excise — Bonds —
Exemption from Local Taxation 280 _ A bill which establishes a special and dis- tinct method for the taxation of the Boston Railroad Holding Company, incorporated under the provisions of St. 1909, c. 519, for the sole purpose of acquiring and holding the capital stock, bonds and other evidences of indebtedness of the Boston & Maine Railroad, and of voting upon the stock and collecting and receiving dividends and interest upon the stock, bonds and other evidences so acquired and held, by imposing an excise tax upon such corporation and exempting its bonds from local taxation, is objectionable upon consti- tutional grounds; first, because the franchise to acquire and hold stock, bonds and other securities, exercised by such corporation, is not to be distinguished from the franchises of other corporations which have been or may be organized for similar purposes, and the impo- sition of such excise upon a single corporation, therefore, would not be reasonable, within the meaning of article IV., section I., chapter L, part the second of the Constitution of Massa- chusetts, which authorizes the Legislature to impose and levy reasonable duties and excises; and second, because there is no valid distinc- tion between the bonds of such corporation and the bonds of any other business corpora- tion which may hold securities of Hke character,
INDEX-DIGEST.
r.ii
BOSTON RAILROAD HOLDING
COMPANY — Continued. and the exemptiou from taxation of such bonds would have an efTect to render the general tax on property throughout the Commonwealth unequal and disproportionate, and so be ob- noxious to the Constitution; and the creation of such exemption, therefore, would exceed the constitutional authority of the Legislature "to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates b^ng, within the said Commonwealth," as defined in the Constitution of Massachu- setts, part the second, chapter I., section I., article IV.
BOSTON STATE HOSPITAL — Build- ing Regulations — City of Boston 265 The Boston State Hospital, of which the custody, control and management are vested, under the pro^'isions of St. 1909, c. 504, §§ 14-23, in the State Board of Insanity and the trustees of said institution, is not subject to the inspection and regulation of the officials of the city of Boston with relation to gas, elec- tric lighting and plumbing therein.
BREACH OF THE PEACE — Right
of Sheriff to require Assistance . 488 See Sheriff.
Duty of County, City or Town Au- thorities in Case of Riot . .515 See Riot.
BUSINESS — Of Unincorporated Asso- ciation — Way or Manner of transacting .... 372 See Co-operative Bank.
BUSINESS CORPORATION — Fran- chise Tax — Assessment — De- ductions . . . • 249 See Taxation. 6.
BUILDING — Storage — Iron Tank for
keeping Gasolene . • .5^
See Explosives.
Hotel — Intoxicating Liquors —
Certificate of Inspector of Fac- tories and PubUc Buildmgs — Lodging House Ten or More Rooms above the Second Story . 6iy See License. 1.
BUILDING REGULATIONS — Of
City of Boston . ■ • -^"^^
See Boston State Hospital.
BUILDINGS — Inspection of — Sanita- tion and Ventilation — Inspec- tion Department of District Police • ■ ■ i-J'^
Under the provisions of St. 1907, c. 537 § 5 and St. 1908, c. 369, the inspection department of the Massachusetts District Pohce has no
BUILDINGS — Contifui-;/!.
juri.'silicti<ju over iiiuticrs of sanitatiun or
ventilation in ljuildiiii'~ - j: i.-.t i,. ii,.i„ f^.t). other than to order c!i r
ventilating or sanit;.: .■•
necessity therefor is rciiort'-i im -u-h d'i.ri- ment by the State Board of Health.
2. Inspection of — Inspector of Fac- tories and P'lbli'- TViildinjcs — Plans — E ■ ■ • .t — Ac- comniodatiu: ir More
Employees a i - i St/jry . J.'Jl
The word "estahlishnieui," a.-, use<l in R. L., c. 104, § 22, which in part provides that "no building more than two stories in ' ■ ■'• • - ■ '"h is designed to be used above the- in whole or in part, as a factory. -r
mercantile or other establishincal aul has accommodations for ten or more employt-cs above said story, . . . shall Ije erected until a copy of the plans thereof has been deposited with the inspector of factories nnd public Imild- ings for the district in whir! 1 ! ' ' * -d
. . .", refers to a single bi i».
and does not include a nun 11 '•'o
the second story which are iudcpcudcutiy oc- cupied, and in none of which are ten or more persons employed.
Expense of destro.\-ing Gypsy and
Brown-tai) Moths and Nests — Value of Land includes BuildinR^ .'M .See Gypsy and Brown-tail Moths. 1.
CANDIDATE — Death on Morning of
Election Day — Special Election 4.'i7 Sec Election Laws. 1.
CATTLE — Infected with Tuberculosis
— Sale of Meat from Carcasses of 208 See Animals.
CERTIFICATE — Registered Pharma-
pigt — Sale of IntoxicatinK Li<|Uor 50 See Registered Pharmacist. 2.
Of AbiUtv to read and write — Em- ^^
ployment of Children . • 1 "
See Labor. 4.
Of Physician — Insane Person —
Temporary Care and Treatment .^9 See Insane Person, .i.
Of Entry of Intention of MarriaK« . 407
See Notice.
Of Registration as Hunter — Sur- render on Conviction of Vjolation ^
of Game Laws '*•
See Game Laws.
Of Inspection of Steam Boiler by In-
surance Company — Issue • »>'«
See l.NSCRANCE. 9.
612
INDEX-DIGEST.
CERTIFICATION — Of Bonds of Street Railway Company as a Legal In- vestment for Sa^■ings Banks — Returns to Board of Railroad Commissioners . . . 338
See Savings Banks. 5.
CHARITABLE CORPORATION —
Special Charter — Increase in Holdings of Real and Personal Property . . . .12
A corporation chartered tinder a special act, for the ptirpose of pro-s-iding for the support of aged, destitute women not otherwise pro^-ided for, may increase its holdings of real and per- sonal property under the general pro^'ision of R. L., c. 125, § 8, authorizing any corporation organized under general or special laws for educational, charitable, benevolent or religious purposes to hold real or personal estate to an amotmt not exceeding §1,500,000, pro\-ided that the charter of such corporation contains no provision inconsistent therewith.
2. Authority to increase Holdings of
Real or Personal Property . 31
Corporations specially chartered for chari- table or benevolent purposes may, without express legislative authority, increase the amovmt of real or personal property held by them, in accordance with the pro\"isions of R. L., c. 125, § 8, that any such corporation may hold real and personal estate to an amount not exceeding §1,500,000.
Qucere, as to the effect of R. L., c. 125, § 12, pro%-iding that any such corporation formed before July 27, 1874, upon compUance with the requirements of such section, may accept the preceding sections of such chapter, and there- upon "shall have the powers and p^i^-ileges and shall be subject to the duties and liabilities of corporations formed under said sections."
The Soldiers' Home in Chelsea —
Purposes of Incorporation . 217
See The Soldiers' Home ix j
Chelsea.
Institution incorporated for Care of
Insane — Exemption from Tax- ation of Land .... 384 See CoxsTiTUTiONAL Law. 15.
CHARLES RIVER — Rules for the Use
of 14
See Metkopolitan Paek Com- Anssiox. 1.
CHARLES RIVER BASIN — Widening and Deepening of Lechmere
Canal 429
See Metropolitax Park Com- mission. 4.
CHILDREN — Emploj-ment — Factorj' or Workshop — Certificate of Ability to read and write . . 177
iSee Labor. 4.
CHINESE RESTAURANTS — Dis- crimination .... 276 See CoNSTiTiTTioxAL Law. 7.
CITIES AND TOWNS — Debts — Re- funding or Renewal . .71 Under the pro^•ision3 of R. L., c. 27, § IS, that cities and towns may renew or refund any debts in securities payable within the period fixed by section 11 of such chapter, a note issued by a town to renew or refund a debt incurred for schoolhouse construction, and payable within the required period of twenty years from the date of the original issue, is a valid obligation of such town.
2. Harvest and Sale of Ice — Taxa- tion 109
A proposed bill, entitled "An Act to au- thorize the city of Holyoke to harvest and sell ice at wholes^e," which in part provides for the raising of money by taxation to directly defray the cost of the carr>"ing on by such city of the business of harv^esting and seUing ice, or for the repajTnent of loans made for such purpose, is unconstitutional, as authorizing the raising of money by taxation for a purpose not public in its natture.
3. Money borrowed in Anticipation
of Taxes — Limit of Authority
to issue Notes in Payment . 327
Under the pro%dsions of R. L., c. 27, § 6, authorizing a citj- or town, by a majority vote, to "incur debts for temporary loans in anticipation of the taxes of the municipal year in which such debts are incurred and expressly made payable therefrom by such vote," a town may not legally issue notes for debts incurred in anticipation of taxes in any one year when such debts exceed in the aggre- gate the total amount which the town has by vote authorized to be so borrowed
A town may not, under the provisions of R. L., c. 27, § 6, authorize an amount to be borrowed in anticipation of taxes which ex- ceeds the amount of the tax assessed or to be assessed for the year within which the debt is contracted.
4. Tuberculosis Hospital — Mainte- nance of Ward or Beds in Private Hospital or General City or Town Hospital — Subsidy from Commonwealth . . . 459
The maintenance by a city or town of a tuberculosis ward or bed or beds in a private tuberculosis hospital or in a general city or town hospital does not fulfil the requirements of St. 1911, c. 597, § 1, which pro\ade3 that "every city or town which establishes and maintains a tuberculosis hospital shall be entitled to receive from the commonwealth a subsidy of five dollars per week for each patient who is unable to pay for his support, or whose kindred bound by law to maintain him are unable to pay for the same."
INDEX-DIGEST.
G13
CITIES AND TOWTHS — Continued.
Licenses for Fish Trap .
See Tide Water.
IS
Automobiles — Special Regulations 26 See Automobiles. 1.
■ Gypsy and Brown-tail Moths — Desti^ction of Xests — Expense
— Assessed Value of Lands — Buildings . . .34 See Gypsy axd Bro-r-x-tail Moths. 1.
- Sealers of Weights and Measures —
Inspection of Mechanical De- ■vices . . . . .51
iSee Weights and Measures.
- Liability for Support of Inmates
in Massachusetts Hospital for Feeble-minded — Notice . . 57
See Massachusetts Hospital FOR Feeble-minded.
- Automobiles — Special Regulations
— Sign Boards — Posting . 78 Se^ Automobiles. 2.
- Contagious Diseases — Powers of
Stat« Board of Health . . 81
See State Board of Health. 1 .
Branch Office of Trust Company See Trust Company. 2.
131
Contagious Diseases — Temporarj' Aid to Unsettled Paupers — Quarantine — Expense . . 137
See Pauper. 4.
■ State Pauper — Aid rendered in Place of Settlement of Wife — Reimbursement by Common- wealth — Notice . . .145 See Pauper. 5.
-Water Works — Opening in State
Highway for Ser-^-ice Pipes . 242
See State Highway. 4.
- Independent Industrial Schools -;-
Initiation — Additional to PubUc School System . - • 261
See Schools. 3.
- Independent Industrial Schools —
Maintenance Fund — Money re- ceived from Fees for Licenses to sell Intoxicating Liquors . • 31o
See Schools. 4.
- Water Supplv — Control and Ref-
lation of Great Ponds — Pubhc
Rights . • Vr • fi
See St.\te Board of Health, b.
CITIES AND TOWNS — '
Officers — Duty in (a ,r
Other Disturbance oi tli.- I'ul.iic
Peace 515
See Riot.
Acceptance of Statute relating to
Hours of Labor . 567
See Labor. 8.
CITIZEN — Voters — Formation of
Credit Union . . . .411
Under the pro\-ision of Si. Vmii ,■ .jm 5 ;<. that "seven or more ci'
wealth who have assoi . ■\
agreement in writing for i :i. .;
a credit union, may . . . '. tion . . .," the persons sii::. ment need not be voters.
Preference of, in Application to Mas- sachusetts State Sanatorium . 90 See Massachusetts .State Sana- torium.
Registration of Hunters — Residence
on Land used exclxisively for Agricultural Purposes . . 206
See Hunters.
Right of Sheriff to require .Assistance
of, in Case of .\ctual or Impend- ing Riot, Tumult or Other Breach of the Pea'" . 4S8
See Sheriff.
CITY BOOKKEEPER — Civil Scr\-ice
Excmi)tii<ii .... 190 ^tf Civil -Service. 4.
CIVIL ENGINEER — Hours of Labor 420
.S((' Labor. 7.
CIVIL SERVICE — Vendor of Intoxi- cating Liquors — Agents . . 105 The words "vendor of intoxi'-atine liquors, as used in R. L., c. 19. § IG. r ' vil service, which provides 1: •" vendor of intoxicating lis " pointed to or retained in :; ment or employment to w: '* of this chapter apply." ar. •'• who either as principal or bl- eating liquor, and would i;. "» drive about among the ■ ■'' employers and deliver into\ » collect money from such ( u "» make sales upon their route.-, lu-. well iu, i>cr- sons who are employed jis bartender*.
2 Exemption — Clerk in the Office
of State Forester — Governor and CouncU — -Approval of tm- plo\'ment • • , . , " \ '
Under St."l904, c. -I"" ^« «),„■•, .nt!...nio« the State Forester to : '".
mav need in the ijerf.i ''
to fix their salaries, - ^nhy-^ t.. 11. •■ :ii....'.>.u
614
INDEX-DIGEST.
CIVIL SERVICE — Continued. of the Governor and Council," such approval is not equivalent to confirmation by the Execu- tive Council within the meaning of R. L., c. 19, § 9, which exempts from the operation of the civil service law and rules "officers . . . whose appointment is subject to confirmation by the Executive Council."
3. Exemption — Officer — Clerk of
Chief of Police . . .158
The clerk of the chief of police of the city of Worcester, who is appointed by such chief of police, sulDJect to confirmation by the city council, and whose duties are such clerical duties as may be prescribed by such chief of police, is not an "officer" within the meaning of R. L., c. 19, § 9, which excepts from the operation of the civil service law and rules "and officers . . . whose appointment is sub- ject to confirmation by the . . . city council of any city," and the appointment of such clerk must be made in accordance with the requirements of such law and rules.
4. — — Exemption — Heads of Principal Departments of a City — City Bookkeeper .... 190 The office of city bookkeeper, established by the charter of the city of North Adams (St. 1895, c. 148), does not constitute the incum- bent the head of any principal department in the governmental organization of such city, and, in the absence of other grounds for exemp- tion, is within the operation of civil service rule VII., class 4, which includes "book- keepers and persons doing similar work in the service of the Commonwealth and of any city thereof."
5. State Boards, Departments or
Commissions — Authority to re- quire Special Qualifications in Applicants for Appointment or Employment .... 270 No State board, department or commission is authorized to require of applicants for ap- pointment or employment qualifications other than those required by the civil service law and rules, and the Civil Service Commission in its discretion may or may not accede to a requisition calling for special qualifications.
6. Statutes — General and Particular
— Repeal — Heads of Depart- ments — Sealers of Weights and Measures — City Charter of City of Boston .... 296
St. 1909, c. 486, which established a new charter for the city of Boston, providing, in section 9, that heads of all departments of such city shall be recognized experts in such work as may devolve upon the incumbents of such offices, or persons specially fitted by education, training or experience to perform the same, and shall be appointed without regard to party affiliation; and, in section 10, that in making such appointments the mayor
CIVIL SERVICE — Continued. shall sign a certificate of appointment and file the same with the city clerk, who shall there- upon forward a certified copy to the Civil Service Commission, who shall make a careful inquiry into the qualifications of the nominee under such rules as thej^ may establish, with the consent of the Governor and Council, and, if they find such qualifications sufficient to meet the requirements of the law, such com- mission shall file a certificate with the city clerk stating that they have made the requisite examination and that they approve the ap- pointment; and, in section 62, that all acts and parts of acts so far as inconsistent with such act are repealed, — does not repeal the provisions of St. 1909, c. 382, authorizing the Civil Service Commissioners to prepare a rule, to be approved by the Governor and Council, for including within the classified service all principal or assistant sealers of weights and measures holding office by appointment under any city or town of over ten thousand in- habitants, "whether such officers are heads of principal departments or not;" and the latter statute is still applicable to sealers of weights and measures in the city of Boston.
7. Assistant Commissioner of the
Penal Institutions Department of the City of Boston . . 324
The assistant commissioner of the penal institutions department of the city of Boston appointed by the penal institutions commis- sioner under the provisions of St. 1897, c. 395, § 5, is within the classification of "superin- tendents, assistant and deputy superintend- ents, deputies, executive officers and persons other than the chief superintendent of de- partments ..." in civil service rule 7, sec- tion 1, clause 1, and is subject to the provisions of the civil service law and rules.
8. Officers whose Appointment is
Subject to Confirmation by City Council — Constables . . 325
Constables whose appointments must be confirmed by the city council of the city of Boston are "officers . . . whose appointment is subject to confirmation by the . . . city council" within the meaning of R. L., c. 19, § 9, providing that such officers, among others, shall not be affected as to their selection or appointment by the civil service rules.
9. City of Boston — Veterinary In- spector, Veterinary Medical In- spector and Veterinarian . . 368 The positions of "veterinary inspector," "veterinary medical inspector" and "vet- erinarian" are within the classification estab- lished by civil service rule 7, class 11, which includes "inspectors other than inspectors of work, and persons doing similar work, except- ing railroad inspectors, in the service of the Commonwealth or of any city thereof," and are therefore subject to the civU service law and rules.
INDEX-DIGEST.
<)15
CIVIL SERVICE — Contimicd.
10. Vendor of Intoxicatiufi Liquors —
Druggist — Sixth-class License .461 A druggist who holds a sixth-class license to sell intoxicating liquors is a "vendor of intoxicating liquors" within the meaning of R. L., c. 19, § 16, providing that "no . . . vendor of intoxicating liquors shall be ap- pointed to or retained in any office, appoint- ment or employment to which the provision of thds chapter shall apply."
11. Inspectors of Slaughtering . . 575
Inspectors of slaughtering nominated and appointed under the provisions of St. 1911, c. 297, § 6, as amended by St. 1911, c. 534. § 2, are included within the terms of civil service rule 7, c. 11.
Waiver of Benefits of Ci\-il Ser\4ce
Rules — Effect . .165
See METROPOLIT.A.N Park Com- mission. 3.
CIVIL SERVICE COMMISSION —
Certification of Pay Rolls of the City of Boston — Police Force . 164 Members of the police force of the city of Boston are not persons "in the ser\ace or employment of the city of Boston," withm the meaning of St. 1908, c. 210, providing in substance that the Civil Service Commission shall certify all pay rolls, bills and accounts for salary or compensation of persons in the service or employment of such city.
Public Records — Letters and Mern-
oranda received in the Investi- gation of Appointees to Office in the City of Boston . . 351
See Public Records. 3.
CLERK OF CHIEF OF POLICE —
Officer 158
See Civil Service. 3.
CLERKS OF COURT — Fees for
Naturalization — County Ac- counts . . • .-,..• ^?" Clerks of courts having jurisdiction to naturalize aliens as citizens of the United States, under the act of Congress of June J\), 1906, are not entitled to retain for their own use one-half of the uaturaUzation fees received by them under such act, and all such lees should be paid over to the treasurer of the county for which such court is constituted.
2. Money paid into Court — In-
terest . . • • • .
A clerk of the courts may not appropriate to his own use interest upon money whicn under a rule of court or under a statute has been paid into court for the benefit of the prevafiing party in a suit brought to cleterraino the right to the possession of such money, and such interest is to be added to the principal sum so deposited.
CLERKS OF COURT
Rcadjri.-tiiKMit wf
iTcused Pupulutii See Salaries.
hi-
:i<X)
COAL SHOVELERS — (ii><'r:iti>ii .,i Steam Boiler — Uaiiconscd Per- son 524
See License. 3.
COMMERCE CLAUSE — Of Con.stitu- tion of the United .States — Regulation of .Siile of Goods. Wares and Merchandise made by Convict Lalxjr in Prison . 495 .See CoNSTiTUTiovAL Law. 20.
COMMISSION ON GRATUITIES —
Claim fur Gratuity — Fee of Attorney — Payment . . 561
See Veteran.
COMMISSIONED
tuity
See Veteran.
OFFICER — Grii-
.->oi
COMMISSIONER OF CORPORA- TIONS — May not apiirovo Ur- ganization of Corporation to buy and sell Re.al Estate . . 195
Sec Corporation. 2.
COMMONWEALTH — Employee— Vet- eran— Retirement . . .119 A veteran of the ciN-il war employed by the Metropolitan Park Commission as a police officer is "in the service of the Common- wealth" within the meaning of St. I'.HJT. c. 458, which provides in part that "a vcti-ran of the civil war in the service of the Common- wealth, if incapacitated for active duty, nhali be retired from active service with the consent of the governor."
2. Veteran — Retirement — Com- pensation • , . •, ■ .J** Under St. 1907. c. 458. § 1. which provide* that "a veteran of the civil war m the s.rvic« of the Commonwealth, if mr:ip:i''it(''..l for active dutv, shall bd retired fr-; rv- ice . . . at one-half the rate o! >on paid to him when in active - * veteran so retired is not enti ive compensation based upon the i*n value of benefits in the t ■ " .'•«- penses, occupancy of a 'r«e from rent, and like privii' ' »« the fixed salary paid to hiiu Iroiu th- ir.iHury of the Commonwealth.
3 Emplovee — Veteran — Retinv
ment — CompensaUoD —
Salary ■ , ' .u '. ■•:
In St. 1907, c. 4.58. ( 1. providing Inft/ . »
veteran of the civil war i.. t!.- - rv.-P r,. thr
commonwealth, if mcui
dutv. shall l)c retired froi.
theconscnt of the govtri. ■. .
616
INDEX-DIGEST.
COMMONWEALTH — Continued. rate of compensation paid to him when in active service, to be paid out of the treasury of the commonwealth," the word "compensa- tion" is to be Hmited to salaries the exact amount of which is determined by law, and may not include living expenses or other like advantages, in addition to such salary.
4. Employee — Veteran — Retire- ment — Consent . . . 494 St. 1907, c. 458, § 1, providing that, with the consent of the Governor, a veteran of the civil war in the service of the Commonwealth, if incapacitated for active duty, may be retired at one-half the rate of compensation paid to him when in active service, was designed not only to provide a pension for the person so retired, but also to relieve the public service of persons unable to perform the duties re- quired of them, and if incapacitated for duty a veteran may be so retired without his consent and upon the request and recommendation of the head of the department in which he is employed.
Employment of Counsel by Public Officer
in Investigation — Expense . 29
See Public Officer. 2.
Employees of — Hours of Labor —
Domestic Servants — Holidays . 93 See Labor. 3.
Reimbursement for Aid rendered
State Pauper — Notice . . 145
See Pauper. 5.
Liability for Act of Insane Person
released on Parole . . .151
iSee Constitutional Law. 1.
Liability for Damage from Liquid
Asphalt on State Highway . 174 See State Highway. 3.
Employees of — Witness Fees and
Allowances for Travel . . 292
See Fees.
Employees at State House — Va- cations ..... 413 See Labor. 6.
Title of Land purchased by Trustees
of a State Institution . . 452
See Lyman and Industrial Schools.
Employees of, Retirement — Teachers
and Employees of Massachusetts Agricultural College . . 460
See Massachusetts Agricul- tural College. 2.
Employees of — Workmen's Com- pensation Act .... 569 See Workmen's Compens.vtion Act.
COMPENSATION — Of Persons em- ployed to investigate Statements or Estimates of Appropriations for State Commissions, Depart- ments or Institutions . .441 See Governor. 6.
Of Legislative Counsel and Agents
— Returns . . . .469
See Legislative Counsel and Agents.
COMPETITION — Purpose to injure or destroy Business of a Rival — Discrimination . . . 526
See Constitutional Law. 23.
CONSTABLE
See Civil Service. 8.
325
CONSTITUTIONAL LAW — Appro- priation — Public Purpose — Liability of Commonwealth for Act of Insane Person released on Parole . . . . 151
The Commonwealth is not liable for any act of or injury caused by an insane person released from a public asylum on parole, by authority of St. 1905, c. 435, § 1; and an appropriation for the purpose of compensating the widow of a member of an unpaid commis- sion in the service of the Commonwealth, who was killed by an insane person so re- leased on parole, is not for a public purpose, and is, therefore, unconstitutional.
2. Taxation — Appropriation of Pub- lic Funds - — Public Purpose — Religious Society, School or In- stitution — Sectarian Control . 153 A society, school or institution which is under direct ecclesiastical or sectarian control, and is designed solely or even principally for the benefit of persons of a particular sect or denomination, cannot be held to be maintained for a public purpose such as would justify an expenditure of money raised by taxation; and an appropriation for the benefit of such so- ciety, school or institution from the public funds raised by taxation would be unconsti- tutional.
3. Public Funds — Appropriation —
Public Purpose — Money not directly raised by Taxation . 160
Since the relief of persons who have suffered loss by fire, or by other great and general ca- lamity, is not a public purpose which will justify the expenditure of public funds, an appropriation of public money for such pur- pose is unconstitutional, and it is immaterial that the money sought to be so appropriated was not directly raised by taxation, but was received from the sale and rental of lands belonging to the Commonwealth.
INDEX-DIGEST.
CONSTITUTIONAL LAW — Continued.
4. Insurance — Acoidcnt and Hralth
Disability — Form of Policy — Insurance Commissioner — Ap- proval — Exercise of Legislative Power by Ministerial Officer . 219 A proposed act, vesting in the Insurance Commissioner authority to approve the form of every policy of accident or health disability insurance issued in this Commonwealth, and constituting such approval a condition prece- dent to the issuance and delivery of such policy, without prescribing any standard form therefor or directing what, in substance, such policy shall contain, would be unconstitu- tional under the Constitution of Massachu- setts, Article XXX. of the Bill of Rights, as a delegation of legislative power to a minis- terial officer.
5. Constitution of the United States
— Amendment — Income Tax . 267 A proposed amendment to the Constitution
of the United States, vesting in Congress "the power to lay and collect taxes on incomes, from whatever source derived, without ap- portionment among the several States, and without regard to any census or enumeration," was intended to empower Congress to lay and collect taxes on incomes without the restriction imposed by the Constitution of the United States in Article I., § 8, that "all duties, imposts and excises shall be uniform through- out the United States," and § 9, that "no capitation, or other direct tax, shall be laid, unless in proportion to the census or enumera- tion hereinbefore directed to be taken."
6. Great Pond — Right of Legisla- ture to determine Height at which Water shall be maintained 273 It is wathin the constitutional p()wer of the Legislature to pass an act establishing a point upon the shores of a great pond below which the waters therein shall not be drawn by persons entitled to the use thereof, if adequate provi- sion is made for compensation if the condition thus established interferes with vested rights of riparian owners, or affects prescriptive or granted rights to lower the waters of such ponds.
7. Constitution of the United States
— Discrimination — Proposed Act forbidding Women under Twenty-one to enter Chinese Restaurants . . • • 276
A bill providing that "it shall be unlawful for any woman under twenty-one years of age to enter a Chinese restaurant or hotel or to be served with food or drink therein, and that "it shall be unlawful for the proprietor of any such hotel or restaurant to admit any woman under twenty-one years of age thereto or to serve her with food or drink therein, . and further providing that "violation.^ of this act shall be punished by fine or imprisonment at the discretion of the court, is in effect a di;,- crimination against the Chinese by reason of
CONSTITUTIONAL LAW — r their natioiuility, and tli.r<-fMt.', would be ill violation of tin- I ■ • ment to the Con.stitution of t and therefore unconstitution.n
8. Taxation — Uniform Rate uix)n
All Personal E.statc within the Commonwealth . . . 201
A proposed act designed to tax pj-r^/itiul
estate at a uniform rate thrf'; ' ■ •'
monwealth, such uniform ra
age of the annual rates for tl^
years, is objectionable upon . 1
grounds, because it subjects p< r
to taxation at a rate different fr..; ...:,■
applicable to real estate, and l>ccau.-»e the nite
so established does not bear any relation to
the amount to be raised by taxation.
9. Taxation — Income Tax . . 299
A general income tax, impo.sod upon the income from real and personal proport\-. as well as upon income from annuiti. ' ' ■■.i
professions, trades and eniplosn u
is in addition to and not in sul' -• . r
existing taxes, would probably be htl<i un- constitutional as a property tax, as not \w'uig. within the requirement of the Constitution of Massachusetts, part II., section I., .Vrticlc IV., that taxes shall be "proportional and n-a-^.n- able," upon the ground that thereby a Knatt-r burden is imposed upon property from which income is derived than upon property of o<iual value from which no income is derived, and would be unconstitutional a.s an excise tax for the reason that the mere right to own and hold property cannot be made the subject of an income tax.
10. Money raised by Taxation —
Public Purpose — Relief of Per- sons out of Employinont l>y Construction of Highway" in Times of Industrial Di-'r; ' ' '
The expenditure of money rais.- : :i
must be limited to a public puri- '•'
not, therefore, within the jn.wer of t ho 1^ *:i>- lature to authorize the Govonior an<l t ouncil to issue and sell bonds and t ' •'..• pro- ceeds in the construction ■■ wIht«> the primarj' purpose of su< II .n waa to furnish relief to persons oui u! . ii.i'l"yi"f"i in times of industrial distress.
11 Amendment to Constitution —
Submis-sion to People ''"
Where a proposed amendment ■ '•
stitution was duly agreed to by ■ the Senate and two-third.^ of tli. the House of Representatives in t years, as provirled in Article I.\. ' raents of the Constitution " ■
wealth, but no further acti respect thereto, it may !><■ ;
neoplc as required by snul zirtidc bi a '^'""J ESd in the usual manner by a sub^uenl Legislature.
618
INDEX-DIGEST.
CONSTITUTIONAL LAW — Continued. 12. Publie Highways — Use — Erec- tion of Structures' over Public Ways — Eminent Domain — Public Purpose . . . 375
A proposed bill which provides that upon petition and after public notice and a public hearing the board of street commissioners of the city of Boston may, with the approval of the mayor, issue a permit to certain individ- uals named therein "to construct and main- tain a bridge across Avon Street in said city for the purpose of connecting buildings owned by them on opposite sides of said street or for the purpose of a fire escape, on such conditions and subject to such restrictions as said board may prescribe," purports to confer upon such individuals an absolute right to be granted by the city of Boston, and in so far as the grant of such right would be inconsistent with the rights of other persons, to require the exercise of the power of eminent domain without provision for compensation.
A proposed bill which authorizes the city of Boston through its mayor, if it shall sell the whole or a part of its real estate on Mason Street in said city, "to grant to the purchaser of said estate, and his successors in title, the right to connect the real estate so sold with property on Tremont Street opposite said real estate by means of a covered passageway or bridge over Mason Street," and provides for the compensation of any person whose property may be injured by the erection of the structure so authorized, appears to contemplate the exercise of the power of eminent domain, not for a public purpose, but for the benefit of certain individuals who may purchase the real estate described therein.
Both bills are therefore objectionable upon constitutional grounds.
13. Appropriation of Money raised by
Taxation — Public Purpose — Museum of Fine Arts . . 380
The Constitution of the Commonwealth, in chapter V., section II., imposes upon the Legis- lature the duty "in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them," and "to encourage private societies and public institutions, rewards and immuni- ties, for the promotion of . . . arts, sciences, . . . and a natural history of the country," and the appropriation of money in the reason- able performance of the duty so imposed would be for a public purpose.
A proposed bill authorizing the city of Boston to appropriate money, not exceeding $50,000 in any single year, for the maintenance and support of the Museum of Fine Arts in said city, subject to certain conditions to be per- formed by the trustees of such museum, as therein prescribed, would therefore be con- stitutional.
Under existing law, however, the city of Boston has no authority to appropriate money for such purpose.
CONSTITUTIONAL LAW — Continued.
14. Public Highways — License —
Use for Commercial or Advertis- ing Purposes .... 383 A city may constitutionally be authorized to require, and to issue through its board of supervisors, licenses for the use of specified parts of public streets therein for the storage and sale of merchandise for purposes necessary for the construction or repair of works or build- ings and for commercial or advertising purposes in cases where the consent of the abutting owner or owners has been obtained. The issuance of such licenses, if confined within reasonable limits, constitutes a definition by public authority of the public use of a highway.
15. Taxation — Exemption — Chari- table Corporation — Land ac- quired by Institution incorpo- rated for Care of Insane . . 384 A proposed bill which provides that "no private corporation or association now existing or hereafter incorporated for the care of the insane shall acquire land ... to be exempt from taxation without the consent of the legal voters of the town or governing board of a city where such land is situated," would not be unconstitutional as creating an unreasonable exception from the provisions of law for ex- emption applicable to property of charitable corporations generally, or because it delegates to cities and towns power to determine whether specific land therein which may be acquired by such institutions shall be included within the exemption applicable to land owned by charitable institutions generally.
16. Public Park — Change of Use —
Back Bay Fens — Proprietary Rights . ' . . . .406
It is within the power of the Legislature to authorize the park commissioners of the city of Boston to permit the erection of a public schoolhouse upon land known as the Back Bay Fens, acquired in fee by the city of Boston under authority of St. 1875, c. 185, which provided in section 3 that such commissioners should "have the power to locate within the limits of the city of Boston one or more public parks, and for that purpose from time to time to take in fee, by purchase or otherwise, any and all such lands as said board may deem desirable therefor, ..." since the proposed use of the land in question is undoubtedly for a public use and no proprietary rights will be affected thereby.
17. Referendum — Matter of Local
Self-government . . . 424
A provision in a proposed bill that "this act shall be submitted to the qualified voters of the Commonwealth at the next State election, in answer to the question, ' Shall a law enacted by the General Court of the year 1911 relative to the development of the Port of Boston and authorizing the expenditure of $9,000,000 for that purpose, be accepted' ..." does not
INDEX-DIGEST.
()19
CONSTITUTIONAL LAW — Continued. fall within the exception permitting a referen- dum in matters of local self-government, and would, therefore, be unconstitutional.
18. Taxation — Appropriation of
Public Funds — Public Purjwse — Relief of Destitute Families of Striking Emploj'ees . . 486
A proposed resolve, "That there be allowed and paid from the treasury of the common- wealth the sum of ten thousand dollars to be expended ... for the relief of destitute families of employees of the factories at Law- rence, who were thrown out of work by the strike in that city," contemplates an appro- priation of money raised by taxation for a purpose other than a public purpose, and if passed would be unconstitutional.
19. Police Power — Regulation of
Private Business — Sale of Theatre Tickets . . .491
The right of the Legislature under the police power to regulate the conduct of a private business in respect to public safety or morals does not extend to the regulation of the sale of tickets of admission to theatres and other places of amusement; and a proposed bill requiring that such tickets shall have the price printed thereon and that it shall be unlawful to sell or offer for sale any such ticket for an amount in excess of the printed sum, if passed, would be unconstitutional and void.
20. Police Power — Regulation of
Sale of Goods, Wares and Mer- chandise made by Convict Labor in Prison — Constitution of the United States — Commerce Clause . . . . .495
A proposed act requiring that all goods, wares and merchandise made by convict labor in any prison, reformatory or jail in this or any other State and brought into this Com- monwealth, shall, before being exposed for sale, be marked "Convict Made," and pro- viding that any person offering such goods for sale or having such goods in possession, without the printed label or mark, shall be guilty of a misdemeanor, cannot be justified as a valid exercise of the police power; and since it would constitute a burden or restriction upon inter- state commerce, and would therefore be in contravention of the commerce clause (U. S. Const., Art. I., § VIIL) of the Federal Con- stitution, would therefore be unconstitutional if enacted.
21. Appropriation of Money raised
by Taxation — Moral Obligation — Repayment of Money paid under Mistake of Fact or Law — New York, New Haven & Hart- ford Railroad Company . . 503 The fulfillment of a moral obligation upon the Commonwealth, created by a claim growing out of general principles of right and justice
CONSTITUTIONAL LAW — r
and busfd uijcm cr)tisi.|,'r:iti.ni- .
merely honorary natu-.. - .
binding on the consci.
dividual, is a public pi;; ;
by taxation may be mp; ,
although such claim could i
any legal procedure.
A proposed resolve to pm . by the Commonwealth of . paid as taxes by the Xcw Y,.i ... . , Hartford Railroad Conipaiiv, if th determined that the facts" subni: nection therewith imposed upon i' wealth a moral obligation of li r
heretofore recognized, would, if constitutional.
22. Money raised by Taxatiua —
Appropriation — Public Pur- pose— Homes for \i..'... - Laborers or Other \ i
A proposed bill authorizii ■,
established by St. 1911, c. >•' ;,
the name of the Massaclr. |
Commission and "for the pu I ; ..^
homes for mechanics, laborers or oiiit-r w«no earners," and appropriating money therefor, would be unconstitutional if passed, since it involves the expenditure of public money for a private purpose.
23. Police Power — Competition —
Purpose to injure or destroy Business of a Rival — Di.scrinii- natiou — Lowering of Prices in one Locality by a Person. Firm, Association or Corporation en- gaged in Business in Several Localities — "Unfair Discrimi- nation" 526
The puri)ose to injure or destroy the bui^incss
of a rival !)>■ compel it inn is not illegni.
A propo.sed ad proviiling that "any [XTson,
firm, association or corporation . . . enKuccd
in the production, manufacture or di.Mtril)ution
of any commodity in general use. th;«» -' ■"
intentionally, for the purpose of det^r
the business of a competitor in r^riv !■
discriminate between differ.
of this Commonwealth, or l)c •
by selling such commodity a^
such purpose in one section . . . iti
charged in another section . . . *h:ii
deemed guilty of unfair disiri- ■ — ■ •
is horeljy proliiliifcd .•md di
in effect renders unlawful a
any locality entered into
specified by a person, firm, :i
poration carrying on busint-^- - -a
one such locality.
The prohibition in >»i!rh prop'^'*'^ """^ »■ •»"*
limited to di.scriiii'
liciou.-'ly or for tl.^
business of comp' '
monopoly or for mo "'•■
therefore discloses no
between the acta of di.si ; . .. , • •- • i
620
IXDEX-DIGEST.
CONSTIT U TIONAL LAW — Continued. and Ouher act; of dis-c-rixniiiation or competitioii not prohibited to justify such prohibition as a Tsiid exercdse of the police power.
Such proposed act, therefore, if passed, would be tmconstitational and void.
24. Amendment to Constitution — '
Taxation — Wild or Forest Lands — Standing Wood and Timber . 531
A proposed constitutional amendment, giv- ing to the General Court fuU power and au- thority 'to prescribe for wild or forest lands such methods of taxation as wiU develop and ; conserve the forest resources of the Common- wealth," if adopt«i would permit the enact- ment by the Legislature of taxation laws with reference to woodlands and wood lots without regard to their size so long as said wood lots or woodlands 'were wild and forest lands: that is, in a state of nature and uncultivated except for the ptirpose of producing wood and timber.
The term "wild or forest lands" does not include a tract of woodland located within fence premises of •which the principal use is for pasturage.
The technical signification of the term "wild or forest lands" has never been established or defined by the courts of this Commonwealth. The term '" standing wood and timber" has not received, either in the statutes of this Com- monwealth or in the decisions of the court, a fixed or technical definition of tmiversal or : even of general application.
The proposed amendment to the Constitu- tion, which would confer utyjn the General Cotirt full power and authority to prescribe for wild or forest lands "such methods of taxa- tion as will develop and conserve the forest ; reso-OTces of the Commonwealth," would au- thorize the enactment of laws to provide that wild or forest lands should be taxed without reference to the element of value contributed by the growth thereon, and that the tax upon the value of such growth might be reduced or altogether omitted in the determination of the tax to be assessed upon said lands.
2-5. Appropriation of Money raised i
by Taxation — Public Piirpose — Reclamation and Sale of Wet Lands — Eminent Domain — Gratuity .... o-SS
A proposed act providing, in substance, for the taking by eminent domain, at the assessed vahiatLon thereof, of tracts of wet lands for liie jmrpose of reclamation, which, after such taking and reclamation, are to be cultivated for two j-ears by the .State Board of Agriculture and then sold at a price not less than the cost of such land plus the cost of reclamation, one- half of any sums received in excess of such total cost to be awarded to the original owner or owners of the land sold, and appropriating therefor the sum of $10,000, might be held to contemplate the accomplishment of a public pfurptose which would warrant the exercise of ; the power of eminent domain and the appro- ■
CONSTITUTIONAL LAW — Continued. priation of money raised by taxation, if. as matter of fact, the development and distribu- tion for occupation of the land affected gave rdief to a considerable and thickly settied agricultural region, and affected beneacialiy the commvmity as a whole, throughout such region, as well as individuals who acquired the land itself.
So much of such proposed act as provides that one-half of any sum received by the Com- monwealth upon disi)osing of reclaimed land, in excess of the cost of the land plus the cost of reclamation, shall be awarded to the original owner or owners thereof authorizes a pa\-ment which is in the nature of a gratuity, and would therefore be unconstitutional.
26. ^Flowage of Land in this Com- monwealth by Erection of Dam in Connecticut — Proceedings at Law — Suits between the States 596 The Attorney-General has no authority to prosecute claims for the benefit of private individuals except in the single instance of the tinascertained individuals who may benefit by a public charitable trust. The lawftil erection of a dam in the State of Coiuiecticut by a Connecticut corporation which results in the flowage of certain lands and highways within the Commonwealth at certain times and seasons does not catise dam^age of such seriotis magnitude as would justify- the Commonwealth in bringing legal proceedings in cotirts of the United States.
Acceptance of Statute upon Approval
by Majority of Voters of Com- monwealth . . . . 5^ See Statcxe. 1.
Taxation to defray Cost of har- vesting and selling Ice . .109 See CrtxES azo) Towxs. 2.
Taxation — Exemption from Local
Taxation of Bonds of Boston Railroad Holding Company . 2S0 See BosTox Railhoad Holdixg
COICPAXY. 2.
Free Transportation of Letter Car- riers in Uniform on Street Rail- ways ..... 388 See Street Plajxwats. 2.
Rates — Street and Elevated Rail- way Corporations — Impairment of Obligation of Contract — Discrimination . . . 396 See BosTox Elev.^ted Railway
Co\IPAXT. 1.
Obligation of Contract — Boston
Elevated Railway Company — Free Transfers .... 400 S^e BoBTOx Elevated R.a.ilw.\t
COilPAXT. 2.
IXDEX-DIGEST.
621
CONSTITUTIONAL LAW — Continued.
Tax on Depcsits in National Banks -109
See Taxatiox. 9.
B1II3 and Resolves — Action of
Governor .... 414
See GovxHXOE. 5.
Public Office — Truant Officer —
Woman ..... 444 ' See Teitaxt Officer.
Regulation of Conduct of Elections
— Qualification of Voters . . 497
See Elxctiox Latts. 2.
Examination by State Ballot Law
Commission of Voting Machines, Ballot Boxes and Counting Ai>- paratus — Delegation of Legisla- tive Authority- .... 507 See Electioxs.
Term of Office of Adjutant General 546
See Adjittaxt Gexeral.
Veto of Executive — Duty to return
BUI with Objections thereto in "Writing to the Branch in which it originated — Rettim — Limit
of Time 552
Stt Goverxoe. 7.
CONTEAC
For :
CONSTITUTION OJ THE UNITED STATES — Amendment — In- come Tax .... 267 See Cox'STiiL hoxal Lavt. 5.
Discrimination — Proposed Act for- bidding Women under Twenty- one to enter Chinese Restaxirants
See CoxsTrrrnoxAL Law. 7.
CONTAGIOUS DISEASES — Powers
of State Board of Health in
Cities and Towns
See State Boakd of Health. 1 .
Temporary Aid to Unsettled Paupers
— Quarantine — Expense 5f€ Pattper. 4.
Inspectors of Health — Right to
enter Schools . • • -
5€€ Boards of Health.
CONTBACT — Counts- Commissioners
— PubUc Works — Notice — Posting and P*ublication - See CorxTT CoinnssioxERS. 1.
State Officers or Boards — Hours of
I^bor — Materials and suppUes ,Stv Labor. 2.
Insurance — Place of making — ^
Jurisdiction . • • • ~
See IxscRAX-CE. S
276
SI
137
196
73
Ste GovEEXOB. 6.
CONVICTION — p:
placed on
Certificate
a Hunter . 614
See Game Laws.
Judgment of Guiiv.' ;'.i'~-"-i n !".!•• —
Revocati'^r. '■:' L-^- :." •. ■ ■•;-•'-'■•■ Auton. - 570
S« L:
CO-OPERATIVE BANK —
>'•■-- ■ Taas.iodrio
- ank . .372
An ur.1 - association formed for
the purp";?; ;i umulating a fund for the purchase of real estate and for buOdinc thereon, for making loans and f r h^-mi-.i'i'.-i'::.:; .» fux>d to be returned to tl ' I>-
ertj* of which is V' ~ ' -le
sliar - ■ "' ■• - ■• "tie
val : at
or ^^ i»«
members — -aLo _re ;.vr;_':^ h.i-. .:.o "Tie or more shares of stock who ha\-e signed the
articles c: --••••■ f'^. r.i >r.. v -. .iccu-
mulated of
interest :- '^
such mc:
are inve^'
of acctm.^
and loaning it'
manner of a i -^^
of th ^^^ • ,jj
sucL ., %
was that of a sa\-iiigs bank.
CORPORATION — .Vereement ■■: -V.^ ^,;.^.,;..,, — Parties — Hu-'hand
A bus- the contr , , ,
association ;<jr vho ;^-'v;r;-_j--' •->. ."rr:. poration under the general laws.
120
of
for-
2. — r
T au: tai:. vel vie^^ po^- as :■■ on.
with lii^ under th . . . exc^
_Buyia<
195
622
IXDEX-DIGEST.
CORPORATION — Continued.
3. Name or Title containing the
Words "Bank" or "Banking" . 250 The provisions of St. 1909, c. 491, § 4, amending St. 190S, c. 590, § 16, that no person, partnership, corporation or association, except co-oi>erative banks, savings banks and trust companies incorporated under the laws of this Commonwealth, and such foreign banking corporations as were doing business therein and were subject to the examination or super- vision of the Bank Commissioner on June 1, 1906. shoiild thereafter "transact business under any name or title which contains the word 'bank' or 'banking,' as descriptive of said business," are apphcable to a corporation organized prior to the passage of such act.
4. Charter — Purpose — Holding
Company — Acquisition of Stock of Domestic Street Railway, Gas and Electric Light Corporations 417 Under the provisions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 2S6, § 7, that " three or more persons may associate themselves bj- a written agreement of association with the intention of forming a corjjoration under gen- eral laws for anj' lawful purpose which is not excluded bj- the pro^-isions of section one except to buy and sell real estate," a corpora- tion may be organized for the purpose " to buy and hold a majority of the shares of the capital stock of any street railwaj", gas and electric light companies organised under the laws of this commonwealth to do business within this commonwealth. ' '
Charitable Corporation — Authority
to increase holding of Real and Personal Estate iinder Special
Charter 12
See Charitable Corpoka-
TIOX. 1.
Charitable or Benevolent — Author- ity to increase Holding of Real or Personal Propenv* . .31 See Charitable Corpora- tion. 2.
Street Railwav — Receiver — Lia-
bilirs" for Tax . . . .143
See Taxation. 3.
Boston & Maine Railroad — Exten- sions and Consolidations with Other Corporations — Liability to Forfeiture of Charter . . 199 See Boston & Maine Railroad.
The Soldiers' Home in Chelsea —
Purposes of Incorporation . 217
See The Soldiers' Home in Chelsea.
Transaction of Insurance Business —
Place of Contract — Jurisdiction 222 See Insitrance. 8.
CORPORATION — Continued.
Business — Pranchise Tax — Deduc- tions — Stocks and Bonds sub- ject to Taxation if owned bj- a Natural Person Resident in this Commonwealth .See Taxation. 6.
249
Domestic — Taxation — ^Minimum
Limit of Tax — Deductions . 335 See Taxation. S.
Charitable — Exemption from Taxa- tion of Land for Institution for Care of the Insane . . . 3S4 See Constitutional JLaw. 15.
COUNSEL — Emplovment of, bv PubUc
Officer 29
See Pttblic Officer. 2.
COUNTY — Officers of — Duty in Case of Riot or Other Disturbance of the Public Peace . . . 515
See Riot.
COUNTY COMMISSIONERS — Con- tracts— " Constmction of Pub- Uc Works " — Notice — Posting and Publication . . .9
The words "construction of pubhc works," as tised in R. L., c. 20, § 27, pro%-iding in part that all contracts made by the cotmty commis- sioners for the construction of pubhc works, if exceeding $800 in amotmt, shall be made in writing and after posting and pubUcation of notice as therein prescribed, do not require that notice of proposals for the emploj'ment of architects to prepare plans shall be posted and published.
2. Of Bristol County — Compensa- tion for Services as Members of Joint Board . . . .91
The Governor and Council may not provide compensation for the county commissioners of the countj' of Bristol for services as members of the joint board created by St. 1903, c. 462, to locate and construct a new drawbridge over Great Taunton Pdver, and consisting of the Board of Railroad Commissioners, the Board of Harbor and Land Commissioners, and the cotmty commissioners of the county of Bristol.
Readjustment of Salaries — In- creased Population . . .360 See Salaries.
COUNTY TREASURERS — Paj-ments — Approval of Bill or Order — Dutj- to ascertain LegaUty of __ Expenditures .... 559 Under the pro%'isioiis of R. L., c. 21, § 8, that "each countj- treasurer shall collect, receive and safely keep all money belonging to the countj", and pay out the same in ac- cordance with law," it is the dutj' of a county treasurer to ascertain whether or not a paj'-
IXDEX-DIGEST.
LC^
COUNTY T TEES — ':
ment •whicr. i' '. ' : :.
order or bi_ _. ,._::,;_ ;•
commi^oneri, may be made by h.
TO la^, and he is therefore reqiiir
himseK that the expense for whicji z:.y-^.^-:^i
is to be made ■was legally incmred in the first
instance.
COITRT — Money paid into — Interest . 290
Sii CiERSS OF CotTBT. 2.
COURTS — District, Police and Munic- ipal — Justices and Clerks — Salaries — Readjustment — County Treasurer ... 3
St. 190i, c. 4->3. -R-Lich established the salaries of the justices, clerks and assistant clerks of certain district, police and municipal courts upon a basis of population, expressly excepted from such classincation the justices and clerks of the district courts of Franklin County, and such exception was not anected by St. i905, c. 339, providing for a readjust- ment of such salaries by the county treasiirers of the several counues, after the taking of the deceimial census of the year 1905.
It follows, therefore, that the rre-?.?'iTer of the county of Franklin is not a! - :■ readjust the salaries of the o± district courts of such county uj . . --s
of population.
CREDIT UNION — Formation of — Subscribers to Agreement of In-
DEDUCTIONS — T
corporation See CmzEX.
411
DAM
E^iuto ... See Taxattox. S.
DKFBCT C~ ■" '"— "~ "PAIR —
5<c siAifc HluHttAt. .y.
DEMAND NOTE.
See Note.
DEPARTMT 7
■ Investigation of Officers by Agent-
Experts employed by GoveriKr 4'-VJ See GovzRxoa. 4.
• Persons employed ' Statements or E- Contract — Comp^rii^u ,4 n See GovEBNOs. 6.
• Erected by Connecticut Corpora- tion in Connecticut — Flowage of Land in Commonwealth — Xtiisance — Remedy . ^ - 596 See CoxSTrnmoXAi. Law. 26.
DAMAGE — From Liquid Asphalt on
State Highway — Liability . 174 See State Highttat. 3.
DATE — Of Payment of Town Note
Payable "'during the year 1912" 523 See Towxs, 4.
DAY — Action of Governor on Bills and Resolves — Sundays ani Holi- days . . • 414
Sf€ GOVEKXOB. O.
DAY'S WORK <5I
;?t:t Labor. 1.
State Officers and Boards — Con- tracts — Hours of Labor — Ma- _ terials and Supplies . - . <3 5e€ Labok. 2.
DEBTS — Refunding or Renewal of. by _ Citv or Town . - • • ' ^
.Sff Cities ant) Towxs. 1.
DEPOSITS — I
- — Tit
409
DIRECTOR — Of Insurance Company
— Investment of Funds
5€^ IXSCBAXCE. 7.
DIRECTOR or BUREAU OF STA- TISTICS — N v. — ( ■■.-..:; -a-
P.
the S.ii:-e
See Towns. 6-
DISCRIMINATION . ^
^:-.. CoNSTITt-nOXAL LaW. 4.
Lowering of Prices in
bvaP.r- :..Fir::;
C
ii.
See CoxHniLiioxAL L.*.v.
183
DISTRICT OF COL
ri'ion orpa:.
S-t F'HU^N ■ -
DISTRICT. POLICE AND MUNIC- IPAL COURTS.
5t« COVKT*.
DISTRICT POLICE -
RuiiJinc? — ."^aii;"
tilauon
See BciLDixc*. 1
DOMESTIC SERVANTS — Uour* o.'
I.,,:- r — H 'a i.i>> • • . JM
624
INDEX-DIGEST.
DRUGGIST — Vendor of Intoxicating
Liquors ..... 461 See Civil Service. 10.
DUMPING INSPECTORS — Hours of
Labor 420
See Labor. 7.
EDUCATIONAL PURPOSES — Wood- land used in teaching Forestry — Exemption from Taxation . 247
See Taxation. 5.
ELECTION LAWS — Election — Death of Candidate on Morning of Elec- tion Day — Failure to elect — Special Election — Governor . 457 Where a candidate for the office of clerk of the courts died on the morning of the day of the election, but as the fact of his death was not generally known and his name was upon the official ballot the highest number of votes was cast for him, there was a failure to elect, and the Governor should cause a precept to be issued for the election of such officer in accordance with the provisions of St. 1907, c. 560, § 306.
2. Qualification of Voters — Consti- tutional Law — Legislature — Police Power — Regulation of Conduct of Elections . . 497
The qualifications which shall entitle any person to vote or to be voted for and the right to elect and to be elected to public office are defined in Article IX. of the Declaration of Rights and Articles III., XX. and XXI. of the Articles of Amendment to the Constitution of the Commonwealth.
The conduct of elections may be regulated by the Legislature under the police power for the purpose of providing an easy and reason- able mode of exercising the constitutional right preventing error and fraud and securing order and regularity; but all such regulation must be subordinate to the provisions of the Con- stitution and cannot add to or diminish the qualifications of a voter as therein prescribed.
Whether or not the provisions of a proposed act which restrict the expenditure of money or the contribution of any other valuable thing in connection with an election by any person, whether or not such person is a candidate for public office, to traveling expenses incurred by himself and to expenses for preparing, circu- lating and filing nomination papers; which for- bid, except in cases of age or physical disability, the conveyance of any voter to the polls other- wise than at his own expense, and require that if any person elected to office, or any member or agent, or his campaign committee, or any other persen acting in his or their interest or behalf, is convicted of any viola- tion of the law relating to corrupt practices at the primary at which such candidate was named, or at the election at which he was
ELECTION LAWS — Continued. elected, such office shall be vacated and a new election shall be held to fill it, are reasonable and necessary precautions against bribery, fraud and other improper conduct in con- nection with elections and, therefore, a pro- tection to the constitutional right to elect and to be elected to office, is primarily a question of fact and, therefore, a proper subject for the determination of the Legislature.
It would seem, however, that the enforce- ment of such stringent regulations as those above described could hardly be held to be a reasonable regulation of the exercise of the right to take part in elections.
A provision in the proposed act requiring that persons who, by reason of age or physical infirmity, are unable to reach the polls without assistance and are, therefore, transported to and from the polls shall, before voting, make a statement under oath of such disability, is clearly unconstitutional as imposing a quali- fication upon such persons additional to those prescribed by the Constitution.
ELECTIONS — Voting Machines, Ballot Boxes and Counting Apparatus — Examination by State Ballot Law Commission — Constitu- tional Law — Delegation of Leg- islative Authority . . . 507 A provision in a proposed act relating to the use of voting machines, that "the State Ballot Law Commission shall also constitute the State Board of Voting Machine Exam- iners, and shall at such times, under such conditions and after such public notice as they shall determine, examine voting machines, iDallot boxes and counting apparatus, and they shall make and file^ with the Secretary of the Commonwealth their report on such machines, ballot boxes and counting apparatus as in their judgment conform to the requirements of law, together with such written or printed descrip- tions and such drawings, specifications and photographs as shall clearly identifj'^ such ma- chines," does not vest in or impose upon the State Ballot Law Commission any powers and duties which involve a delegation of legislative authority which would be objectionable upon constitutional grounds.
The provision above quoted does not directly require the State Ballot Law Commission to approve only such machines as fulfill the re- quirements of the primary law, but indirectly requires such approval, since they are required to make and file their report only on such machines, ballot boxes and counting apparatus as in their judgment conform to such require- ments.
ELECTRIC LIGHT COMPANY —
Holding Company incorporated to acquire Stock of Domestic Street Railway, Gas and Electric Light Corporation . . .417
See Corporation. 4.
INDEX-DIGEST.
C25
ELECTRIC LIGHT COMPANY —
Continued. Domestic — Taxation — Bonds se- cured by Mortgage on Real Es- tate and Personal Property — Exemption .... 431 See Taxation. 10.
ELEVATED RAILWAY COMPANIES
— Special Rates to Pupils of State Normal Schools . . 75
^ee Schools. 2. *
Rates — Constitutional Law . . 396
See Boston Elevated Railway Company. 1.
EMINENT DOMAIN — Reclamation and Sale of Wet Lands — Gra- tuity 538
See Constitutional Law. 25.
EMPLOYEES — Of Commonwealth — Retirement — Teachers and Ern- ployees of Massachusetts Agri- cultural College . . . 400 See Massachusetts Agricul- tural College. 2.
Of Commonwealth — Veteran — Re- tirement — Consent . . 494 See Commonwealth. 4.
Of Commonwealth — Workmen's
Compensation Act . . • 569
See Workmen's Compensation Act.
Of Commonwealth — Hours of
Labor — Holidays . . .93
See Labor. 3.
ESTABLISHMENT — Inspection of
Buildings — Accommodations for Ten or More Employees above Second Story . . .231
See Buildings. 2.
Mercantile— Employment of Women 209
See Labor. 5.
EXCISE TAX — Exemption • 280
See Boston Railroad Holding Company. 2.
On Express Business on any Railroad,
Railwav, Steamboat or Vessel in the Commonwealth — Computa-
tion '^'^^
See Taxation. 4.
EXECUTIVE COUNCIL — Petition for
Pardon — Reference • ■ ^
See Governor. 1.
EXECUTOR — Transfer to, of Bond« of
Comnionwoiilth . 104
.Sec Treasiueu and Receivku-
Gkneual.
EXEMPTION — From Taxmi..., --
Farming Utensils i'.
See Taxation. 2.
From Taxation — Woodland for Educational Purpost-s . See Taxation. 5.
u.-*o«l
Civil Service — Officer See Crv'iL Service.
3.
217
loS
EXPENDITURES — Of Dcimr* mcuts and Institutictns — .\uthority of Governor and Council to in- vestigate .... 226 See Governor AND Council. 1.
Proposed — Statement or Estimate
— Investigation of Officers, De- partments or Institutions . . 403 See Governor. 4.
EXPLOSION — Fire Insurance 70
S/r Insur.\nce. 4.
EXPLOSIVES — Storage — "•Building"
— Iron Tank for keeping Gaso- lene . • • . 5'-
The word "building" as used in St. 1904, c. 370, § 3, as amended by St. 1905. c. 2S0, pro- viding that no building shall 1m; erect<'<l or used in any city or town for thf^ ko<'iMnK. storage, manufacture or sale of gxii. ' '
certain other exiilosivcs without a ■
the mayor and aldermen of a cit\- ■ men of a town, a permit from tin ' District Police, or some i>er.soii <!■
him, applies to and includes ai. .-••. •
closed except by pipe ronncclions. !in( pla.-.-<i upon an uncovered brick f(mii<lati'>i;. ...-i2ti.mI and intended as a •'container" i and would apply to and inrhidc - ture, even if under ground, from liquid is taken by means of a pump.
EXPRESS BUSINESS-" '-
road. l{ail\\ay. .-■ '^
Ves.si-1 ill ihi' CoMia.
Computation of Excise lux Sec T.\XATioN. 4.
EXTRADITION — Governor — Duty of
Executive— Disf-rit I.. I. i*-
Where the papers accompi of the Executive of anofh'T ~ and extradition of an al justice of that State ai proper form, and n<> <|" identity of the person d.m.i: offered to contradict the sw. affidavits accompanying su.: or about the date of the a person was in the deniaiidin.
626
INDEX-DIGEST.
EXTRADITION — Continued. after left it and has been found within the Commonwealth, it is the duty of the Governor to honor such demand, and he has no legal discretion to refuse to honor it, even if upon full hearing he should be of opinion that under all the circumstances the interests of justice would be served by such refusal.
FACTORY — Employment of Children
— Certificate . . ' . . 177
See Labor. 4.
FARMING UTENSILS"
tion from Taxation . See Taxation. 2.
Exemp-
66
FEEBLE-MINDED PERSON — Keeper of Hospital for Insane and Feeble-minded — Suitable Per- son — Resident or Consulting Physician .... 359
See License. 2.
Keeper of Hospital for Insane and
Feeble-minded Persons — Suit- able Person — Partnership . 563 See License. 4.
FEES — State Board of Health — Food and Drug Inspectors — Em- ployees of Commonwealth — Witness Fees and Allowances for Travel . . _ . .292
Food and drug inspectors appointed by the State Board of Health are employees of the Commonwealth within the meaning of R. L., c. 204, § 47, as amended by St. 1910, c. 311, providing in part that "any employee receiv- ing regular compensation from the common- wealth shall not be entitled to a witness fee before any court or trial justice ... in a cause in which the commonwealth is a party," and are not entitled to witness fees for at- tendance at court or allowances for travel in any cause in which the Commonwealth is a party.
For Naturalization
iSee Clerks of Court.
106
1.
For Licenses for Sale of Intoxicating Liquors — Independent Indus- trial Schools . . . .315 See Schools. 4.
Tuition — Independent Industrial
Schools — Nonresident Pupils . 315 See Schools. 4.
Registration of Motor Vehicles owned
by the United States . .318
See Massachusetts Highway Commission.
For Prosecution of Claim for Gratu- ity to Veteran — Payment . 561 See Veteran.
FIRE — Relief of Persons who have suf- fered Loss by — Public Purpose 160 (See Constitutional Law. 3.
FIRE INSURANCE.
<See Insurance.
FIREMEN — Injuries suffered in the Performance of Duty — Drill or Exercise of Horses . . . 279
See Firemen's Relief Fund.
FIREMEN'S RELIEF FUND — Inju- ries suffered in the Performance of Duty — Drill or Exercise of Horses 279
R. L., c. 32, § 73, as amended by St. 1903, c. 253, creating a firemen's relief fund, to be used "for the relief of firemen . . . who may be injured in the performance of their duty at a fire or in going to or returning from the same," does not authorize the use of such fund for the relief of firemen who may be injured while taking part in drill, or while exercising the horses of the department by order of the superior officers.
FISH TRAP — License - Towns See Tide Water.
Cities and
18
FISHERIES AND GAME — Pursuit of Wild Fowl — Launch or Power Boat . . . . .189
The shooting of wild fowl from a launch or power boat, which has been used to reach a place frequented by such wild fowl, and is there anchored, constitutes . a violation of the provisions of R. L., c. 92, § 11, as amended by St. 1906, c. 241, which forbids the pursuit of wild fowl "with or by aid of a boat propelled by steam or naphtha, or of a boat or vessel propelled by any mechanical means other than saUs, oars or paddles."
FISHING — Regulation of Public Use of Sources of Water Supply — Arti- ficial Reservoirs . . . 364 See State Board of Health. 5.
FOOD AND DRUG INSPECTORS —
Witness Fees and Allowances for Travel . . . .292
See Fees.
FOOD PREPARATION — Containing Alcohol — • Receptacle — State- ment of Contents . . . 216 .See Alcohol.
FOREIGN CORPORATION -- Rail- road Company — Acquisition and Control of Stock and Bonds of Domestic Street Railway Com- panies — Control of Domestic Street Railway Companies — Leasing — Forfeiture of Charter 53 House Bill No. 1358, providing in section 1
that "it shall be unlawful for a railroad cor-
INDEX-DIGEST.
027
FOP-EIGN CORPORATION — Continued. poration operating a railroad in this Common- wealth to acquire, own or hold, directly or indirectly, the stock or bonds of any street railway company having a location in any city or town in this Commonwealth, or to lease the franchise and property of any such street railway," and in section 2, that "upon petition of the attorney-general of the Com- monwealth to the supreme court in equity ... a receiver shall be appointed who shall take possession and control of the prop- erty of any street railway" included in sec- tion 1, with further provision in section 4 for forfeiture of the charter of such company, after due notice and hearing, is ineffective to prevent the purchase of the stock of a domestic street railway by a railroad corporation char- tered in another State and duly authorized thereto by the laws of that State.
Such bill prohibits the leasing of the fran- chise of a domestic street railway company by a railroad corporation operating a steam rail- road within the Commonwealth.
By reason of the provision for the dissolution of the charter of a domestic street railway company if its stock or bonds are owned or controlled, directly or indirectly, by a railroad corporation operating a steam railroad within the Commonwealth, such bill would prevent such acquisition and control.
2. Laws of District of Columbia . 163
St. 1907, c. 437, § 56, which defines a foreign corporation to be any corporation organized "under laws other than those of the com- monwealth for purposes for which domestic corporations may be organized under the provisions of section seven" of such chapter, extends to and includes a corporation chartered under the general laws of the District of Co- lumbia.
3. Usual Place of Business within the
Commonwealth . • •. 187
A foreign corporation engaged in the busmess of operating mines beyond the limits of the Commonwealth, which maintains an office within the Commonwealth as a place for meetings of its board of directors, has a usual place of business therein, within the meaning of St. 1903, c. 437, § 58, and must comply with the requirements of sections 58-60 of such chapter.
4. Usual Place of Business — Com-
missioner of Corporations .^_^oo
The words "usual place of business, in R. L., c. 126, § 4, which provides that every foreign corporation which has a usual place of business within the Commonwealth, or is engaged therein, permanently or temporarily, in the construction, erection, alteration or repair of a building, bridge, railroad, railway or structure of any kind, shall, before doing business in this Commonwealth, in writing appoint the Commissioner of Corporations and
FOREIGN CORPORATION
his successor in oflice to he its t: attorney, inchide a foreinn corp has executive offices within tlio ( where a considerable purt of th. of the business of the compauj
III h ih
!lt
Insurance Company — Tax upon
Premiums — Reciprocal LcKii*- lation . . . . .19
.Sec In8CR.\nce. 1.
Insurance — Change from Assess- ment to Old Line Business Valuation of Policies . . S2 See Insurance. 5.
FOREIGN LANGUAGE — Duty of
Register of Deeds to record In- strument in . . . .241 See Register of Deeds.
FRANKLIN COUNTY — District Courts — Adjustment of Salaries — County Treasurer . 3
jSee Courts.
FREE TRANSFERS — On Boston Ele- vated Railway Company — Con- stitutional Law — Obligation of Contract . . . • 100
See Boston Elevated Railway
C0XIP.\NY. 2.
FUNDS — Of Insurance Company Investment See Insurance. 6.
147
GAME LAWS — Violation — Con vie tion — Plea of Nolo — Com' placed on File — Certificato of Registration • . • • ^U
A plea of nolo where the case is placed on tUo and such pica is not followed by a scntoncc or other form of final judpmont. is not a "con- viction" within the nu-anuiK of M. lUll. c 614 § 11, which provides that •every por.ion convicted of violating the game hiws MiaU immediately surrender to the officer who secures such conviction his certificate ot registration. ..."
GAS COMPANY — HoldinK Company inc.rporated to acquire block of Doni.stic Street Railway. Caa and Electric Light Cor|)oration 417 See Corporation. 4.
GASOLENE '-
See E.XPL08IVE8.
GENERAL COURT - Order l.xinK Limit of Time for Perform- ance of Duty of Attorney- General to advise . • • *•"
See Attorney-General. 4.
628
INDEX-DIGEST.
GOODS, WARES AND MERCHAN- DISE — Made by Convict Labor in Prison — Regulation — Con- stitution of the United States — Commerce Clause . . . 495
See Constitutional Law. 20.
GOVERNOR — Petition for Pardon —
Executive Council . . .5
The Governor may, in his discretion, refuse
to refer to the Executive Council a petition for
pardon or a petition for commutation of the
death penalty.
2. Registered Bonds of the Common- wealth — Signature — Rubber Stamp . . . . .65
The Governor may affix his signature to registered bonds issued by the Commonwealth by means of a rubber stamp, provided such stamp is retained in his possession and applied by him, or, in his presence, by some one authorized by him to make such application.
3. Master in Chancery — Removal
from County — Vacancy — Ap- pointment .... 186 It is the duty of the Governor, under the provisions of R. L., c. 165, § 52, to appoint masters in chancery as vacancies occur, "so that the number thereof in the several counties shall be eleven in Suffolk, nine in Essex, seven in Middlesex, seven in Worcester and not more than five in any other county;" and where a master in chancery appointed for the county of Middlesex removes therefrom with the in- tention of permanently residing elsewhere, a vacancy is created in the list of such officers for such county, which the Governor is author- ized to fill by appointment.
4. Statement or Estimate of Proposed
Expenditures — Investigation of Officers, Departments or Institu- tions of the Commonwealth — Employment of Agents or Ex- perts 403
The authority of the Governor under St. 1910, c. 220, § 1, in substance requiring that certain statements and estimates should be submitted to the Governor and Council, and that the Governor should transmit the same to the General Court with such recommenda- tions, if any, as he might deem proper, was not extended by the provisions of St. 1911, c. 82, authorizing him "to employ such persons as he may deem proper to make such investigation of any of the commissions, departments or institutions of the commonwealth as he be- lieves is necessary to enable him to carry out the provisions of chapter two hundred and twenty of the acts of the year nineteen hundred and ten," and his power to investigate, by means of agents, investigators or experts em- ployed under the provisions of the chapter last cited, any officer, department or institution, must be predicated upon the existence of a statement of proposed expenditures and of
GOVERNOR — Continued.
other matters required by St. 1910, c. 220,
which is to be transmitted to the Legislature.
It follows, therefore, that after the Governor has transmitted to the Legislature the state- ments or estimates of expenditure in relation to any particular officer, department or insti- tution, there is no longer authority or occasion for any such investigation.
5. Constitutional Law — Bills and
Resolves — Action — Five Days
— Sundays — Holidays . . 414
Under the provision of the Constitution of the Commonwealth, Part II., c. I., § I., Art. II., that "if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law," the governor is to be allowed five full days, beginning at 12 o'clock midnight next following the time when the bill is presented, in which to exercise his right either to signify his approval by signing such bill or to return it with his objec- tions in writing to the Senate or House of Representatives.
In computing such period of five days, Sunday is to be excluded and holidays included.
6. Appropriations for State Commis- sions, Departments or Institu- tions — Employment of Persons to investigate Statements and Estimates — Contract — Com- pensation .... 441 Under the provisions of St. 1911, c. 82, that "the governor is hereby authorized to employ such persons as he niay deem proper to make such investigation of any of the commissions, departments or institutions of the common- wealth as he believes is necessary to enable him to carry out the provisions of chapter two hundred and twenty of the acts of the year nineteen hundred and ten," and that for such purpose he may "expend such sums out of the amount authorized by chapter five hundred and forty-nine of the acts of the year nineteen hundred and eight as may be approved by the governor and council," the Governor, acting independently of the Council, has no power to determine, by contract or otherwise, the rate of compensation to be paid to the persons employed by him to make the re- quired investigations.
Since the purpose of St. 1910, c. 220, pro- viding in substance that statements or esti- mates for appropriations for State commissions, departments or institutions shall annually be submitted to the Governor and Council, and transmitted by the Governor to the Legisla- ture, with such recommendations as he may deem necessary, the Governor and Council may not legally allow persons employed under authority of St. 1911, c. 82, above cited, compensation for investigations or for reports thereon made since the prorogation of the General Court for the year in which they were employed, nor compensation for time spent in
INDEX-DIGEST.
020
GOVERNOR — Continued. appearing before the joint committee on ways and means of the General Court to explain their reports or to be questioned in regard to them, or for time spent in exphvining their charges for services to the Council or to any committee thereof.
7. Veto — Constitutional Law —
Duty to return Bill with Objec- tions thereto in Writing to the Branch in which it originated — Return — Limit of Time . . 552
Where certain bills, due under the provisions of Article II of Section I of Chapter I of the Constitution of the Commonwealth to be re- turned on May 27 by the Governor, with his objections thereto in writing, to the House of Representatives, in which branch such bills originated, were found, on the morning of May 28, on the desk of the clerk of the House of Representatives, and the speaker of the House of Representatives, on a point of order, ruled that the vetoes were not properly re- turned until received by the clerk at 8 o'clock upon the morning of May 28, and such bills were transmitted by the clerk to the Secretary of the Commonwealth, with a statement of the above facts, it is not the duty of the Secretary to determine whether or not such bills were seasonably returned, and he should receive and record them among the laws of the current year, leaving the question of their validity to be determined by the proper tribunal.
It would seem, however, that the duty de- volving upon the Governor under the provi- sions of Article II of Section I of Chapter I of the Constitution, if he has objection, to return a bill or resolve within the prescribed period of time to the branch of the Legislature in which it originated, should be performed with sufficient formality to insure that the return shall be made to some proper officer of the Senate or House of Representatives, as the case may be, if the branch to which the bill or resolve and the objections are sent is not in session.
Effect of Acceptance of Resignation
of Public Officer ... 1 ^ee Public Officer. 1.
Executive Duty as to Extradition
— Discretion . ■ ■ • '*'^-'
See Extradition.
Election — Death of Candidate on Morning of Election Day — Special Election See Election Laws. 1 .
457
GOVERNOR AND COUNCIL — Au- thority to investigate Expendi- tures of Departments and Insti- tutions—Committee on \^ays and Means . ■ • • -.-"
The Governor and Council may make in- vestigations for the purpose of ascertaining
GOVERNOR AND COUNCIL /.
whether or imt inoiiry ruij.rni, ■ .,.
Legislature lor tiit.- .-levcrai dtp ,.1
institutions which, or the e.\; .f
which, are by law subject to thr ,i,^
is being expended in a pr r, liut
they may not constituti nt tho
expenditure of money .so ai , , . . ; for the purposes for which it was approprmti'd.
The committee on ways and nu'iins of tho Legislature may at any time iL-^k the lulvico of the Governor and Council in rci^ard to a pro- posed appropriation, i>ut is iicit rcmiinii ~u to do.
2. .\nnual Appropriations - ■ Maic-
ments of Amounts re<iuired for the Ensuing Fiscal Year — Veri- fication of Estimates — Exami- nation and Audit of Books of Account ..... 340 St. 1910, c. 220, § 1, requiring that every officer or board having charge of any depart- ment, institution or undertaking which rcci-ivwi an annual appropriation fn^in the ircaMiry of the Commonwealth, .shall annually .sul)init to the Auditor statements in detail showing tho amounts appropriated for the current fiscal year and required for the ensuing fiscal year, and that the Auditor shall comliinc >urh statements with a like statenu-iit rclaling to his own department in one document, to Ik? printed and submitted on or Ix-forc the firnt Thursday in January to the Governor and Council for examination, and by the Governor transmitted to the General Court with such recommendations as he may deem pro|KT. does not confer upon the Governor and Coun- cil, or upon the Governor alone, any m-w or additional authority to examine, for tlie pur- pose of verifying or otherwi.se invest iRutinK such statements, the cxjienditures or »KK)k.H of accounts of, or to prescribe for suc-ii |nir|>o»H' the method of accounting which shall In- ui*o<l by any State officer or lx>urd.
.\ppointnient and Compen.sation of
Officers of Westltorough Stuto Hospital — .Vpprovul . •<!•*
.See Westbokocou St.\te Hos- pital.
GRATUITY — Reclamation and Sale of Wet Lands — Eminent Domain — Award of Profit.s of Half by Commonwealth to Oriinnal
Owner or Owners . •
See CoNSTiTUTioNAi. Law. 25.
53H
To Veterans of Civil War — Com-
missioned Officer . . • -^^l
,s', , Vetehan.
GREAT POND — RiRht to determine Height at which Water «hall be maintained ■ „
.See CON9TITUTIONAL Law. •».
630
INDEX-DIGEST.
GREAT ¥OND — Continued.
Water Supply — Regulation of Pub- lic Rights — Wright's Pond and Ashley's Pond in City of Holyoke 302 See State Board of Health. 4.
Control and Regulation — Public
Rights — Water Supply . 448
See State Board of Health. 6.
GUARDIAN — Of Insane Inmate of Public Institution — Appoint- ment ..... 132 -See Insane Person. 1.
Of Insane Person — Petition to sell
Real Estate — Notice . . 252
See Insane Person. 2.
GYPSY AND BROWN-TAIL MOTHS
— Owner of Real Estate — De- struction of Eggs and Nests — Expense — Assessed Value of Lands — Buildings . .34
The word "lands" as used in St. 1905, c. 381, § 6, providing that where the owner or owners of real estate fail to destroy the eggs, pupse or nests of the gypsy or brown-tail moths, the city or town within which such real estate is situated "shall, subject to the approval of said superintendent, destroy the same, and the amount actually expended thereon, not ex- ceeding one half of one per cent of the assessed valuation of said lands, . . . shall be assessed upon said lands," includes any buildings which may have been erected thereon.
2. State Forester — Work of De- struction of Moths — Co-opera- tion with Private Individuals — Supplies . . • . . . 536
Under the provisions of St. 1905, c. 381, § 3, as amended by St. 1906, c. 268, § 1, and St. 1908, c. 591, § 1, providing that the superin- tendent for the suppression of the gypsy and brown-taU moth, among other things, "may act in co-operation with any person, persons, corporation or corporations, including other states, the United States or foreign govern- ments," and "may de^^se, use and require all other lawful means of suppressing or prevent- ing said moths," the State Forester, who succeeds to the powers of the superintendent for the suppression of the gypsy and brown- tail moth under the pro\dsions of St. 1909, c. 263, when actually engaged in the work of destrojang such moths in a given locality, may co-operate with adjacent landowners, who are carrying on work upon their own premises in conjunction \^^th the public work, by furnish- ing them at cost supplies to be actually used in such work, or may authorize the local superintendent to furnish such supplies as his agent.
HEADS OF PRINCIPAL DEPART- MENTS. See Civil Service.
HEALTH, STATE BOARD OF.
See State Board of Health.
HIGHWAYS — Construction of, in Times of Industrial Distress, to relieve Unemploj-ed — Money raised by Taxation — Public Pur- pose ..... 305 See Constitutional Law. 10
Use — Erection of Structures Over
— Public Purpose . . . 375 See Constitutional Law. 12.
Use for Commercial or Advertising
Purposes ..... 383 See CoNSTXTUTiON.\L Law. 14.
HISTORY — Of Militar^^ Organization of Massachusetts Volunteers — Ap- proval . . . . .149 See Secretary of the Com- monwealth.
HOLDING COMPANY — Incorporated to acquire Stock of Domestic Street Railway, Gas and Electric Light Corporation . . . 417
See Corporation. 4.
HOLIDAY — Action of Governor on Bills and Resolves within Five Days
— Constitutional Law . . 414 See Governor. 5.
HOLYOKE, CITY OF — Wright's Pond and Ashlev's Pond — Regulation of Public Rights . . .302
See State B'oard of Health. 4.
HOMES — For Mechanics, Laborers or Other Wage Earners — Appro- priation of Public Funds . .521 See Constitutional L.\w. 22.
HOSPITALS — Tuberculosis — Main- tenance of Ward or Beds in Pri- vate Hospital or General City or Town Hospital — Subsidj^ from Commonwealth . . 459
See Cities and Towns. 4.
For Care of Insane and Feeble- minded — Keeper — Resident or Consulting Physician — Suit- able Person .... 359 See License. 2.
For Care of Insane and Feeble- minded Persons — Keeper — Partnership — Suitable Person . 503 See License. 4.
Public or Incorporated — Records — Inspection . See Public Records. 4.
581
INDEX-DIGEST.
G31
HOTEL — Intoxicating Liquors — Cer- tificate of Inspector of Factories and Public Buildings . . 319
jSee License. 1.
HOURS OF LABOR.
See Labor.
HUNTERS — Registration of — Citizen
— Residence on Land used ex- clusively for Agricultural Pur- poses 206
Under the provisions of St. 1908, c. 484, § 3, which exempts, from the requirement pre- scribed by the statute of a certificate of registra- tion, citizens who are bona fide residents on land owned or leased by them, and on which thej^ are actually domiciled, such land being used exclusively for agricultural purposes, a person who is resident in a city or town and not upon a farm, but who is the owner of a wood lot used for growing wood, is not exempt from registration. A farmer, however, who is actually resident upon land used exclusively for agricultural purposes, may hunt without registration in a wood lot which is a part of his farm.
Registration — Certificate — Sur- render on Con\'iction of Viola- tion of Game Laws — Plea of Nolo — Case placed on File . 514 See Game Laws.
HUSBAND AND WIFE — Corporation
— Agreement of Association . 120 See Corporation. 1.
ICE — Harvest and Sale of, by Cities and
Towns 109
iSee Cities and Towns. 2.
INCOME TAX — Constitution of the
United States — Amendment . 267 iSee Constitutional Law. 5.
Under Constitution of Common- wealth . . . • • 299 See Constitutional Law. 9.
INDEPENDENT INDUSTRIAL
SCHOOLS — In Addition to Public School System — Initia- tion — State Board of Educa-
tion 261
See Schools. 3.
Nonresident Pupils — Tuition Fees
— Maintenance Fund — Dispo- _ sition of Revenue ■ • 31o See Schools. 4.
INNHOLDER — "Open" or "PubUe"
Bar . . . ■ • 6
See Intoxicating Liquors, i.
132
IjuI ttU-
INSANE PERSON — Prnr
scs.<ion of Officer
fur Insane — Di^i
monwealth — Guurdi:iu — I'uLUc
Administrator .
The receipt of money In l..r,!'M,i. charges supported in ins' sane or in private fnmili<- sion of the St::' Board or by t! for safe kecpin
are not competoiiL lo care for it, thorized by any provision of law.
Money so received may • • * ' — "•• ' - de- posited in a bank or trust ,er funds, to the account of .^ . or institution for the insane.
Such money may not be applied by the Commonwealth to the payment >.i' tl-.i i \t.orw of supporting any such public ng
his lifetime, without the api" a
guardian; it may, however, ! in
payment for such support, up«;i hy
the insane person entitled theri' .ter
his discharge from custody a.s uurL*-.;'. tred, although even in this case it is advisable that a guardian should h'> ■■'■'■'' '■■■'■
Money left in the ; -rs
of the several State i: ne
by patients who wen' ^u; : ' m.
1, 1904, as town charges. 'fc
that date, should be p.ail - of
the poor of the places to wliicli ouch p.iiients were chargeable, if claimed by them on account of charges for the support of -■ ' ■ • nts; or, if no such claim is made, - dd
to the public administrator r,f in
which the institution is -r so
retained which belonged i ita
who were supported as St.. - . be
covered into the treasury of the Comtuon- wealth.
2. Guardian — Petition to aell Real
Estate — Notice
Under the proAnsions of St. 1900. r. § 102, that upon a potifir.n of :\ iTir<!;'ir license to sell prop«r' an insane person a h
granted to such guar;....
notice of the petition thereior i
to the overseers of the poor of t:
in which the spenilthr'
board of insanity in '
son," such notice, ii.
person, is to be given only to the suitc it
of Insanity. . ,, , ..
R. L., c. 145. § 41. provulin- i'." » servator shall give Iwnd u- guardians of insane person",;" provisions of .law rchUiye ' sale or mortgage of the persons applicable to sueli repealed by St. 1909. c. elusive, pro\^dmg for t! guardians for insane persoi.- •'•'•'",•/ and is to be construed m connecUon wiUi statutes.
1 for of
be
trd
-on- of dl
..f ■uch
632
INDEX-DIGEST.
INSANE PERSON — Continued.
3. Mental Disease — Temporary
Care and Treatment — Certifi- cate of Phj^sician — Oath — Natural Guardian . . . 289
Under St. 1909, c. 504, § 44, providing for the temporary care, treatment and observation at the McLean Hospital of any person suffering from mental disease, "on the written applica- tion of his natural or legal guardian . . . , together with the certificate of a physician qualified as provided in section thirty-two, that such temporary care is necessary by reason of mental disease," the physician must set forth, under oath, the same qualifications as those required under section 32.
The term "natural guardian," as used in section 44 of chapter 504 of the Statutes of 1909, includes the father, and, upon the death of the father, the mother until she remarries.
Liability of Commonwealth for Act
of, released on Parole . . 151
See Constitutional Law. 1.
Removal from the Commonwealth —
Settlement . . . .207
See Pauper. 6.
Keeper of Hospital for Insane and
Feeble-minded — Suitable Per- son — Resident or Consulting Physician .... 359
See License. 2.
Exemption from Taxation of Land
acquired by Institution incor- porated for Care of Insane . 384 See Constitutional Law. 15.
Keeper of Hospital for Insane and
Feeble-minded Persons — Suit- able Person — Partnership . 563 See License. 4.
INSPECTION — Of Buildings. See Buildings.
Of Buildings — Inspection Depart- ment of District Police — Sanita- tion and Ventilation . . 192 See Buildings. 1.
Plans — Accommodations for Ten or
More Employees above Second
Story 231
See Buildings. 2.
Of Records of Public or Incorporated
Hospitals . . . .581
See Public Records. 4.
Of Steam Boilers by Insurance Com- panies — Certificate . . 585 See Insurance. 9.
INSPECTOR — Veterinary and Medical
Veterinary .... 368
See Civil Service. 9.
INSPECTOR OF FACTORIES AND PUBLIC BUILDINGS — In- spection of Buildings — Plans — Establishment — Accommoda- tions for Ten or More Employees above Second Story . . .231
See Buildings. 2.
Certificate — Intoxicating Liquors —
Hotel
See License. 1.
319
INSPECTORS OF HEALTH — Right
to enter Schools . . . 196
See Boards of Health.
INSPECTORS OF SLAUGHTERING 575
»See Civil Service. 11.
INSTITUTIONS — Investigation of Ex- penditures of . . . . 226 See Governor and Council. 1.
Investigation of Officers by Agents or
Experts employed by Governor . 403 See Governor. 4.
Persons employed to investigate
Statements or Estimates of — Contract — Compensation . 441
See Governor. 6.
INSURANCE — Foreign Insurance Com- pany — Tax upon Premiums — Reciprocal Legislation . . 19
A tax or excise assessed to a New York life insurance company upon all premiums charged or received upon contracts made by it in this Commonwealth, at a rate equal to the highest rate imposed during the preceding year by the State of New York upon Massachusetts life insurance companies doing business in New York, in accordance with the provisions of R. L., c. 14, § 28, is properly imposed upon such a company since chapter 118 of the laws of 1901 of the State of New York went into effect; and the tax or excise so assessed need not be reduced either because the New York statute has been held in that State not to be applicable to the receipt of premiums upon contracts entered into by a domestic company prior to the passage of the act, or because a New York insurance company doing business in this Commonwealth may be assessed upon a class of receipts which are possibly not as- sessed to Massachusetts companies doing busi- ness in New York, — especially since the going into efTect of chapter 94 of the Acts of 1905 of the State of New York.
2. Marine Insurance — Automobile
— Loss by Collision . . .39
The owner of an automobile may not, under the provisions of R. L., c. 118, § 29, relating to insurance against the perils of the sea and other perils usually insured against by marine insurance, including risks of inland navigation and transportation, be insured against loss
INDEX-DIGEST.
G33
INSURANCE — Continued. caused by the collision of such automobile with another object, or against liability for damage caused thereby to other property.
3. Rebate — Commission on Policy
on Life of Officer or Agent of Company . . . .47
R. L., c. 118, § 68, providing in part that no life insurance company doing business in this Commonwealth, nor any agent thereof, shall "pay or allow, or offer to pay or allow as in- ducement to insurance, any rebate of premium payable on the policy, . . ." prohibits the allowance by any such company to its agent of any commission on the premium on a policy upon the life of such agent, or the allowance to an officer of such company of any rebate of or commission on the premium on a policy upon the life of such officer.
4. Fire Insurance — Explosion . 70
A fire insurance company may not add to its policy a slip or rider, containing an agree- ment that, in consideration of the payment of an additional premium, the policy shall include loss or damage by fire caused by an explosion upon the insured premises, payment in case of loss to be at the value of the property before such explosion, since the effect of such policy is to provide insurance against loss from explosion.
5. Assessment Insurance — Foreign
Corporation ^ Change from As- sessment to Old Line Business — Valuation of Policies . . 82
A foreign insurance company admitted to this Commonwealth under the provisions of St. 1890, c. 421, an act relating to assessment insurance, which transacted business therein under the provisions of such statute until June 9, 1899, when it was authorized to trans- act the business of old line life insurance and since such date has transacted such business, is entitled to have its policies valued and to have a reserve maintained thereon on the basis of renewable term insurance, in accordance with R. L., c. 118, § 11, cl. 4, par. 2.
6. Investment of Funds — Secured
Loans — Mortgages. ._^ ■ .\.^^
Under the provisions of St. 1907, c. 576, § 37, that the capital of any domestic insurance company other than life, and three-fourths of the reserve of any domestic stock or mutual life insurance company, shall be invested as therein prescribed, a domestic life insurance company may invest its funds in loans secured by assessable stock of any trust company or bank; or in loans secured by stock, bonds and other collateral, whether or not such col- lateral is designated in St. 1907, c. 576, § 37, clauses 1 to 5, inclusive; or in loans upon mortgages of real estate to an amount exceed- ing 60 per cent, of the fair market value of the property mortgaged at the time of such loan.
INSURANCE — Coutinued.
"• Officer or Director of Iii.><uratir(>
Company — Investment nf run.;. 171 . By R. L.. c. lis. § -2-,, relutii,- in.surancc companies, it is pr<>\ 1 officer of the company, and no j.. eonmiittee thereof, charucd with the uuty of investing its funds, shall borrow tl)<« -r!!.!.- or be directly or indirectly liable for. ■ .,,i
of, loans thereof to others;" un.i ,f
such an insurance company wlio , ,.
ber of the finance comniiitce th ,»
such provision by renewing a n n
or by giving a new loan to tru~' il
estate trust of which .such din-i • ||
a trustee and a sharehi>lder. thi 10
the trust estate being in the tnisi.-,-, a.-id the equitable title thereto in such ix-rsonj! an arc for the time being shareholders.
8. Corporation — Transaction of In- surance Business — Place of C(jn- tract — Jurisdiction . . . 222
A Massachusetts corporation maintnininK a department store, which, in combination with certain other corporations, persons and co- partnerships within and beyond the C'onmion- wealth, has given to a resident in the St:itc of New York a power of attorney to niakf con- tracts of insurance in its behalf with cadi of such other corporations, persons and co-part- nerships in which all of the other coriX)rati<)n!i, persons and co-part ner.ships bear a pro|)ort ion- ate and distinct liability, is trnn«H''tiri',' the business of insurance within tin- .f
St. 1907, c. 576, § 3. which pn. :i
contract of insurance is an agrccn h
one party for a consideration pr' v
money or its equivalent or to do a: i'-
to the assured upon the (lestnn ii-... ■ .-- ..r injury of something in which the other p:irty has an interest. ..." If. however, --u'': '•■>i>- tracts are made in the State of N' '1 'd
no act in connection therewith 1 11
this Commonwealth, such corp-ji ^ . - •! engaged in the business of insurance wiihiti the Commonwealth.
9. Steam Boilers — In.spection by In- surance Companies — Ccrtinoato .Vili Under the proWsions of St. 1(M)7. c. 46.'>. | 17. as amended by St. 1912, c. 5.11. i 7. that •"in- surance companies engaK*'*! '» *'''' ' '^
inspecting and insuring steam ■ I. after each internal and exteri; if the boiler and its appe: ' > the rules fornuilato<l by tl r Rules, and if they deem thi '<• working condition otherwise, iiwue u <«riiiu«to of inspection . ..." it is thn duty of nii in- surance company making -'■ ' "' "' '"
issue a certificate upon each it
regard to the purpose- for \^ : tiou is made.
Approval of Form of Pfiliry — Es-
ercise of Legislative Power . 210
Sec C0.V8TITIT10NAL Law. 4.
634
INDEX-DIGEST.
INSURANCE COMMISSIONER — Ap- proval of Policy — Exercise of Legislative Power . . . 219
See Constitutional Law. 4.
INTOXICATING LIQUORS — Inn- holder — "Open" or "Public Bar" 6
An "open" or "public bar" is a bar or counter kept and maintained principally if not exclusively for the sale of intoxicating liquors under any one of the first three classes of licenses enumerated in R. L., c. 100, § 18, to be drunk at such bar or counter when fur- nished, such bar or counter being open to the public, so that all persons not excepted by the provisions of R. L., c. 100, § 17, cl. 4, may have access thereto, and may obtain liquor for immediate consumption.
An innholder who maintains an inn or hotel may, under the laws of this Commonwealth, have upon his premises a bar which is not within the above definition an "open" or "public bar."
2. License — Licensed Place — Li- censed Premises . . . 390
In R. L., c. 100, § 13, as amended by St. 1910, c. 476, § 1, providing in part that "in cities and towns which vote to authorize the sale of intoxicating liquors, the number of places licensed for the sale of such liquors shall not exceed one for each one thousand of the population," and that "Nowhere in the com- monwealth shall a fourth or fifth class license be granted to be exercised upon the same premises with a license of any of the first three classes" with certain exceptions therein stated, the words "licensed places" must be construed to mean places where a license is to be exercised, and such places are identical with licensed premises, except where two or more licenses are granted to the same person to be exercised upon the same premises.
A proposed bill providing that a licensed place "may consist of one or more rooms or premises adjoining but having no interior connection or means of communication with each other," would directly affect the provi- sions of R. L., c. 100, § 13, as amended by St. 1910, c. 476, § 1, for the reason that under its provisions a license of the fourth or fifth class might be exercised with a license of any of the first three classes at a single licensed place, although in a room or rooms physically separated from those in which was exercised any license of the first three classes.
Sale by Registered Pharmacist —
Certificate . . . .50
See Registered Pharmacist. 2.
■ Vendor of — Civil Service See Civil Service. 1.
105
Money received from Fees for grant- ing Licenses for the Sale of — Maintenance of Independent In- dustrial Schools . . . 315 See Schools. 4.
INTOXICATING LIQUORS — Cora-
tinued.
Hotel — Certificate of Inspector of
Factories and Public Buildings 319 See License. 1.
Vendor of — Druggists' Sixth-class
License ..... 461 See Civil Service. 10.
INVESTIGATION — Of Expenditures of
Departments and Institutions . 226 See Governor and Council. 1 .
Of Officers — Departments or In- stitutions — By Agents or Ex- perts employed by Governor . 403 See Governor. 4.
Of Statements or Estimates of
Officers, Departments or In- stitutions — Compensation of Persons employed . . . 441
See Governor. 6.
INVESTMENT — Board of, of Savings Department of a Trust Company — Member as Endorser on Note for Money loaned by Corpora- tion ..... 454 See Trust Company. 4.
INVESTMENTS — Savings Banks — Bonds of Railroad Corporation having no Completed Roadbed 43 >See Savings Banks. 1.
Of Funds of Insurance Company —
Secured Loans — Mortgages . 147 See Insurance. 6.
Funds of Insurance Company . 171
See Insurance. 7.
Of Savings Banks — Bonds, Coupon
Notes or Other Evidences of Indebtedness of the New York, New Haven & Hartford Railroad Company . . . .183
See Savings Banks. 2.
Authorized, of Savings Banks —
Notes secured by a Mortgage of Real Estate to a Trust Company 256 See Savings Banks. 3.
For Savings Banks — Bonds of
Street Railway Company — Dividend Equal to Five Per Cent, for Five Years — Returns in- cluding Nine Months, ending June 30, 1910 — Certification by Board of Railroad Commissioners 338 See Savings Banks. 5.
Legal, for Savings Banks — Bonds of
Terminal Corporations . . 462
See Savings Banks. 6.
INDEX-DIGEST.
035
LABEL — Proprietary or Patent Medi- cines — Fractional Part of Origi- nal Package — Notice — Sale of Proprietary or Patent Medicines — Violation of Law — Prosecution ISO See State Boahd of Health. 3.
Receptacle for Proprietary or Patent
Medicines or Food — Prepara- tion containing Alcohol — State- ment of Contents . . . 216 See Alcohol.
LABOR — Hours of — Insane Hospital — Day's Work — Half-holiday — Sunday Employment — Work by the Hour — Appropriations . 61
St. 1906, c. 517, § 1, providing, in part, that "eight hours shall constitute a day's work for all laborers, workmen and mechanics now or hereafter employed by the Commonwealth, . . . but in cases where a Saturday half-holiday is given the hours of labor upon the other working days of the week may be increased sufficiently to make a total of forty-eight hours for the week's work," does not require a nine- hour wage, and does not prohibit the employ- ment of laborers, workmen and mechanics by the Commonwealth for more than eight hours a day, when the contract for such employment is by the hour.
Such statute provides for an eight-hour day upon Sunday as well as upon other days of the week for persons properly employed upon that day, and does not restrict the employment of persons required to work seven days a week to forty-eight hours.
If a half-holiday is given, it must be a Sat- urday half-holiday. .
If the appropriations for the maintenance ol the Worcester Insane Hospital are fixed for the year, the trustees of such hospital are not authorized to exceed the same to comply with the provisions of such chapter.
2. State Officers or Boards — " Day's
Work" — Contract — Materials or Supplies . • .• . • f^
A State officer, board or commission must, under the provisions of St. 1906, c. 517, insert in every contract made by such officer, board or commission in behalf of the Commonwealth, excluding contracts for the purchase ot ma- terials or supplies, a clause requiring that no laborer, workman or mechanic employed under such contract shall be required to work more than eight hours in any one calendar day, whether or not such contract is to be executed within the Commonwealth. ^^
The words "materials or supplies should be construed to include articles to be used in the creation of a mechanical structure and upon which no work is to be performed under the contract.
3. Eight-hour Law — Domestic Serv-
ants — Holidays . ,. • „. -.off;
Under St. 1907, c. 269, amending St .1906
c. 517, and providing that no laborer, workman
LABOR — Continued.
or mechanic craiUoycd by or on ^-.f^h-ilf nf tho Commonwealth or of nny couir .r
in any city or town whicli hiv> .!•
provisions of R. L.. c. 10(1, § ^ in;
requested or required to work more thun i-iRhi hours in any one calendar Hay or muro tlmn forty-eight hours in any u: ' in
cases of extraordinary < i -,
maids, or other domestic .•-• : r
requested or required to work in it
hours in any one calendar day ■ ii
forty-eight hours in any one w..„, ,.»..,. iii cases of extraordinary emernoncy.
No workman, laborer or i-i'-chnni'- «»o em- ployed may be requested ; ' " -n eight hours in any one i-'^ ,'t in cases where a Saturday h n, in which case the hours of laUur ou uiUer work- ing days may be increased to make a totiil of forty-eight hours for the week's work.
Employees may arrange between thein^'lves to substitute for each other in i.rr.vi'iiT;.- for vacation periods; but they w.y r(«-
quested or required so to do by i : rs
if it results that such arrangei:. • i-s
more than eight hours' work by any oi tho parties in any one day. ^
Where an employee at a St:i' "»-
pital, as a precautionary meas';: '-d
to remain and to sleep in a room "c
room of a patient or a dormitory, iho iinio of sleep is not to be considered as tune on duty.
4. Employment of Children — Child
under Fourteen Years of Anc —
Certificate of Ability to read and
write — Factor>' or Workshop . 1(7
Under the provisions of R. L., o. HM5. J 28.
as amended by St. 100.5. c 267. § 1. *h^^ . uo
child under the age of fourteen "o
child who is over fourteen an<l ■■"
years of age who docs not ha.' 'W
as required by the foliowint? l.,ur »<*. twrw
certifying to the child's ability to r.-nd at wuhl
and to write legibly simi ' ' ■•'no
English language shall I "V
factory, workshop or m '•"
ment," no school committee ur ■ ■>«■
of schools or other person is '»
issue to a child under fourt "o
certificate above rcfcrrci '•"
may not at any time lie 1 1. >
or workshop.
= Mercantile E.stablishment — Em- ployment of Women — Manager of Department _ , ■
St. 1909, c. 514, § 47, v
" no child and no woman
laboring in a mercantil/-
than fiftv-eight hours ii.
prohibit the employment i
of a woman as the i:
ment, entrusted wi;
vision of numerous ; »,,.,,„• . s j
and whose duties require ibc . \' r. i < > j
269
'hal
:,ot .Ht
.rt-
. 'T-
in,
udit-
636
INDEX-DIGEST.
LABOR — Continued.
ment and discretion, and do not necessarily involve either manual labor or labor performed within fixed hours.
6. Vacations — Persons employed at
State House — Governor — Gov- ernor and Council . . . 413 Neither the Governor nor the Governor and
Council have any power to determine the hours
of labor or the length of vacations for persons
employed at the State House.
7. Dumping Inspectors — Civil En- gineer ..... 420
Dumping inspectors employed by the Board of Harijor and Land Commissioners, whose duty it is "to see that all material which is to be dumped in tidewater is transported and dumped in its proper locality, none of it being deposited in any other place," are not "work- men, laborers or mechanics" within the mean- ing of St. 1911, c. 494, § 1, providing that "the service of all laborers, workmen and mechanics now or hereafter employed by the common- wealth ... is hereby restricted to eight hours in any one calendar day."
The further provision of such section that "engineers shall be regarded as mechanics within the meaning of this act" does not extend to or include persons who follow the profession of civil engineering.
8. Cities and Towns — Acceptance of
Statute ..... 567 St. 1911, c. 494, providing in section 1 that "the service of all laborers, workmen and mechanics, now or hereafter employed . . . by any city or town which has accepted the provisions of section twenty of chapter one hundred and six of the Revised Laws, or of section forty-two of chapter five hundred and fourteen of the acts of the year nineteen hun- dred and nine, ... is hereby restricted to eight hours in any one calendar day," is not in force in cities and towns which have not accepted the provisions of R. L., c. 106, § 20, or of St. 1909, c. 514, § 42, but which had accepted the provisions of St. 1899, c. 344, a corresponding provision of an earlier law.
LABOR LAWS — Mercantile or Manu- facturing Establishment — Res- taurant — Establishment main- taining Lunch Room and Food Salesroom .... 455
An establishment which maintains a lunch room, and also a food salesroom from which supplies are sent to other lunch rooms main- tained by the same establishment at other places and lunches are sent to be served at certain high, Latin and normal schools, the receipts of such food salesroom being a little over one-eighth of the total receipts, is not, by reason of the maintenance of such food salesroom, excluded from the definition of "mercantile establishment" in St. 1909, c.
LABOR LAWS — Continued. 514, § 17, that such establishment "shall mean any premises used for the purposes of trade in the purchase or sale of any goods or merchandise, and any premises used for the purposes of a restaurant or for publicly pro- viding and serving meals," and is not. therefore, a "manufacturing establishment," defined by the same section as "any premises, room or place used for the purpose of making, altering, repairing, ornamenting, finishing or adapting for sale any article or part of an article."
LAND — Sale of, to Institutions, by
Trustees at Profit . . .308
See Massachusetts Agricul- tural College. 1.
Purchased by Trustees of Lyman
and Industrial Schools from In- come of Lyman Fund — Title . 452 See Lyman and Industrial Schools.
LAUNCH — Pursuit of Wild Fowl .See Fisheries and Game.
189
LECHMERE CANAL — Authority of Metropolitan Park Commission to widen and deepen . . 429
See Metropolitan Park Com- mission. 4.
LEGISLATION — Preparation of Draft
by Attorney-General . .111
<See Attorney-General. 1.
LEGISLATIVE COUNSEL AND AGENTS — Returns — Com- pensation ' . . . . 469
The provision of R. L., c. 3, § 24, requiring the keeping of a docket for the entry of the names of legislative counsel and agents, that "such entries shall include the name and business address of the employer, the name, residence and occupation of the person em- ployed, the date of the employment or agree- ment therefor, the duration of the employ- ment, . . . and the special subjects of legis- lation, if any, to which the employment relates," is satisfied by an entry that a person is so employed "on all matters of interest to the employer," unless the employment is for some special subject of legislation.
The provision of R. L., c. 3, § 24, above quoted, and the further provision of section 30, that an employer "shall render to the secre- tary of the commonwealth a complete and detailed statement, under oath, of all expenses incurred or paid in connection with the em- ployment of legislative counsel or agents, or with promoting or opposing legislation," are not complied with by a statement that a per- son is employed as legislative counsel upon an annual salary without a statement either of the amount of such salary or of a fair apportion- ment thereof.
INDEX-DIGEST.
G37
LEGISLATURE — EliKibility of Member for Other Office — Examiner of Private Bankers . . .118
A member of the Legislature for the session of 1907 is ineligible for appointment to the position of examiner of persons, partnerships, associations or corporations engaged in private banking, created by St. 1907, c. 377, § 4.
Right to determine Height of Water
to be maintained in a Great
Pond 273
See Constitutional Law. 6.
LETTER CARRIERS — Free Trans- portation on Street Railways — Constitutional Law . . . 388
<See Street Railways. 2.
LICENSE — Intoxicating Liquors — Li- censed Premises — Certificate of Inspector of Factories and Public Buildings — Hotel — Lodging House — Ten or More Rooms above the Second Story . .319
The provisions of R. L., c. 104, § 49, requiring that the certificate of an inspector of factories and public buildings shall be obtained before an innholder's license or a license to sell in- toxicating liquors may be granted for any premises, is not applicable, under R. L., c. 104, § 25, as amended by St. 1905, c. 347, and St. 1907, c. 503, § 1, to a hotel in which not more than ten persons lodge or reside above the second story.
In section 33 of chapter 104 of the Revised Laws, providing in part that "the owner, lessee, proprietor or manager of a hotel, which is not otherwise suitably provided with fire escapes, or a lodging house which contains ten or more rooms above the second story, shall place ... a knotted rope . . . for use as a fire escape in every room of said hotel or lodging house used as a lodging room, except rooms on the ground floor," the words "which contains ten or more rooms above the second story" apply to and describe a lodging house, and have no reference to the word "hotel" in said section.
2. Keeper of Hospital for Care of
Insane and Feeble-minded — Suitable Person — Resident or Consulting Physician . . 359
Under the provisions of St. 1909, c. 504, § 24, that " the governor and council may, upon the recommendation of the state board of insanity, license any suitable person to establish and keep a hospital or private house for the care and treatment of the insane, epileptic, feeble- minded, and persons addicted to the intem- perate use of narcotics and stimulants," a physician who is employed by the owner or owners of such hospital or private house as resident physician in charge, or who is on the staff of consulting physicians connected there^ with, is not a suitable person to receive such license.
LICENSE — Conlimied.
3- Steam Boiler or Kiij;iiif — Owiicror
User — OpiTutioii — InlicciuttHl Person — ( 'o;il Shovelers . . 524
The provi.-^ion of U. L., c. 102. j h an amended by St. 1907, c. 373, § 1. ;;!,.l >t i-m, c. 562, § 1, that "the owner or n .\\\
boiler or engine . . . shall i.. ..r
cause to be operated a steam I. for a period of more than on- the person in charge of and opcr,. licensed," allows such owner or u.m r, m thu exercise of good faith and in an uniivoidiiblf emergency, a period of one week witliin which to procure a person licensed in accordimce with the requirements of law; and V>y th<- u»o of such period, tlio owner or u.-' ■ ' ■ ro-
after forever prohiliited from :.■ -.-If
under like conditions of such i\\\
The provision of R. L., c. 1U_', J >0, tm amended by St. 1911, c. 562, § 2, that •"to work with a licensed person then- may lie employed not more than one unliccnswd jmt- son, who, in the presence and under the personal direction of the licen.sed person, may operate the appurtenances of a lM)ilcr or engine," does not require that coal shoveler.-*, whose sole duty consists in putting coal under the boiler, should be licensed, 8inr<* coal shovelers, or other persons )•'' the
duties of mere laborers in haii'. . -'-d
in the operation of a boiler or i- not
operating any appurtenances thercot.
4. Keeper of Hospitid for Insane or
Feeble-minded — Suitable Per- son— Partnership . 563 Under the provisions of St. 1909, c. 504, } 24. that "the governor and council may, ii[»on the recommendation of the state lK»»rd of insanitv, license any .suitable person to es- tablish" and keep a hospit.al or privMf houHc for the care and treatment > ■' no, epileptic, feeble-minded, and p' '•<i to the intemperate use of narc • nu- lants," a license may not be Krantitl lo a partnership as such.
5. To operate Automobile — Revoca- tion — Conviction — JudRment of Guilty placed on File . 570
The Massachu.sptts Highway f'omniKwion. under the provisions of St. I'.M)'' ' * -2.
that "a conviction of a vioiatioi. ■"»
shall be reported forthwith b "r
trial justice to the conm •''
revoke immediately the li •'
so convicted," is warrant*<l ... .. .. ...^ -- • - '•"
ment of guilty placed on file by the tnai coUfl as a conviction.
Innholder — "OiM?n" or "PubUc
Bar" • ■ ■ ^
See Intoxicating Liquorb. 1.
For Fi.sh Trap maintainwi in Tide
Water
Sec Tide Water.
18
638
INDEX-DIGEST.
LICENSE — Continued.
For Sale of Intoxicating Liquor —
Fees — Maintenance of Inde- pendent Industrial Schools . 315 See Schools. 4.
Use of Public Highways for Comfner- cial or Advertising Purposes See CoNSTiTUTiONAii Law. 14.
583
Licensed Place for Sale of Intoxicat- ing Liquors — Licensed Premises 390 See Intoxicating Liquors. 2.
Sixth-class — Druggist . . . 461
See Civil Service. 10.
LIFE INSURANCE.
See Insurance.
LOAN — By Trust Company to Single
Individual . . . .69
See Trust Company. 1.
LOCATIONS — For Telegraph, Tele- phone and Electric Light Poles on State Highway . . .59
See State Highway. 1.
Alteration of, of State Highway ASee State Highway. 2.
113
LODGING HOUSE — Ten or More Rooms above the Second Story
— Hotel 319
See License. 1.
LOTTERY — Element of Chance — Vot- ing Contest .... 582 An arrangement or contract entered into by a foreign corporation dealing in ponies, with certain merchants and managers of theatres within the Commonwealth, by which each such merchant or manager contracting with the pony company issues to every customer for each 25 cents received 25 votes, which may be cast by the bearer in favor of any contestant in a contest in which the person receiving the highest number of votes is entitled to a pony and outfit from such company, involves no element of chance, and therefore does not constitute a lottery within the meaning of the several sections of R. L., c. 214, which prohibit lotteries within the Commonwealth.
LYMAN AND INDUSTRIAL SCHOOLS
— Trustees — Lyman Fund — Income — Purchase of Land — Title 452
Under the provisions of St. 1911, c. 566, § 3, that the Trustees of the Massachusetts Training Schools "succeed to the trusts, right, powers and duties" of the trustees of the Lyman and Industrial Schools, and of R. L., c. 86, § 1, that the board of trustees of the Lyman and Industrial Schools should be "a corporation for the purpose of taking, hold- ing and investing in trust for the common-
LYMAN AND INDUSTRIAL SCHOOLS
— Co7itinued. wealth any grant, devLse, gift or bequest made for the use of any institution of which they are trustees,"' the trustees of the Massa- chusetts Training Schools may purchase, from the accumulated income from the Lyman Fund and Lyman Trust Fund, so called, land for the use of the Lyman School.
The title to the land so purchased should be taken in the name of the trustees, in trust for the Commonwealth.
Without express or implied authority from the Legislature, title to land cannot be taken in the name of the Commonwealth by any public officer or board.
LYMAN FUND 452
See Lyman and Industri.\l Schools.
MANDAMUS — Writ of — Public Char- itable Trust — Technical Ques- tion — Use of Name of Attorney- General ..... 588 See Attorney-General. 5.
MANUFACTURING ESTABLISH- MENT — Establishment main- taining Lunch Room and Food Salesroom .... 455
See Labor Laws.
MARLBOROUGH, CITY OF — City Charter — Superintendent of Streets — Appointment . . 593
See Attorney-General. 6.
MARRIAGE — Notice of Intention of —
Entry — Oertificate . . . 467
See Notice.
MARRIED WOMAN — Wife of Princi- pal as Surety on Official Bond . 260 See Bond.
MASSACHUSETTS AGRICULTURAL COLLEGE — State Institution — Trustees — Sale of Land to Institution at a Profit _ . . 308
To be a State institution implies that the institution, and the work it carries on, is directly under the control of the Common- wealth; that its officers are the agents of the Commonwealth, and that its property is the property of the Commonwealth;- and the Mas- sachusetts Agricultural College at Amherst, a public charitable corporation organized under the provisions of St. 1863, c. 220, for educa- tional purposes, and having a distinct corporate existence, does not answer these requirements, and is not, strictly speaking, a State institution. The trustees of the Massachusetts Agri- cultural College may not legally, as individuals, purchase land and later sell it to such institu- tion at an increased cost over the original price.
INDEX-DIGEST.
039
MASSACHUSETTS AGRICULTURAL COLLEGE — Continued.
2. Employees of Commonwealth —
Retirement — Teachers and Em- ploj^ccs ..... 460 The Massachusetts Agricultural College is a public charitable corporation organized for educational purposes, and is not, strictly speak- ing, a State institution, and its teachers and employees are not eligible to participate in the retirement system established by St. 1911, c. 532, for employees of the Commonwealth.
MASSACHUSETTS DISTRICT PO- LICE — Chief — Boiler Inspec- tion Department — Chief Inspec- tor 492
St. 1906, c. 521, entitled "An Act to prov-ide for the appointment of a chief inspector of the boiler inspection department of the District Police," which pro\-ides in section 1, in part, that "said chief inspector shall have super- vision over the members of said boiler inspec- tion department in order to secure the uniform enforcement throughout the commonwealth of all acts relative to the inspection of boilers and the examination of engineers and firemen," does not create an independent department, and the action of such chief inspector is under the jurisdiction and subject to the orders of the Chief of the District Police.
MASSACHUSETTS HIGHWAY COM- MISSION — Motor Vehicles owned by United States Govern- ment — Certificate of Registra- tion — Fees .... 318 Under St. 1909, c. 534, which in section 2 requires the registration of motor vehicles, and in section 29 fixes the fees to be collected therefor, with the further pro^dsion that the Massachusetts Highway Commission "may issue certificates of registration for motor vehicles and licenses to operate the same to any member of the foreign diplomatic corps without the payment of the fees therefor," such commission is not authorized to issue a certificate of registration without the payment of fees for motor vehicles owned by the govern- ment of the United States.
Original Location for Poles in State
Highway . . • .59
See State Highway. 1.
Automobiles — Posting Special
Regulations of Cities and Towns — Sign Boards - • .78
See Automobiles. 2.
MASSACHUSETTS HOSPITAL FOR FEEBLE-MINDED — Cities or Towns — LiabiUty for Support of Settled Inmates — Notice . 57 R. L., c. 85, § 20, providing that "a city or
town in which an inmate of the state hospital
is found to have a legal settlement shaU be.
liable to the commonwealth in like manner
MASSACHUSETTS HOSPITAL FOR FEEBLE-MINDED -r,,:f „,<.,/.
as one town i.^ hal>lc to iiimihir i:, !;' . . .■•■-," does not limit the lialiility ■ town to a period of three nioir
ing the date of notice, aa is ih
towns under R. L., c. 81, § 17, and ouch liability is not affected by want of notice.
MASSACHUSETTS STATE SANA- TORIUM — Application — Preference of Citizens . 90
Under the provision of St. 1907, c. 222, t 1.
that "preference shall be given U> '' plicants who are citizens of the ' wealth," the trustees of the .Ma- State Sanatorium are authorized t.j mvu precedence in cases of tuberculosis: first, to
incipient cases of citizens; second, t" •■'' !
cases of citizens; third, to incip where the applicants are not citi, fourth, to advanced cases where the iii'ihrniin are not citizens.
MASTER IN CHANCERY — Removal
from County — Vacancy — Ap- pointment .ISO See Governor. 3.
MATERIALS AND SUPPLIES —
Hours of Lalior — Stati- Con- tracts . .73 See Labor. 2.
MAYOR — Duty in Case of Riot or Other Disturbance of the Public Peace — Miliiia — Precept — Discretion .... 515
See Riot.
MEASURES 51
Sfc Weights .\sn Mkssikes.
MEMBER OF LEGISLATURE —
Eligibility for Other Otfico . 118
Sec LEGI3I.u\TfKE.
MERCANTILE ESTABLISHMENT -
Prfnii.->cs of Tilf«r:ii>li ' m.;. >;. Premises maintained by a pany do not constitute n mT. ment within the pr § 17, that " 'incrr: mean any preniisi - trade in the purchu.-i- oi merchandise, and any i purposes of a re^tauriim viding and serving mcal-
Emi)lovnient of Wonini - ii'.iir- <•.
Lai)or — .Manager of Dcpiirt-
ilJ
menl
Sec Labor.
269
•Eh!
maintnining Lunch I'«H)d SalcB-oom . «0 Laws.
640
INDEX-DIGEST.
METROPOLITAN PARK COMMIS- SION — Rules and Regulations for the Use of the Charles River 14 The Metropolitan Park Commission may, regardless of the ownership of the soil beneath the stream, enact and enforce rules and regula- tions governing the public use of the Charles River at any point within the metropolitan parks district, provided that such rules and regulations are not repugnant to the power of Congress to regulate commerce, and are not in conflict with the authority to supervise tide waters, vested by R. L., c. 96, § 8, in the Board of Harbor and Land Commissioners.
2. Rules and Regulations — Road- ways — Violation of Rules and Regulations — Arrest — Warrant 96
The authority of the Metropolitan Park Commission, under St. 1893, c. 407, § 4, and St. 1894, c. 288, § 3, to make rules and regula- tions for the government and use of open spaces, lands, rights and easements or interests in land, is the same whether such lands or rights, easements or interests in land to which such rules are applicable were acquired and are controlled by such commission under St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2.
The term "roadways," as used in St. 1894, c. 288, § 3, includes roadways under the care of the Metropolitan Park Commission, con- structed upon lands acquired under St. 1893, c. 407, §§4 and 6.
A police officer appointed by the Metropoli- tan Park Commission may arrest without war- rant any person who violates in his presence any rule or regulation duly made by such commission by authority of St. 1894, c. 288; and may arrest without warrant any person who violates in his presence any rule or regula- tion duly made by such commission by au- thority of St. 1903, c. 407, whenever such violation involves acts which are in fact breaches of the public peace.
3. Rules and Regulations for Govern- ment of Police Force — Punish- ment of Breach of Regulations by Forfeiture of Pay — Transfer — Civil Service — Veteran — Waiver by Officer of Benefit of Civil Service Rules . . .165
The Metropolitan Park Commission under existing provisions of law has authority to establish rules for the government of its police force, and under such rules to punish a police officer, who has committed an offense, by a forfeiture of pay for a period not exceeding thirty days; or to transfer a police officer who is a veteran from a reservation or parkway in one city or town to a reservation or parkway in another city or town within the jurisdiction of such commission.
The authority of the Metropolitan Park Commission in the premises is not limited by St. 1904, c. 314, § 1, which provides that persons holding office or employment in the
METROPOLITAN PARK COMMIS- SION — Continued. public service of the Commonwealth, classified under the civil service rules, "shall hold such office or employment and shall not be removed therefrom, lowered in rank or compensation, or suspended, or, without his consent, trans- ferred from such office or employment to any other except for just cause and for reasons specifically given in writing;" or by St. 1905, c. 150, § 1, and R. L., c. 19, § 23, which extends a like protection to veterans in the public service of the Commonwealth.
An agreement signed by a police officer upon entering the service of the Metropolitan Park Commission, to the effect that he will obey and be bound by such rules and regulations as are or may be from time to time adopted by such commission, would not constitute a waiver by such officer of any rights under the statutes above quoted; and such agreement is material only as evidence that at the time of entering the ser\'ice of such commission the subscriber was aware of the rules and regulations then in force.
4. Charles River Basin — Lechmere
Canal — Authority to widen and deepen ..... 429 The Metropolitan Park Commission, under the provisions of St. 1903, c. 465, which in section 4 required the Charles River Basin Commission to "dredge navigable channels in the basin" and to "dredge Lechmere canal to such depths as will afTord to and at the wharves thereon not less than seventeen feet of water up to and including Sawyer's lumber wharf, and not less than thirteen feet of water from said wharf to the head of the canal at Bent street," and of St. 1909, c. 524, § 1, by which such commission succeeded to "all the powers, rights, duties and liabilities" of the Charles River Basin Commission, has authority to widen a part of Lechmere Canal, to reinforce the adjoining land by piling and to dredge the part of the canal so widened to the depth prescribed in said chapter 465.
MILITIA — Armories — Use for Public Purposes — Rallies of Political Parties and Meetings for the Discussion of Public Questions . 344 Under the provision of St. 1908, c. 604, § 140, that "armories . . . shall not be used except by the organized militia for such mili- tary purpose or purposes incidental thereto as may be designated by the commander-in- chief: provided, however, that the commander- in-chief, upon terms and conditions to be prescribed by him and upon an application approved by the military custodian of an armory . . . may allow the temporary use of such armory for public purposes," an armory may be used for rallies of political parties or meetings for the discussion of questions of .public policy which are of interest or benefit to the community at large.
INDEX-DIGEST.
r.n
MILITIA — Continued. 2. Armory Commission — Construc- tion of Armories . . 358 The duty of the armory commission, under the provision of St. 1908, c. 604, § 133, as amended by St. 1909, c. 323, § 1, that "if in their judgment the needs of the service demand it, subject to the approval of the commander-in-chief, . . . shall construct ar- mories, not exceeding three yearly, until the volunteer militia shall be provided with ade- quate quarters," is to construct armories until the volunteer militia are provided ^^^th ade- quate quarters, subject to the limitation that there shall not be under construction in any one year more than three such armories.
Right of Sheriff to call upon, in Case
of Actual Tumult, Riot or Mob . 488 See Sheriff.
Precept requiring Appearance of, in
Time of Riot — Duty of Sheriff, Mayor or Selectmen — Discre- tion ..... 515 See Riot.
Term of Office of Adjutant General
— Constitutional Law . . 546
See Adjutant General.
MINOR — Adoption — Discharged by State Board of Charity — Re- ligious Faith . . .124 See State Board of Charity.
Employment in Textile Goods . See Textile Goods
Manufacture of
126
MISTAKE — Of Fact or Law — Repay- ment of Money paid under — Moral Obligation — Public Pur- pose ..... 503 See Constitutional L.^w. 21.
MONOPOLIES — Public Policy — Leg- islature ..... 425 See Attorney-General. 3.
MORTGAGE — On Real E.state — Taxation of Domestic Corpora- tion — Deductions . . . 335 See Taxation. 8.
On Real Estate — Taxation — Bonds
of Domestic Electric Corporation secured by Mortgage on Real Estate and Personal Property — Exemption . . • .431
See Tax,\tion. 10.
MOTOR VEHICLES — Owned by
United States Government — ^ Registration — Fees . .318
See Massachusetts Highway Commission.
MUSEUM OP PINE ARTS - \|-
propri;iti()ii fur M-di.-y r;ii«.Nl
by Taxation for aj^o
See Constitutional Law. 13.
NAME — Of Corporation rontnininK the
Words "Bank" or "BunkinR" 250 Sec Cohporation. 3.
NATIONAL BANK — Savings Bank — ConiiiMtinK Offices — Elevator or Dunilj-waiter . . . 204
See Savings Banks. 4.
Tax on Deposits — Constitutional
Law 409
See Tax-^tion. 9.
" NATURAL GUARDIAN "
See Ins.vne Perso.n. 3.
NATURALIZATION — Foes
S( e ( LKHKS of Court.
289
100
NEW ENGLAND COTTON YARN COMPANY — Ta\:iti.,ii — Bonds in Excess of MurtguKud Real Estate ' . . . .24
Sec T.\X.^.TION. 1.
NEW YORK, NEW HAVEN & HART- FORD RAILROAD COM- PANY—.'^i ret Railway C.ri...- ration — Ownership and ("■in- trol of Springfield Street Kailway Company — Supreme Judiii;U Court — Decree — Conipliaiiro 471 The action of the New York. Now Hiivon A Hartford Railroad Company in divesting itself of all interest in or control over the New England Investment and Security (Oinpaiiy, which, through tlie inslruinentidity of tlio Springfield Railway Companies, (>wiii-<J and controlled the Springfield >fr,.\ i: nlwav Company, and by placing tie 'ion
street railway compMny in th- md
control of the New i ■ • ' Security Company, are not coiuiected a
the New York, New llavxii A : • uJ-
road Company and have ei no
agreement, trust or other ui: win
said company, with re.s|x?ct t ■»
officers or trustees of the N< v I";
vestment and Security C'ompai. in good faith, ennstitutes a <• the decree of the Supreme ' dated June 23, 19l)S, which ct,. -'W
York, New Haven & Hartfonl m-
pany from .subscril)ing f«>r or tn^..., ■■ • -hK. directly or in<lirectly. the stoek of the >pnng- field Street R.ailway Company, .nnrl fr-.m .-w- suming or exenising the franch <'t^
of subscribing for, taking or h- x^li
of such corporation.
642
INDEX-DIGEST.
NEW YORK, NEW HAVEN & HART- FORD RAILROAD COM- PANY — Continued.
Bonds, Coupon Notes or Other Evi- dences of Indebtedness of — Au- thorized Investments for Savings Banks ..... ^ee Savings Banks. 2.
183
Repayment to, of Money paid under
Mistake of Fact or Law — Moral ObHgation . . . 503
See Constitutional Law. 21.
NOLO CONTENDERE — Violation of Pharmacy Law — Conviction and Fine . . . .72
See Pharmacy Law. 1.
Conviction — Case placed on File . 514
See Game Laws.
NOTE — In Payment of Money borrowed in Anticipation of Taxes — Limit of Authority to issue . 327 See Cities and Towns. 3.
Demand — Time of Payment —
Note payable to Town Treasurer 342 See Towns. 2.
For Money loaned by Trust Com- pany, Member of Board of In- vestment of Savangs Department as Endorser .... 454 <See Trust Company. 4.
Payable "during the Year 1912" —
Date of Payment . . . 523
See Towns. 4.
Of Town — Certification — Director
of Bureau of Statistics — Vote to authorize Selectmen to refund Debt "upon the Passage of an Act authorizing the Same" . 578 See Towns. 6.
NOTICE — Of Intention of Marriage —
Entry — Certificate . . . 467
Under the provision of R. L., c. 151, § 16, as amended by St. 1911, c. 736, § 1, that "persons who intend to be joined in marriage in this commonwealth shall, not less than five days before their marriage, cause notice of their intention to be entered in the office of the clerk or registrar of the city or town in which they respectively dwell, or, if they do not dwell within the commonwealth, in the office of the clerk or registrar of the city or town in which they propose to have the marriage solemnized," and the provision of R. L., c. 151, § 53, as amended by St. 1911, c. 736, § 2, that "after the expiration of five days from the date of the entry of such intention the clerk or registrar shall deliver to the parties a certificate . . . ,
NOTICE — Contimied.
specifying the time when notice of the inten- tion of marriage was entered with him . . . , " delivery of the certificate should not be made until the expiration of five full days after the date of entr>', excluding the daj^ of such de- livery and Sundays and holidays.
County Commissioners — Contracts
for Construction of Public Works 9 5ee County Commissioners. 1.
Of Liability for Support of Settled
Inmates of Massachusetts Hos- pital for Feeble-minded . . 57 See Massachusetts Hospital FOR Feeble-minded.
Of Aid rendered State Pauper Place of Settlement of Wife See Pauper. 5.
145
Of Petition of Guardian of Insane
Person to sell Real Estate . 252
See Insane Person. 2.
NUISANCE — Abatement — Pending Complaint to Local Board of Health — Jurisdiction of State Board of Health . . .85
iSee State Board of Health. 2.
OFFICE — Eligibility of Member of Leg- islature for . . . .118 See Legislature.
Term of, of Adjutant General —
Constitutional Law . . . 546
See Adjutai^t General.
OFFICER — Of Insurance Company — Commission on Policy on Life of — Rebate . . . .47
See Insurance. 3.
CivU Service — Exemption — Clerk
of Chief of Police . . .158
jSee Civil Service. 3.
— Of Insurance Company — Invest- ment of Funds . . . 171 »See Insurance. 7.
Administrative or Ministerial — In- surance Commissioner — Ap- proval of Policy — Exercise of Legislative Power . . '. 219 See Constitutional Law. 4.
• Assessors — Term of Office 5ee Towns. 1.
Truant Officer — Woman See Truant Officer.
337
444
INDEX-DIGEST.
i\\:i
OFFICERS — Of Institutions for Insane — Disposition of Property of In- mates ..... 132 <See Ins.vne Person". 1.
Of Westborough State Hospital —
Appointment and Compensation 313 See Westborough State Hos-
PIT.\.L.
■ Appointment subject to Confirmation
by City Council — Constable . 325 See Civil Service. 8.
Investigation of, by Agents or Ex- perts employed by Governor . 403 .See Governor. 4.
Administrative — Custody and Au- thentication of Statute — Pre- sumption of Lawful Passage . 415 .See Statute. 2.
Persons employed to investigate Statements or Estimates of — Contract — Compensation . 441
See Governor. 6.
•Of County, City or Town — Duty in Case of Riot or Other Dis- turbance of the Public Peace . 515 See Riot.
OFFICES — Executive, of Foreign Cor- poration -Rathin the Common- wealth — Usual Place of Business 255 See Foreign Corporation. 4.
National Bank or Trust Company
and Sa\-ings Bank — Elevator or Duml>waiter .... 264 See Savings Banks. 4.
OPENING — In State Highway for Serv- ice Pipes — Cities and Towns . 242 See St.^te Highway. 4.
OVERSEERS OF THE POOR — Con- tagious Diseases — Temporary Aid to Unsettled Paupers . .137
See Pauper. 4.
PARDON — Petition for Pardon — Ref- erence to Executive Council . 5 .See Governor. 1.
PARTNERSHIP — Keeper of Hospital for Insane and Feeble-minded Persons — Suitable Person . 563
See License. 4.
PAUPER — Settlement — EfToot of Kp- troactive Statute upon Deriva- tive Si'ttloniciit Where the derivati- which was not full\ May 1, 18G0, and (ii.i ,,., ,.., . quent acquisition of a scttk-nu-i. place, was defeated and lost hy i ■ pro\-ision of R. L., c. 80. { fj. ' of a daughter derived from that subsequent to May 1. 1^G0. i- ;. : afifected by the loss of the settlemeat oi mother.
the
2. Derivative Settlement — Retroac- tive Statute . . . S4 A pauper born in 1830 who derived a m-tth- ment from his father in 1^4X. whifh tw'--»n>«? fixed when such paui" : ' ' i> - quired a settlement .f May, 1860. and sue!,
fore defeated and lost by il«c r- ►-
^^sion of R. L., c. 80, S 6, notwi' lo
fact that the settlement of thr i.itncr > unc within the exception containetl in such statute, and was not defeated thereby.
3. Settlement — .Assessment of Taxes 1 14
Under the provisions of R. L., c. hO, { 1. cl. 5, providing that "A person of the aK<' of twenty-one years who resides in any plare within this Conunonwealth for five con."«ecutivc years and within that tim'» pays all »into. county, city or town taxi - ' ' ' ■•»
his poll or estate for an> <n
that time shall therein- a, ■■t
in such place," it is necessary ; it
the required taxes should Ix? ; -<>
that the assessments thereof slu...... .^ !o
within such period.
4. Contagious Diseases — Quarantine
— Teniporar>- .\id t<» rMs4ttlcd Paupers — Cities and Townn — Board of Health — Oversceru of the Poor n7
If the family of an 1. c
from cont agious dise: v -
health, but not quar
reason that such fani I : a
themselves, and are, ;
city or town wherr ' '>
aid should l)e rcmhT'
poor under the provi.-; . -'.
the temporary aid law, .-m ..ul>it.«cl
to the re.<tri''tinn'' »h<T.-in .
If the 1. • ' ' - • -^n
expends n '^
of a persi": ■^■
and thcrefoft ,|uur.iii:;:;i i ■ •>
expense is incurred for th<- '"*
public health, and cannot • «"
from the city or town wli- i -^^
settled, or from thf" f'on "
persons have n<>
In neither oi *"• **
rendered paup* r.
644
INDEX-DIGEST.
PAUPER — Continued.
5. State Pauper — Aid rendered in
Place of Settlement of Wife — City or Town — Reimbursement by Commonwealth — Notice . 145 Where a town seeks reimbursement under the provision of R. L., c. 85, § 16, that "if a state pauper has a wife who is also a pauper having a legal settlement in the commonwealth, he shall be supported by the place where his wife has her settlement, and the common- wealth upon written notice to the state board of charity within sixty days after aid is first given to him shall reimburse such place," such town must show that notice was given strictly in accordance with the terms of the provision for reimbursement; and a town is not entitled to be reimbursed for expenses incurred for a period of sixty days prior to the date of notice, when more than sixty days have elapsed since aid was first rendered.
6. Insane Person — Removal from
the Commonwealth — Settlement 207 The provision of R. L., c. 80, § 6, that "a person who is absent from the commonwealth for ten consecutive years shall lose his settle- ment," is applicable to an insane person who was removed to an asylum in another state and there maintained for more than ten con- secutive years.
PERSON — As not including Corporation 66 See Taxation. 2.
PHARMACY LAW — Plea of Nolo Con- tendere — Conviction and Fine . 72 A plea of nolo contendere, followed by a fine imposed by the court, is a conviction within the meaning of R. L., c. 76, § 17, pro-viding that the Board of Registration in Pharmacy may suspend the license of a registered phar- macist only "for a cause punishable by law," and "after his conviction by a court of com- petent jurisdiction."
2. Conduct of Business — Attend- ance of Registered Pharmacist . 92 R. L., c. 76, § 23, requires that an unregis- tered member of a copartnership engaged in the business of pharmacy, who compounds for sale or dispenses for medicinal purposes drugs, medicines, chemicals or poisons, shall do so only under the personal supervision of a regis- tered pharmacist.
PHYSICIAN — Certificate of — Tempo- rary Care and Treatment of In- sane Person .... 289 See Insane Person. 3.
Resident or Consulting — Keeper of
Hospital for Insane and Feeble- minded ..... 359 See License. 2.
PIPES — Right of Town to open State
Highway, to lay . . . 242
See State Highway. 4.
PLAGE — Licensed . .390
See Intoxicating Liquors. 2.
PLANS — Approval of, by Inspector of Factories and Public Buildings
— Establishment . . .231 See Buildings. 2.
POLICE — In City of Boston — Certifi- cation of Pay Rolls . . . 164 See Civil Service Commission.
Metropolitan Park — Rules and Reg- ulations ..... 165 See Metropolitan Park Com- mission. 3.
POLICE OFFICER — Rules and Regu- lations of Metropolitan Park Commission — Violation — Ar- rest without Warrant . . 96 See Metropolitan Park Com- mission. 2.
POLICE POWER.
See Constitutional Law.
PORTLAND TERMINAL COMPANY
— Bonds — Legal Investment
for Savings Banks . . . 462
See Savings B.\nks. 6.
POWER BOAT — Pursuit of Wild Fowl 189 See Fisheries and G.^me.
PREMISES — Licensed
.See Intoxicating Liquors.
390
PRISON — Regulation of Sale of Goods, Wares and Merchandise made by Convict Labor in . . 495
iSee Constitutional Law. 20.
PROPERTY — Of Insane Inmates of Public Institutions — Disposi- tion 132
See Insane Person. 1.
PROPRIETARY OR PATENT MEDI- CINES — Label .180 See State Board of Health. 3.
Containing Alcohol — Receptacle —
Statement of Contents . . 216
.See Alcohol.
PUBLIC ADMINISTRATOR — Prop- erty of Insane Inmate of Public Institution .... 132 See Insane Person. 1 .
INDEX-DIGEST.
(ii.l
PUBLIC CHARITABLE TRUST —
Administration of Trust Fund — Mandamus — Use of Name of Attorney-General . . . 58S
iSee Attorney-General. 5.
PUBLIC FUNDS — Expenditure for Re- lief of Destitute Families of Strik- ing Employees .... 486 .See Constitutional Law. 18.
PUBLIC OFFICER — Resignation — Acceptance — Governor — Ex- ecutive Council . . . 1 The resignation of a public officer, appointed, with the advice and consent of the Council, by the Governor, becomes effective upon accept- ance by the Governor without further action thereon by the Executive Council.
2. Investigation — Employment of
Counsel — Expense . . .29
Upon an investigation or hearing of charges preferred against a State official or board by the Governor and the Executive Council, such official or board may not employ counsel at the expense of the Commonwealth.
3. Register of Deeds — Official Bond 182
A bond given by the register of deeds of a county to the county commissioners thereof, and running to such commissioners, does not satisfy the requirement of R. L., c. 22, § 7, that "each register shall give bond to the county for the faithful performance of his official duty, with such sureties and in such sum as the commissioners or mayor [in the county of Suffolk] respectively shall approve."
PUBLIC PARK — Change of Use —
Proprietary Rights . . . 406
See Constitutional Law. 16.
PUBLIC POLICY — Of Commonwealth toward Monopolies — Determi- nation — Legislature . . 425 See Attorney-General. 3.
PUBLIC PURPOSE — Rehef of Persons out of Employment, by Construc- tion of Highways in Times of In- dustrial Distress . . . 305 See Constitutional Law. 10.
Use of Armory for jSee Militia. 1.
344
■Public Highways — Erection of
Structures over Public Ways . 375 See Constitutional Law. 12.
Money raised by Taxation — Appro- priation for the Benefit of the Museum of Fine Arts . . 380
^ee Constitutional L.^w. 13.
PUBLIC PURPOSE — (\,uimu.:l.
Appropriiilioii <,f Pul^lic Fund* for
Relief i,l Dcstitulo Fuiuiliwj of Striking Employeci . . 48(J
See Co.NSTITUTIO.VAL Law. 18.
Appropriation of Public Funds —
Moral Obligation — Ropiiyment of Money paid under Mistake of Fact or Law .... 503 See Constitutio.nal Law. 2L
Appropriation of Public Funds for
Homes for Mechanics, Laborers,
or Other Wage Earners . .521
See Constitutio.val Law. 22.
Appropriation of Public Funds for
Reclamation and Sale of Wet
Lands 538
See Constitutional Law. 25.
PUBLIC RECORDS — Returns of Com-
panii-.- (imaged i:; *' • '■' •
sion of Intelligcii 122
By St. 1906. c. 433, the \ 1 Ai-
way Commi.'^sion is requircl t- . lilo
the annual returns made by coin .-ed
in the transmission of intelligeui' - .-ity
within the Commonwealth, anil such n-turns are therefore pubUc records, under R. L., c. 35, § 6, which defines public records to Ikj "anv written or printed i)ook or paper . . . which any officer or employee of the Commonwealth . . . has received or is required to receive for filing."
2. Letters and Report.s in Custody of
State Board of Health .136
Under the provi.sions of R. L., c. 35, { 5. that "The words 'pul)lic records' shall . . . mean any written or printed U>ok or \iti\>pt ... in or on which any entry hsis Ix-t-n niado or is required to be made by l:iw. <>r which
any officer or employee of the <" • •■ illh
. . . has received <>r is require: :or
filing," reports and letters of r i<'h
are the result of invcstigati ' >to
Board of Health under v ^V
to make sanitary inve-stit;.. ■ '^*;
which are in the cu.-itody oi the .■^taic HounJ of Health, arc not public record.-*, and therefore are not open to public in.spection.
3. Letters and Memornndn roreiv»H|
by Civil ."■^ervicf ('onniiix^inn in the Investigiitioii <•< Vi.r".i>i'<'«-« to Office in thi* ( ' In the perforni;in<'<' of •
by St. 1909, c. 4sr., $ 10. t
Commission shall make :i
the qualification.s of a non.
city of Boston, und« r ■:
with the consent of i ■
establish, such coniin
limited capacity und" r t
section alone, and tluy :ir
the general i)ri>»i~i""s n !
•ho
'V,
il. u>d
'•.tt l.y
I'-C,
646
IXDEX-DIGEST.
PUBLIC RECORDS — Continued.
in R. L., c. 19, and in the niles formulated
thereunder.
Letters and other memoranda received by the Ci\*il Sers-ice Commission in the course of the investigation pro\'ided for in St. 1909, c. 486, § 10, are not received, and are not required to be received, for filing within the meaning of R. L., c. 35, § 5, pro\'iding that the words "public records" shall mean "any written or printed book or paper, any map or plan of the commonwealth or of any county, city or town which is the property thereof and in or on which any entiy* has been made or is required to be made by law, or which any officer or employee of the commonwealth or of a county, city or town has received or is required to receive for filing;" and they are not, therefore, public records as therein de- fined.
A member of the Legislature has no greater right to inspect letters or papers which are in the possession of the commission but are not public records, than has any other member of the public.
4. Records of Public or Incorporated
Hospitals — Inspection . .581
Under the pro\-isions of St. 1905, c. 330, § 3, that the records of hospitals supported in whole or in part by contributions from the Commonwealth or from anj- municipalitj", and incorporated hospitals offering treatment to patients free of charge or conducted as public charities, "shall not be open to public inspec- tion until they are produced in court bj' the person ha^-ing the custody of the same," the superintendent or other officer in charge of such institution is not required or permitted to furnish any person with a copy of anj- part of such record.
PUBLIC RIGHTS — In Great Ponds —
Control and Regulation . . 302
See State Board of Health. 4.
RAILROAD — Foreign Corporation — Control of Stock and Bonds of Domestic Street Railway Com- panies . . . . .53 .See FoREiGX Corporatiox. 1.
Portland Terminal Company as a . 462
.See Savixgs Banks. 6.
REAL ESTATE — Corporation to buy
and sell ..... 195 See Corporatiox. 2.
Of Insane Person — Petition Guardian to sell — Notice See IxsAXE Persox. 2.
of
First Mortgage of — Authorized In- vestments for Sa^-ings Banks — Notes secured by a Mortgage of Real Estate to a Trust Company .... 256 See Savixgs Bax-ks. 3.
REBATE — Commission on Policy on Life of Officer or Agent of In- s\u"ance Companj' . . .47
See IxsT-RAXCE. 3.
RECEIVER — Of Street Railway Cor- poration — Returns to Local As- sessors . . . . .143 See Taxatiox. 3.
RECORD — Duty of Register of Deeds to receive and record Instrument in Foreign Language . . .241
See Register of Deeds.
REFERENDUM — Submitted to Qual- ified Voters of the Common- wealth 424
.See Coxstitutiox^al Law. 17.
In Great Ponds — Regulation and
Control — Cities and Towns . 448 See State Board of Health. 6.
PUBLIC SCHOOLS — Independent In- dustrial Schools in Cities and Towns to be Additional to Pubhc School System . . . 261
See Schools. 3.
" PUBLIC WORKS " — County Com- missioners — Contracts Notice . 9 .See CorxTT Commissioxers. 1.
QUARANTINE — Contagious Diseases
— Board of Health — Expense 137 .See Pauper. 4.
QUO WARRANTO .593
See Attorxet-Gexeral. 6.
REGISTER OP DEEDS — Duty to record Instrument in Foreign Language .... 241
A register of deeds is not by law required to
receive and record an instrument in a foreign
language, whether or not such instrument is
accompanied by a translation.
Official Bond
See Public Officer.
182
REGISTERED PHARMACIST — Pre- scription — Registered Physician — Place of Residence . . 50
A registered pharmacist may, under the pro- visions of St. 1906, c. 281, fill a prescription written by a registered physician practising medicine in the city or town where such registered pharmacist is engaged in business, ■without regard to the place of residence of such physician.
INDEX-DIGEST.
W7
REGISTERED PHARMACIST — Con- tinued.
'-■ Board of Registration in Pharmacy
— Intoxicating Liquor — Sale — Certificate . . . .50
A registered pharmacist who holds a certifi- cate issued by the Board of Registration in Pharmacy, under the pro\dsions of R. L., c. 100 § 23, and stating that such pharmacist is a proper person to be entrusted with a license to sell intoxicating Hquor, as pro^■ided in section 21, such certificate ha^-ing been issued before the passage of St. 1906, c. 281, authorizing registered pharmacists to sell without license int9xicating liquor upon prescriptions of registered physicians practising within the same city or town, under the conditions set forth in such chapter, must, before taking advantage of the pro^-isions of St. 1906, c. 281, receive a new certificate of fitness from such Board.
Conduct of Business — Attendance 92
See Pharmacy Law. 2.
Vendor of Intoxicating Liquors ■ Sixth-class License . See CrviL Service. 10.
461
REGISTERED PHYSICIAN — Pre- scription filled at Place of Business . . . . .50
See Registered PHAR^LiCIST. 1.
REGISTRATION — By Dealer in Au- tomobiles— Expiration . .116 See ArxoMOBiLEs. 3.
Of Hunters — Residence on Land
used exclusivelv for Agricultural Purposes . . . .206
See Hunters.
Certificate — Motor Vehicles owned
by f nited States Government . 318 .See Mass.^chcsetts Highw.^y Commission".
Certificate of, as Hunter — Sur- render on ConWction of Violation of Game Laws . . .514 See G.iME Laws.
REGULATION — Of Public Use of Sources of Water Supplj- — -Ar- tificial Reservoirs . . 364 See State Board of Health. 5.
RELIGIOUS SOCIETY, SCHOOL OR INSTITUTION — Appropria- tion of Public Funds for . . 153 See CoxsTiTUTioxAL Law. 2.
RESERVE — Of Trust Company — Time
Deposit 259
See Trust Compaxt. 3.
Ar-
RESIGNATION - Public Officer
• ccptance by Governor ,
See Public Officer. 1.
RESTAURANT - Establishment main- tainirii; Lunch R<x)m and Food Suit's R(M>ni — MtTruiitilo or ManufacturinK Establishment . 455 Sec L.vBuK Laws.
RESTRAINT OF TRADE - Acqui«-
lilJIl nf Stock .411.1 " ■ ' - ,1
Other Evidences of 1 of the Boston AM;, ^i
by the Boston Railruud lijiimg Company ... 233
See Boston Railroad Hildino
(OMPAXY. 1.
RETIREMENT — Of Veteran in Ser\-ice
of Commonwealth .119
See Commonwealth. 1.
Of Veteran in Ser\-ice of Common- wealth — Compensation . . 128
iS€€ CoMMOXWnE.tLTH. 2.
Of Veteran in Ser\-ice of Common- wealth — Compensation — Sal-
ar>- 141
See Commonwealth. 3.
Employees of <"
Teachers and I sachusetts .Agn See MASSACHistrrs TCRAL College. 2.
AuiUL
■ Employee of Commonwealth — Vet- eran ..... 494 See Commoxwe.\lth. 4.
RETURNS — Of Companies . the Transmission <«i ' by Electricity — Pii ■See Public Record.h.
122
Of Legislative Counsel and Agents —
Compensation .... 469 See Leoisl-vtive Cocksel ajco
Agexts.
RIOT — Or Other Disturbance of th.^ Public Peace — ('<iutity. < Town .Authorities — Dir Suitable .Aid — Sheriff — .\i . ^ ■■ — Selectmen — Precept — Dis- cretion -^l-' The public autli town, in cases of rioting or an"' "• use the utin control for t! presorv:r
.">inci- exists or:
under the proviai«>ii3 ui R. L.. c. JJ, J 11. suit- able aid in the prcsor>-ation of the peace, be
648
INDEX-DIGEST.
RIOT — Continued.
may iinder such circumstances call such assist- ance as a man of ordinarj- prudence, firmmess and acm-ity in his situation would think neces- sary to quell the existing or threatened dis- turbance.
In cases of existing or threatened rioting, the sheriff of a county, the mayor of a city or the selectmen of a town may issue a precept under the pro^-isions of St. 1908, c. 604, §§ 142-150, directed to any conrmander of a brigade, regiment, battaUon, corps of cadets, or company within his or their jurisdiction, requiring such commander to appear and aid the ci^-il authoritj- in suppressing violence and supporting the laws, the issuance of such pre- cept being governed by the exercise of the sound discretion, good judgment and honesty of piirpose of the sheriff or other local officer or officers in determining as a matter of fact whether or not the local police may be able to cope with the existing or threatened situ- ation.
Actual or Impending — Right of
Sheriff to require Assistance . 48S See Sheritf.
ROADWAYS — Controlled by Metro- poUtan Park Commission — Vio- lation of Rules and Regulations . 96 iSee Meteopoi-itax Park Com- mission". 2.
RULES AND REGULATIONS — For
Lse of Charles River . . 14
See Metropolitax Park Com-
MIS3IOX. 1.
Special Regulations for Automobiles
— Cities and Towns . . 26 See Automobiles. 1.
Special Regulations for Automobiles
— Cities and Towns — Posting . 78
See AlTTGMOBILES. 2.
Of MetropoUtan Park Commission —
Violation — Arrest — Warrant . 96 See Methopolitax Park Com-
MISSIOX. 2.
For Metropolitan Park PoHce . 165
See Metropolitax Park Com-
MISSIOX. 3.
SALARIES — Of Clerks of Court, County Commissioners and County Treasurer — Increased Population — Readjustment . 360 Further legislative authoritj- is required before a countj' treasurer maj- lawfully pay increased salaries to the clerks of the courts, the county commissioners and the countj' treasurer upon the basis of increased popula- tion as determined by St. 1904, c. 451, § 1.
SALARIES — Continued.
Justices and Clerks of District, Police
and Municipal Courts — Read- justment .... 3 See Courts.
SALE — Of Goods, "Wares and Merchan- dise made by Con-^-ict Labor in Prison — Regulation . . 495
See CoxSTiTUTioxAL Law. 20.
SANITATION AND VENTILATION
— Inspection of Buildings — Jurisdiction of Inspection De- partment of District PoHce . 192 See BuiLDixGS. 1.
SAVINGS BANKS — Legal Invest-
ments — Bonds of a RaHroad Corporation ha-\"ing no Com- pleted Roadbed . . .43 A railroad company incorporated in the State of Rhode Island and Pro^•idence Planta- tions, under an act containing the pro\-ision, among others, that if such company fails to complete the location, lay-out and construction of its railroad on or before May 15, 1909, the charter shall be void and of no effect, which has filed its location and acquired bj- con- demnation the land upon which to build its road, but has not otherwise complied with the conditions of its charter, and has constructed no phj-sical railroad, is not a railroad company whose road is located whoUy or in part in one of the New England States within the meaning of R. L., c. 113, § 26, cl. 3, par. b, which pro- ^•ides that sa\-ings banks may invest "in the first mortgage bonds of a railroad company incorporated in any of the New England states and whose road is located wholly or in part in the same."
2. Authorized Investments — Bonds,
Coupon Notes or Other E-\-i- dences of Indebtedness of the New York, New Haven & Hart- ford Railroad Company . . 183 Bonds, coupon notes or other evidences of indebtedness of the New York, New Haven & Hartford Railroad Company, a corporation* chartered by the laws of this Commonwealth, payable more than twelve months after the date of issue and issued prior to the passage of St. 1908, c. 620, in excess of the capital stock of such railroad corporation,, which do not fall within any of the exceptions set forth in St. 1906, c. 463, part II., § 66, are issued in "4'iolation of the provision of such section that "a railroad corporation, unless expressly au- thorized by its charter or by special law, shall not issue bonds, coupon notes or other e\a- dences of indebtedness payable at periods of more than twelve months after the date thereof to an amount which, including the amount of all such securities pre\'iou3lj' issued and outstanding, exceeds in the whole the amount of its capital stock at the time actuallj- paid in;" and such bonds, coupon notes or
INDEX-DIGEST.
040
SAVINGS BANKS — Continued. other e\'iQences of indebtedness not being "issued according to law," within the meaning of R. L., c. 113, § 26, cl. 3, h, are not legal investments for sa^•ings banks in this Common- wealth.
3. Authorized Investments — First
Mortgages of Real Estate — Notes secured by a Mortgage of Real Estate to a Trust Company 256 Notes secured by a mortgage of a tract of land with buildings thereon to a trust company as trustee, as security for an issue of notes made by the owners of the property, of which the notes in question are a part, are not a legal investment for savings banks, since they do not constitute an investment in "first mort- gages of real estate," within the pro\-isions of St. 190S, c. 590, §68, cl. 1, defining author- ized investments for sa\'ings banks in this Commonwealth.
4. National Bank or Trust Company
— Cormected Offices — Elevator
or Dumb-waiter . . . 264
A connection between a savings bank having an office upon the second floor of a building and a national bank or trust company upon the floor below by means of a small lift or dumb- waiter, is forbidden by the pro\-ision of St. 190S, c. 590, § 19, that "no sa%-ings bank shall occupy the same office or suite of offices with a national bank, trust company or other bank of discount, nor any office directly connected by means of doors or other openings in parti- tions with the office or suite of offices used or occupied by any such national bank, trust company or other bank of deposit."
5. Legal Investments — Street Rail- way Company — Bonds — Di^-i- dend equal to Five Per Cent, for Five Years — Returns — Nine Months ending June 30, 1910 — Board of Railroad Commissioners
— Certification . . • • 33S The Board of Raikoad Commissioners, under
the pro^-ision of St. 190S. c. 590, § 6S, sub- di%dsion fiifth. that deposits and the mcome derived therefrom may be invested by savings banks "in the bonds of any street railway companv . . . which has earned and paid in di-^-idends in cash an amount equal to at least five per cent, upon all its outstanding capital stock in each of the five years last preceding the certification by the board of railroad com- missioners hereinafter pro\-ided for;' and of St. 1909, c. 502, § 1. that the annual returns required bv law to be made to such Board shall be returns for the year ending on the thirtieth dav of June; and section 2, that such returns for' 1910 "shall cover the doings of street railwav companies ... for the preced- ing nine months only, and said period of nme months shall be deemed, under the pro%-isions of section sixtv-eight of chapter five hundred and ninetv of" the acts of the year mueteen
SAVINGS BANKS — r hundred and eight, sul^ as onp of the fivo vf»;'.r- but •'
at 1 capr
have bceii evifutxi aliij p.i.
said five years, shall not of nine months; an'. • • pany which shall h ■ dends in cash an . cent, upon all i each of the fi--
ception of said
included in the list to b-- mitted by the hnaH " transmit to tl the name of ;. has paid di\-i'i ending Sept. 30, luaJ, 5 ; ending Sept. 30, 1906. 1 respectively, and 2 t -•■■ 3 per cent, on pr> months ending on J'.
::^
of •>d
in- . vi-
;*r
■ in
be
■ :%»- •^4
for the nine
6. Legal Investment — Bond« of
Terminal Corporations — Rail- road 462
By providing in St. 190<;. r. riOO. j 68. cl. 3,
subdi\'ision a, that : « banks
and the income li' may be
invested "in the ! ... . .-:• i m
accordance with the laws o:
wealth, of a railroad cnrpnrtiti
therein, ... or in '
of a terminal corp< :
commonwealth," ;^-
of said § 6S>,
§ S, that such
therefrom ma> i>
gage bonds of a r-.i.
rated in any of th
railroad of w!
therein," the
the investmei
to the first n.
panics incorpv: The Porthma i
poration orpamzetl •.
of Maine fur th.
maintaining,
terminal in ti
izcd to acquir.
franchises, ri;:hts it i
railroad ror;"Tfl'!"r> \
designa;
such t< r
tables, .
engages in li
of pa^euptT
however. Ik-
corixjration"
c. 590. § 68, .
by St. 1909. c. 4J1. i ^. ■'
T-. • - ' v-_... ;.,T^,,M — Way
qvL.t.
650
INDEX-DIGEST.
SAVINGS DEPARTMENT — Of Trust Company — Member of Board of Investment as Endorser on Note for Money loaned by Cor- poration ..... 454 See Trust Compaxt. 4.
SCHOOL COMMITTEE — Authority to draw Orders directly on Town Treasury ....
See Schools. 1.
37
SCHOOL HOUSE — Erection of, in Pub- lic Park — Change of Use — Proprietary- Rights . . . 406
See CoxsTiTrxioxAL, Law. 16.
SCHOOLS — School Committee — Au- thority to draw Orders directlj' on Town Treasury^ — By-Law . 37 The school committee of a town may, in the performance of the duties imposed upon such committee bj' law, and for the purposes set forth in the statutes, make expenditures which such town is bound to pay, and for the pay- ment thereof may draw orders directly upon the town treasury-, notwithstanding a by-law of the town to the effect that the town treasurer shall not pay money upon orders other than orders drawn by the selectmen.
2. Public or Private — State Normal
Schools — Pupils — Street or Elevated Railway Companies — Special Rates . . . .75
Pupils in State normal schools are not en- titled to the benefits of R. L., c. 112, § 72, as amended by St. 1906, c. 479, pro-\-iding that "the rates of fare charged by street or elevated railway companies for the transportation of pupils of the public or private schools . . . shall not exceed one-half the regidar fare charged by such street or elevated railway company for the transportation of other pas- sengers."
3. Industrial Education — Independ- ent Industrial Schools — State Board of Education — - Public Schools — Cities and Towns . 261 The pro\'isions in sections 2 and 3 of chapter 505 of the Acts of 1906 for the establishment of independent industrial schools, for the maintenance of which the Commonwealth has in part to reimburse the municipalities by which such schools are established, do not create distinct classes of schools after estab- lishment, but rather prescribe methods by which such schools may be created, and con- template industrial schools, the establishment of which has been initiated and superintended by the Commission on Industrial Education, or by its successor, the State Board of Educa- tion, or has been pro\'ided for by the munic- ipality in which such school is located.
An independent industrial school, so estab- lished, must be in addition to, and not a part of, the pubUc school system of the city or town where such school is located.
SCHOOLS — Continued.
4. Independent Industrial Schools —
Non-resident Pupils — Tuition Fees — ^laintenance Fund — Disposition of Revenue — Cities and Towns — Money received from Fees for granting Licenses for the Sale of Intoxicating Liquor ..... 315 St. 1908, c. 572, § 4, which permits the at- tendance of non-resident pupils at an inde- pendent industrial school "upon payment by the city or town of his residence of such tuition fee as may be fixed by the" State Board of Education, authorizes such Board to establish a tuition fee for such attendance which in the view of the Board is fair and reasonable under all the circumstances of the case. Tuition fees received from non-resident pupils, and revenue arising from compensation for the work of pupils or from a sale of the products of an independent industrial school, should be ap- plied to the maintenance of such school.
Money received by a city or town from fees for the granting of liquor licenses and appro- priated to the maintenance fund of an inde- pendent industrial school is not "money raised by local taxation" or "money donated or con- tributed," within the meaning of St. 1906, c. 505, § 5, as amended bj- St. 1909, c. 540, providing that where "a city, town or district, either by moneys raised by local taxation or by moneys donated or contributed, has maintained an independent industrial school, the common- wealth, . . . shall pay ... to such cities, towns or districts a sum equal to one half the sum raised by local taxation," and no account should be made thereof in the reimbursement pro\-ided for in such section.
Right to Enter — State Inspectors of
Health — Cdntagious Diseases
— Boards of Health . . 196
See Boards of Health.
SEALERS OF WEIGHTS AND MEAS- URES.
.See Weights and Measures.
Heads of Departments — City
Charter of City of Boston . 296
See Civil Service. 6.
SECRETARY OF THE COMMON- WEALTH — History of Unit of Military Organization of Massa- chusetts Volunteers — Approval byProper Veteran Association — Purchase of Copies . . . 149
St. 1893, c. 413, § 1, as amended by St. 1899, c. 388, authorizing the purchase by the Secre- tarj' of the Commonwealth, subject to the re- strictions therein prescribed, of 500 copies of a history of any regiment, battery or other unit of military organization of Massachusetts Volun- teers, prepared and published "under the sanction and authority of its proper veteran association," permits the purchase of the des-
INDEX-DIGEST.
651
SECRETARY OF THE COMMON- WEALTH — Continued. ignated number of copies of such a publication sanctioned and approved by certain late officers of the organization appointed by the members thereof for the purpose, although no veteran association exists in connection with such organization.
SELECTMEN — Duty in Case of Riot or Other DisturlDance of the Public Peace — MiUtia — Precept — Discretion .... 515
See Riot.
SENATE — Authority to require Opinion of Attorney-General within Fixed
Time ■42-1
See Attorxey-Gexeral. 2.
SETTLEMENT.
See Pauper.
SHERIFF — Right to require Assistance in Case of Actual or Impending Riot, Tumult or Other Breach of the Peace — Citizen — Mihtia — Precept . . ._ . 488
Where there is imminent, impending danger of a riot or other breach of the peace, the sheriff of any county may call such aid as a man of ordinarj' prudence, firmness and ac- tivity in such situation might think necessary to quell such riot or disturbance; or where a tumult, riot or mob actually exists or is threat- ened he mav, under the pro\-ision3 of St. 190S, c. 604, § 142, issue a precept directing any commander of a brigade, regiment, battaUon, corps of cadets or company within his juris- diction "to appear at a time and place therein specified, to aid the ci\-il authority m sup- pressing such \-iolence and supporting the laws." , f 1.
If, however, no riot or other breach of the peace actually exists or is threatened, a sheriff has no authority to call upon citizens to act as patrolmen or to do ordinarj- poUce duty.
Duty in Case of Riot or Other Dis- turbance of the Public Peace — Suitable Aid — Militia — Pre- cept — Discretion . . • ^l** See Riot.
SIGNATURE — Of Governor, on Reg-
istered Bonds . . • .60
See Governor. 2.
SOLDIERS' HOME IN CHELSEA —
Charitable Corporatioa — Pur- poses of Incorporation — Soldiers and Sailors . .• • „ , • "lli
The charitable corporation called tne "Trustees of the Soldiers' Home in Massa- chusetts," created by the Pro^Tsions of M. 1S77 c -nS, for the purpose of estabhshing and 'maintaining in the city of Chelsea a home "for deser^-ing soldiers and sailors and such members of their families as said trustees
SOLDIERS' HOME IN CHELSKA —
Continuril. may deem to tx* i)ropcr," m-.iv r. •!■,.• i;i home or institution any d<-- • sailor, who has served in the '■: or naval forces either of the . ..,1,.:. of the United States: and the tr templated by St. 190S, c. l'.»<.>. § that "all real and personal <•-• trustees shall revert to th when the purpose for which t;. incorporated shall have been ac may not be made upon failure to i; for the institution who have served m ;!.• war of the rebellion.
SPECIAL ELECTION — Precept of Gov-
ernnr . . . . .
.Sk Ele<tiiin" Laws. 1.
457
SPRINGFIELD STREET RAILWAY COMPANY — Owncr-iup iind Control by New Vcirk, New Haven & Hurtturd Railroad Company — Decree of Supreme Judicial Court — Compliance 471 See New York, New H.wen & H.VRTFORD Railroad Company.
STANDING WOOD AND TIMBER —
Taxutimi — .\ni('nilni'-iit tn (uti- slitutiou Relative to Taxation of Wild or Forest Lands .531
See CoN-STiTUTioxAL Law. 24.
STATE BOARD OF CHARITY-
Minor Child — Rcliiiioiis l:in)!
— Adoption — Discharge . St. 1905, c. 464, § 1, which in part jr that " No minor child in the care, or un ; supervision of any state board of charity^r oj any state commission, or stat*" hoard of trustees, shall be denic<l the fr of the religion of his parents . . affect the authority of the >' i Charity in its discretion to ; child committed to its custo-i of adopted parents, if i* • ■ that the .ibjccts of th.- accomplished and th 1 child will be best ser notwithstanding that such adopted parents ^'■■■- '■ natural parents of such child.
STATE BOARD OF EDUCATION -
IiatiiitiMii ..1 l.i.i.-iH-iul.'Ut In- dustrial Schools See Schools. 3.
STATE BOARD OF HEALTH ^ < ' .n-
Pnwers with Lo<:>! i: >r : "f
Health — Cities an Under R. I- . -• '^- * ** that "if s' or infection health exist.- -.
Ml
652
INDEX-DIGEST.
STATE BOARD OF HEALTH — Con- tinued, within the Commonwealth," the State Board of Health shall make an investigation thereof and "shall have co-ordinate powers as a board of health in every city and town, with the board of health thereof ..." the exercise of such co-ordinate powers by the State Board of Health is confined to places throughout the Commonwealth where contagious diseases exist or seem likely to exist.
2. Nuisance — Jurisdiction — Abate- ment of Nuisance — Pending Complaint to Local Board of Health and Bill of Complaint in Superior Court . . .85
The State Board of Health may, under the provisions of R. L., c. 75, § 109, entertain an application or complaint alleging that a cor- poration engaged in the manufacture of cement is maintaining a nuisance upon its premises, and may investigate the conditions attending such manufacture upon such premises, not- withstanding that such corporation was authorized by the local authorities to engage in and carry on the business of manufacturing cement at such place, and notwithstanding that a bill of complaint of the same tenor was filed by the petitioner and is now pending before the Superior Court, and that a like complaint has been presented to the local board of health, upon which such board has not yet acted.
3. Proprietary or Patent Medicines
— Label — Fractional Part of Original Package — Prosecution
— Public Notice . . . 180 St. 1906, c. 386, as amended by St. 1907,
c. 259, providing in section 1 that "upon every package, bottle or other receptacle holding any proprietary or patent medicine . . . shall be marked or inscribed a statement on the label of the quantity or proportion of each of said substances contained therein," requires that the container of fractional parts sold from the original package by prescription shall be also marked with the prescribed label.
The provision of St. 1906, c. 386, § 6, as amended by St. 1907, c. 259, that the State Board of Health shall not cause the prosecu- tion of persons violating the provisions of such act "for the sale at retail or for the gift or exchange of any patent or proprietary medicine or food preparation containing any drug or preparation the sale of which is pro- hibited or restricted as aforesaid," until after public notice, is not applicable to sales of unlabeled quantities.
4. Water Supply — Great Ponds —
Control and Regulation — Wright's Pond and Ashley's Pond in the City of Holj^oke — Regulation of Public Rights . 302 The State Board of Health, under the pro- visions of R. L., c. 75, § 112, and § 113 as
STATE BOARD OP HEALTH — Con-
tinued. amended by St. 1907, c. 407, vesting in such board the "oversight and care of all inland waters and of all streams and ponds used by any city, town or public institution . . . as sources of water supply," and pro\iding that it may regulate and control the exercise of the public rights of fishing, boating, skating or taking ice, and may delegate the power of granting or witholding permits to the local authority, — may regulate the exercise of such public rights on Wright's Pond and Ashley's Pond in the city of Holyoke, used by said city as a source of water supply under the provisions of St. 1872, c. 62, provided such regulation or prohibition is reasonably necessary to secure the sanitary protection thereof.
5. Sources of Water Supply — Reg- ulation — Artificial Reservoirs — Boating and Fishing . .364
R. L., c. 75, § 133, as amended by St. 1907, c. 467, § 1, providing in part that the State Board of Health "may make rules and regula- tions to prevent the pollution and to secure the sanitary protection of all such waters as are used as sources of water supply," and "may delegate the granting and withholding of any permit required by such rules or regu- lations to state boards and commissions and to selectmen in towns and to boards of health, water boards and water commissioners in cities and towns, to be exercised by such selectmen, boards and commissions . . . ; and upon complaint of any person interested said board shall investigate the granting or witholding of any such permit and make such orders relative thereto as it may deem necessary for the protection of the public health," does not authorize the State Board of Health, upon petition of certain inhabitants of a town requesting such Board to cause suitable rules and regulations to permit fishing in certain reservoirs artificially con- structed and now owned and used as a source of water supply by such town, to require the water and sewer board thereof to issue per- mits for fishing, since the regulation of boating or fishing or of any use of such reservoirs which does not directly relate to the preserva- tion of the purity thereof is for such town to establish.
0. Water Supply — Great Ponds —
Control and Regulation — Public . Rights — Cities and Towns . 448 Under the provisions of R. L., c. 75, §§ 112 and 113, as amended by St. 1907, c. 467, vesting in the State Board of Health the "oversight and care of all inland waters and of all streams and ponds used by any city, town or public institution ... as sources of water supply," and providing that it may regulate and control the exercise of the public rights of boating, fishing, skating or taking ice, and may delegate the power of granting or withholding
INDEX-DIGEST.
653
STATE BOARD OF HEALTH — Con-
tinned. permits to the local authorities, "and upon complaint of any person interested . . . shall investigate the granting or withholding of any such permit and make such orders relative thereto as it may deem necessary for the protection of the public health," a city or town may prohibit the public right of boating or fishing upon a great pond used as a source of water supply only in cases where such pro- hibition is necessarily involved in the use of such great pond as a source of water supply, and where complaint is made with respect to the granting or %\dthholding of a permit by the local authorities, if such board considers that the issuance of the permit so withheld would not endanger the purity of the source of water supply, it may make such order in the premises as it deems necessary for the protection of the public health, and may doubtless require the issuance of the permit.
Letters and Reports in Custodj' of —
Public Records . . .136
See Public Records. 2.
Food and Drug Inspectors — Wit- ness Fees and Allowances for Travel 292
See Fees.
STATE FORESTER — Co-operation with Private Individuals in De- struction of Gypsy and Brown- tail Moths . . . .536 See Gypst and Brown-tail Moths. 2.
STATE HIGHWAY — Massachusetts Highway Commission — Tele- graph, Telephone and Electric Light Poles — Original Loca- tions . . . • .59 The Massachusetts Highway Commission have no jurisdiction to grant original locations for telephone, telegraph or electric light poles independently of the local board, which, under the provisions of St. 1906, c. 117, are con- stituted the tribunals for that purpose.
2. Alteration of Location — Abandon- ment .... '..^V^ A portion of an existing State highway which, under a proposed plan for alteration of location under R. L.. c. 47, §§ 7 and 8, does not fall within the limits of such highway as established by such alteration, may be abandoned.
3. Defect or Want of Repair — Lia- bility of Commonwealth — Con- struction or Repair — Use of Liquid Asphalt — Damage . 174
By the provision of R. L.. c. 47, § 13, that "the commonwealth shall be liable for injuries sustained by persons while traveling on state highways in the manner and subject to the
STATE HIGHWAY — Continurd. limitations, oonditiuiis mid n -^trirtionii pro- vided in sections figlitocn, (wcniy m.! m. •.t\. one of chapter fifty-one, except th the injury shall be (riven to a nn i commission or to its sccrotury," w i: is imposed upon the Commonwealth f(.r ages to the per.«nn or property of u tr , - upon a State highway other than for da:, caused V>y reason of a defect or a w;.: repair or of a sufficient railing in or ui>oi. . highway. To constitute such {lefcoi or ■• of repair there must be soniethinR in fli.- dition of the highway, either \n defective construction or waul of i the nature of an obstruction, whid. ous to the safety of the person or i.i. ■, of the traveler; and where the prop< r: such traveler upon a i>tate highway is duin.iK.^i by splashes of liquid asphalt used in connection with the construction or repair of such high- way, the statute above cited affords no remedy.
4. Opening — City or Town — Water
Works — Servdce Pipes . . 242
The water commissioners of a town arc not authorized, without the i)erniission of the Massachusetts Highway Coniniission, as re- quired by R. L., c. 47, § 11, to oi>cii a State highway for the purpose of la>'ing wrvice pi|x*s therein, under an act providing that, in the
construction and maintenance of stii* ' ' • r
works for the use of such town, th' and maintain aqueducts, conduit-. i
other works under and over . . . public and other ways" in such town.
STATE HIGHWAYS — Rules and Regu- lations — \iolation — Arrest —
Warrant 00
See Metropolitan Park Com- mission. 2.
STATE HOUSE — Persons employctl at
— Vacations . . .413
See Labor. 6.
STATE INSTITUTION — Trustooa
Sale of I. ami to Institution ut a Profit ^"S
See MA88ACHV8ETT8 AORICl'I/- TL"RAL CoLLKCK. 1.
STATE NORMAL SCHOOLS — Street
and Elevated Uailway Compa- nies — Special Uatos to Pupils . 75 .Sec Schools. 2.
STATUTE — Acceptance — Approved by Majority of (^ualifitHl Votcm of Coninionwcalth • ,-,.?*
So much of Senate Hill No " < ..nM.l An Act to fi-x the punishment murder," as purports to pro-.
shall take effect when approv.-i i.\ :»■....;
of the voters of the Commonwealth, w uncon- stitutional.
654
INDEX-DIGEST.
STATUTE — Continued.
2. Presumption of Lawful Passage —
Administrative Officers . . 415
The presumption arising from the proper custody and due authentication of an act of the Legislature that such act was passed in accordance with the requirements of the Con- stitution, should be regarded as binding upon administrative officers, and such act should be regarded by them as having "the force of a law."
Effect of Retroactive Statute on De- rivative Settlement . . .67 See Pauper. 1.
Effect of Retroactive Statute —
Settlement . . . .84
See Pauper. 2.
Acceptance — Hours of Labor —
Cities and Towns . . . 567
See Labor. 8.
General and Particular — Repeal —
City Charter of City of Boston . 296 See Civil Service. 6.
General and Particular — Appoint- ment of Superintendent of Streets in City of Marlborough . . 593 See Attorney-General. 6.
STEAM BOILER — Operation by Un- licensed Person . . . 524 See License. 3.
Inspection by Insurance Companies
— Certificate .... 585 See Insurance. 9.
STEAM ENGINE — Operation by Un- licensed Person . . . 524 See License. 3.
STOCK — Of Domestic Street Railway Company — Acquisition of, by Foreign Railroad Corporation See Foreign Corporation. 1.
53
Of Boston & Maine Railroad — Ac- quisition by Boston Railroad Holding Company — Restraint of Trade . . . .233 See Boston Railroad Holding Company. 1.
STREET RAILWAYS — Issue of Bonds — Board of Railroad Commis- sioners — Approval — Sale at Less than Par Value . . 329
The provision of St. 1906, c. 463, Part III., § 103, that for the purposes therein specified a street railway company "may . . . increase its capital stock or issue bonds, ... to such an amount, ... as the board of railroad commissioners shall determine will realize the amount which has been properly expended or will be properly required . . . for such of the
STREET RAILWAYS — Continued. purposes aforesaid as are set out in its petition to said board," authorizes the Board of Rail- road Commissioners to approve an issue of bonds and the sale thereof by a street railway company at less than par value, provided that the price realized by such sale furnishes a fair and reasonable equi\'alent for the securities so disposed of.
The Board of Railroad Commissioners, hav- ing acted upon the petition of a street railway company and determined the amount of bonds which, if sold at par, would realize the amount properly expended or properly required, as set forth in the petition, upon a subsequent petition may take into consideration the fact that the petitioner has been unable to dispose of the bonds so authorized at par, and may approve a further issue of bonds for the same purpose in order to meet the deficit so created.
St. 1910, c. 536, amending St. 1906, c. 463, Part III., § 103, and pro\'iding that the Board of Railroad Commissioners, in authorizing an issue of bonds under section 103, "may pre- scribe the minimum price at which such bonds shall be sold, and may modify such price from time to time," and where the minimum price so established is less than par, may provide for the establishment of a sinking fund which at the maturity of the bonds will amount to the difference between the selling price and the par value thereof, is applicable to a petition pend- ing at the time of its passage.
2. Free Transportation of Letter Car- riers in Uniform — Constitutional Law — Safety, Health or Proper Convenience of the Public . 388
A statute requiring street railway companies to carry free on their passenger cars United States letter carriers in uniform in the city or town in which such letter' carriers are employed, does not tend to promote the safety, health or proper convenience of the public, but is an arbitrary enactment in favor of the persons designated, letter carriers in uniform, and, as such, is unconstitutional and void.
Acquisition of Stock and Bonds of,
by Foreign Railroad Corporation
— Control . . . .53 See Foreign Corporation. 1.
Special Rates to Pupils of State
Normal Schools . . .75
See Schools. 2.
Taxation — Receiver — Liability for
Tax 143
See Taxation. 3.
Bonds of — Legal Investment for
Sa\angs Bank — Dividend Equal to Five Per Cent, for Five Years
— Returns including Nine Months, ending June 30, 1910 — Certification by Board of Rail- road Commissioners . . . 338 See Savings Banks. 5.
INDEX-DIGEST.
055
STREET RAILWAYS — Continued.
Rates — Constitutional Law . . 396
See Boston Elevated Railway
Company. 1.
Holding Company incorporated to
acquire Stock of Domestic Street Railway, Gas and Electric Light Corporations . . . .417
See Corporation. 4.
Ownership and Control by Railroad
Corporation . . . .471
See New York, New Haven & Hartford R.^ilroad Company.
SUITABLE PERSON — Keeper of Hos- pital for Insane and Feeble- minded — Resident or Consult- ing Physician .... 359 See License. 2.
Keeper of Hospital for Insane and
Feeble-minded Persons — Part- nership ..... 563
See License. 4.
SUNDAY — Action of Governor on Bills and Resolves within Five Days — Constitutional Law . .414
See Governor. 5.
SUPERINTENDENT OF STREETS —
Appointment of, iu City of Marl- borough ..... 593 See Attorney-General. 6.
SUPREME JUDICIAL COURT — De- cree of, respecting Ownership and Control, by New York, New Ha- ven & Hartford Railroad Com- pany, of Springfield Street Rail- way Company — Compliance . 471 See New York, New Haven & Hartford R.ulroad Company.
SURETY — On Official Bond — Wife of
Principal . • • -260
See Bond.
SURPLUS — Of Trust Company — Loan
to Single Individual . . .69
See Trlst CoMPANT^. 1.
TAX — Income . . _ . 267
See Constitutional Law. o.
TAXATION — Corporate Bonds — Mort- gage — Value of Bonds in Excess Sf Value of Mortgaged Real Es- tate . • , ^- \t The bonds of the New England Cotton \ am Company, amounting to 85,206,000 par value, are taxable to the holders thereof upon the excess of the amount outstanding over the assessed value, to ^\-it. 82.105,575, of the real estate mortgaged to secure such bonds.
TAXATION — Conlinufd.
2. Exemption — •* FiirniinR I tiiisila"
— Person .60
Under the provi.sionti of R. L., r. 1.' ( .', cl. 11, excmptinK from taxation, an specified articles of propi-rty. thi- utensils of evcr>* iktsoh," such • should in general bo confiiied to ii: tools and uten.-sils used by any |mt- pursuit of agriculture.
As used in such statute, the word "person" does not include a corporation.
3. Street Railway Corporation —
Receiver — Returns to I>>cal Assessors — Liabilitv for Tax. 143 St. 1906, c. 4C3, Part IIL, § i:W, rcHjuiring a street railway corporation to make a return to the board of as.sessor!> of ev<T>- '•i'v and town of the anK)unt of ji ' ' r tin-
year ending on the prec^ '-ni-
ber, and of the length <•: f'-
quires a street railway comp.Uij u. ; return, notwithstanding s'uch con
gone into the hands of a r- ' ■ . .; ■
franchises and property havi ,'nor
to September 30, undi-r tli' - <>'
St. 1906, c. 463, Part III., § 111, corporation, organized for the i owning and operating such road; :i: provided for by section 134 of Pari 111. ui such statute may be assessed ui)on it ami may be collected from the purchajiing company.
4. Excise Tax on Expre.s.« P.>i-iii.-- on
Any Railroad, Rail
boat or Vessel in tl
wealth — Conipufai:
Earnings within il
Value of Capital. P.
funded Debt — D<
Stocks, Securities m
tate out^i'i" ' '•■■".
used in F. In St. 1907. c. .>■ c. 194, and St. r.Kis, r. <■. tax upon all person.-^, (••"■ or associations doin;{ an ■ any railroad, railway. ' the Commonwealth, and : that such tax shall l>f 'o- ■ •• value of such proportion oJ his or bonds and 111/11:1!") 'l'"''^ . . . n« earning.s of t! ship or asson
or its total ni-
earnings . . . within tii<- "t"'
ings within the SfMto fr.m. im
and such cai
deterniining ^,^|
In deterniii bonds and unluii>i»>i .i' pany, partncr.xhip or express business on n steaml>oat or ves,'«ol v wealth for the pun)o.He « :
tax proWded for under in.- "■;''.' "■^:_u_ cited; property con.-^.st.ng of stock». sccunuw
656
INDEX-DIGEST.
TAXATION — Continued. and real estate outside the Commonwealth and not used in the express business should be deducted from the total value of the capital, bonds and unfunded debt.
5. Exemption — Woodland used for
Educational Purposes — For- estry 247
A tract of woodland, acquired and used by Harvard University for the purpose of in- struction in forestry, is owned and occupied for educational purposes, and is therefore exempt from taxation, under the provisions of R. L., c. 12, § 5, cl. 3, which exempt from taxation real estate owned and occupied by literary, charitable and scientific institutions for the purpose for which such institutions are incorporated.
6. Business Corporation — Deduc- tions — Stocks and Bonds sub- ject to Taxation if owned by a Natural Person Resident in this Commonwealth . . . 249
In the assessment of the franchise tax upon a business corporation under St. 1903, c. 437, or St. 1909, c. 490, part III., the value of stocks and bonds which would be subject to taxation if owned by a natural person in this Common- wealth should not be deducted from the value of the corporate franchise.
7. Property omitted from Annual
Assessment — Removal of Tax- payer from the Commonwealth, 266 Under the provisions of St. 1909, c. 490, part I., § 85, an assessment of taxes upon property omitted from the annual assessment may be made, although the person assessed has removed from the Commonwealth prior to December 15.
8. Domestic Corporation — Mini- mum Limit of Tax — Local Taxation — Deductions — Mort- gage on Real Estate . . . 335 In determining the minimum limit of tax upon a domestic corporation under the provi- sions of St. 1909, c. 490, Part III., § 43, that "the total amount of tax to be paid by such corporation in any year upon its property locally taxed in this commonwealth and upon the value of its corporate franchise shall amount to not less than one tenth of one per cent of the market value of its capital stock at the time of said assessment as found by the tax commissioner," a mortgage on real estate taxable as real estate to the mortgagor, and held by a domestic corporation, is not included within "its property locally taxed in this commonwealth," and the tax paid by the mortgagor on such real estate may not be used to reduce the amount of the franchise tax to be paid by the corporation holding such mortgage.
TAXATION — Continued. 9. National Banks — Tax on De- posits — Constitutional Law . 409
A proposed bill, in substance imposing upon all or certain of the deposits in national banks within the Commonwealth an annual tax of not more than one-half of one per cent., if enacted, would be unconstitutional as a tax upon the property of the depositors or upon the property of the bank because it is not proportional within requirement of the Consti- tution of Massachusetts, Part II., c. 1, § 1, Art. IV., that taxes levied upon property must be "proportional and reasonable."
Such a bill would also be unconstitutional as a tax upon the property of the bank because it is in conflict with Revised Statutes of the United States, § 5219, which restricts the power of a State to tax national banks to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank.
As an excise upon the privileges of the depositors, such bill would be unconstitutional because the mere right to take and hold prop- erty cannot be made the subject of an excise tax; and as an excise upon any privileges of the bank, it would be unconstitutional because it would be in conflict with the provisions of Revised Statues of the United States, § 5219, above cited.
10. Bonds of Domestic Electric Light
Corporation secured by Mort- gage on Real Estate and Personal Property — Exemption . .431
The bonds of a domestic electric light cor- poration secured by a mortgage of real estate within the Commonwealth and of personal property are not exempt from taxation under the provisions of St. 1909, c. 490, Part I., § 4, cl. 2, that personal estate, for the purpose of taxation, shall not include "any loan on mortage of real estate, taxable as real estate, except the excess of such loan above the as- sessed value of the mortgaged real estate."
By Cities and Towns, to defray Cost
of harvesting and selling Ice . 109 See Cities and Towns. 2.
Public Purpose — Appropriation for
Society, School or Institution under Sectarian Control . . 153
See Constitutional Law. 2.
Excise — Boston Railroad Holding
Company — Exemption of Bonds from Local Taxation . . 280
See Boston Railroad Holding Company. 2.
Uniform Rate upon All Personal Es- tate within the Commonwealth 294 See Constitutional Law. S.
Income Tax . . . .
See Constitutional Law'.
299
INDEX-DIGEST.
657
TAXATION — Continued.
Money raised by — Expenditure for
Construction of Hishways to re- lieve Persons out of Employment in Times of Industrial Distress — Public Purpose See Constitutional Law. 10.
305
■Appropriation of Money raised by, for the Museum of Fine Arts — Public Purpose . . . 380
See Constitutional Law. 13.
• Exemption of Land acquired bj' In- stitution for Care of Insane See Constitutional Law. 15.
384
T Appropriation of Public Funds raised
by — Relief of Destitute Fami- lies of Striking Employees — Public Purpose . . . 486
See Constitutional Law. 18.
Of Wild or Forest Lands — Amend- ment to Constitution — Stand- ing Wood and Timber . .531 See Constitutional Law. 24.
TAXES — Money borrowed in Anticipa- tion of — Limit of Authority to issue Notes in Payment . . 327
See Cities and Towns. 3.
TELEGRAPH COMPANY — Premises
of — Mercantile Establishment . 412 See Mercantile Establishment.
TERMINAL CORPORATION — Bonds
of — Lemd Investment for Sav- ings Banks . . . .462 See Savings Banks. 6.
TEXTILE GOODS — Manufacturing Establishment — Employment of Minors or Women — Knitting . 126 A manufacturing establishment in which goods are made by the process of knitting is an establishment "engaged in the manufacture of textile goods," within the meaning of R. L., c. 106, § 27, as amended by St. 1907, c. 267, providing that " No person and no agent or officer of a person or corporation engaged in the manufacture of textile goods shall employ any minor under eighteen years of age or any woman, before six o'clock in the morning or after six o'clock in the evening."
THEATRE TICKETS — Sale of — Reg- ulation— Police Power . .491 See Constitutional Law. 19.
TIDE WATER — Cities and Towns —
License — Fish Trap . .18
A fish trap cannot be lawfully maintained in tide water without a license, as rc(4uired by R. L., c. 91, § 116, from the selectmen of the town, or mayor and lioard of aldermen of the city, within which such fish trap is located.
TIME DEPOSIT — Rcseno of Trust
Company .... 259
Sec TnusT Compavy. a.
TOWNS — Assessors — Term of Office . 337 Since St. 1907, c. 579, ( I, iir.viiii,^ i„ ,,ftrl
that "each as.sps.sor in oven.' ■ • n in
the common wealth . . . ahull l or
appointed for the term '>f I'l . ."
took effect on Jan. 1, I'.ti .^^
which may choo.se us*- ..•-, aa pro\'ided in St. 1907, c. .V.n, j .s, i.
2. Issue of Notes — Demand Notes
— Time of Payment — Town Treasurer .... 342
St. 1910. c. 616, S 1, prnvi'- - •' ■ '. note issued by a town shall when it shall become du'- f' r R. L., c. 27, § 6, providiii ■ pation of taxes shall "1
year after the date of tin .: .. ;
prohibit the issue by the town of a note payable on demand.
A town note may not, under the proviMona of St. 1910, c. 610, § 1, be made payable to the town treasurer.
3. Water Supply — Indebtcdneas —
Vote — Two-thirds M---^"'- 422 A town which accepts by a : ■• an
act authorizing it to supply i - i'l-
habitants with water, in incur: must comply with the pri)\ c. 27, § 8, requirinK a two-tlur r
that it may incur debt for such puri>i>«i.
4. Note Payable "during the Year
1912" — Date of Pjiynicnf . '>2:i
A note of a town payable "\vi»!iiii •'• v. ir 1912" is in effect a note pay date certain, or earlier at ti maker, and therefore doo.s i the requirement of St. 1910, a town note shall state "the i become due for payment."
5. Indebtedness for Water Supply —
Vot« . • V, • J'!^ A town which hm iwv»<»ptAd by a two-thirda
vote an act author! ' ' ' " " •
inhaliitants with w therefor only by c ■ of R. L., c. 27, § s. w;.. two-thirds of the vot4r at a town meeting to au;.. debtedness for such purpose.
6. Notes — (■
of liurcu :
to authori..
Debt "ujMin i
.\ct !iiithori>!iii The vote -' on March 1, 1 selectmen in :
such town to rt'iuaJ lU uibi, an . the selectmen "to refund sajd U«i
of mi
578
658
INDEX-DIGEST.
TOWNS — Continued.
passage of an act of the Legislature author- izing the same," does not constitute a valid acceptance of the authority to refund the debt in question, conferred by a statute passed on March 28 following, and the Director of the Bureau of Statistics should not certify notes issued in accordance with such vote.
School Committee — Authority to
draw Orders directly on Town Treasury . . . .37
See Schools. 1.
TOWN TREASURER — Note Payable to 342
See Towns. 2.
TRANSFER — Of Bonds of Common- wealth 104
See Treasurer and Receiver- General.
TRAVEL — Allowances for Employees
of Commonwealth . . . 292
See Fees.
TREASURER AND RECEIVER- GENERAL — Bonds of Com- monwealth — Issue — Transfer to Executor or Administrator . 104 The Treasurer and Receiver-General, under R. L., c. 6, § 74, which provides "that the treasurer may . . . issue in substitution for mutilated, defaced or indorsed bonds presented to him other bonds of like or equivalent issues," may, at the request of an executor or administrator, transfer to such executor or administrator in his individual capacity bonds issued by the Commonwealth to a decedent or to the executor or administrator of a de- cedent, provided that in the case of an ex- ecutor there is nothing in the will restricting his general authority in the premises.
TRUANT OFFICER — Public Office —
Woman • — Constitutional Law . 444 Under existing statutes a woman may not be appointed to or exercise the duties of the office of truant officer, as established by R. L., c. 46, § 12, although there appears to be no con- stitutional objection thereto.
TRUST COMPANY — Loan to Single
Individual — "Surplus" . . 69
A trust company, subject to the provisions of R. L., c. 116, § 34, may not legally loan money to a single individual in excess of one- fifth of its surplus accounts and paid-up capital, excluding the profit and loss account.
2. Branch Office — Citv or Town . 131
St. 1902, c. 355, § 2, providing that the Board of Commissioners of Savings Banks might authorize any trust company to maintain "a branch office in the city or town in which its main office is located," does not permit the authorization of more than one branch office in such city or town.
TRUST COMPANY — Continued.
3. Reserve — Time Deposit . . 259
An agreement in writing, payable thirty days after demand or notice, is a time deposit payable at a stated time, within the meaning of St. 1908, c. 520, § 8, which provides that "every trust company . . . shall at all times have on hand as a reserve an amount equal to at least fifteen per cent of the aggregate amount of its deposits, exclusive of savings deposits and of time deposits represented by certificates or agreements in writing and pay- able only at a stated time."
4. Savings Department — Board of
Investment — Member as En- dorser on Note for Money loaned by Corporation . . 454
Under the provisions of St. 1908, c. 520, § 2, that all loans or investments of deposits in the savings department of a trust company "shall be made in accordance with statutes governing the investment of deposits in sa\'ings banks," and of St. 1908, c. 590, § 44, that no member of a board of investment of a savings bank shall borrow or use any portion of the funds of such bank or "be surety for loans to others or, directly or indirectly ... be an obligor for money borrowed of the corporation," a member of the board of investment of a trust companj^ cannot legally be an endorser upon a personal note for money loaned by such company to any person.
5. Savings Department Payment —
of Fixed Di%'idend requiring Transfer of Funds from General Banking Fund of Companv . 574
The provision of St. 1908, c. 520, § 3, that the accounts of the savings department of a trust company "shall be kept separate and distinct from the general business of the corpo- ration," prohibits the promise of a fixed divi- dend or rate of interest upon money deposited in the savings department of a trust company, which for its maintenance requires a transfer of funds from the general banking department of the company to the savings department.
Savings Bank — Connecting Offices
— Elevator or Dumb-waiter . 264 See Savings Banks. 4.
TRUSTEES — Of State Institution — Sale
of Land to Institution at a Profit 308 See Massachusetts Agricul- tural College. 1.
Of Westborough State Hospital —
Appointment of Officers — Com- pensation . . . .313 <See Westborough State Hos-
Of Lyman and Industrial Schools —
Lyman Fund — Purchase of Land
— Title 452
See Lyman and Industrial Schools.
INDEX-DIGEST.
059
TUBERCULOSIS — Sale of Meat from
Carcasses of Cattle infected with 208 See Animals.
TUBERCULOSIS HOSPITAL — Main- tenance of Ward or Beds in Pri- vate Hospital or General City or Town Hospital — Subsidy from Commonwealtli . . . 459
See Cities and Towns. 4.
TUMULT — Right of Sheriff to require
Assistance .... 4SS
See Sheriff.
" UNFAIR DISCRIMINATION " —
Lowering of Prices in One Lo- calitj' by a Person, Firm, Asso- ciation or Corporation engaged in Business in Several Localities 526 See Constitutional Law. 23.
UNIFORM RATE — Of Taxation upon Personal Property within the Commonwealth . . . 294
See Constitutional Law. 8.
UNITED STATES — Motor Vehicles owned by — Registration — Fees . . . • • 318
See Massachusetts Highway Commission.
USUAL PLACE OF BUSINESS — Of
Foreign Corporation . . 187
See Foreign Corporation. 3.
Of Foreign Corporation — Executive
Officers within the Common- wealth . . . • • 255 See Foreign Corporation. 4.
VACANCY — In Office of Master in Chancery — Removal from
County 186
See Governor. 3.
VACATIONS — Of Persons employed at
State House . . • .413
See Labor. 6.
VENDOR — Of Intoxicating Liquors . 105 See Civil Service. 1.
Of Intoxicating Liquors — Drug- gists' Sixth-class License . .401 See Civil Service. 10.
VETERAN — Commissioned Officer
Gratuity — Attorney — Fee . 5bi St 1912 c 702, which in section 1 provides for a gratuity of $125 ''for those veteran soldiers and sailors who vo unteered their ser^- ices in the civil ^'ar/ and in section 2 provdcs that such gratuity "shall be paid to c^ery person or his legal representatives ..v, ho served in the army or navy of the Umtcd States to the credit of the commonwealth
VETERAN — Continued.
duriiii; tlio civil wur, . . sioned officers n.s well us i The Coniniis-sioii on Cii by section 3 of St. 1912. c. 7w., to make or to secure payment • scribed by section 0 to any utt. person entitled thereto for the pr
w lull « ronimi«-
d>lt«h«d
■lltl"Ii <il M
claim for a gratuity under such »Uitutc.
In Service of Commonwealth — R«?-
tirement . .119
See Commonwealth. 1.
In Service of Commonwealth — Re- tirement — Componajition . 128 See Commonwealth. 2.
In Service of Commonwealth — R«^-
tirement — Compensation . 141
See Commonwealth. 3.
Employee of Commonwealth — Re- tirement — Consent i'Ji See Commonwealth. 4.
VETERINARIAN .368
.s.t ('i\ 11- Service. 9.
VETERINARY INSPECTOR . 368
VETERINARY MEDICAL INSPEC- TOR 3r>s
Sec Civil Service. 9.
VETO — Duty of Executive — Return of Bill or Resolve — Limit of
Time 5o2
Sec Governor. 7.
VOLUNTEERS — History- of Unit of .Military Organization of — A|>-
j.roval " 1*9
Sic Seckktakv or the Com- monwealth.
VOTE — Of Town to incur Indobt45dnc«
for Water Supply ^"
See Towns. 3.
Of Town inrurrinn Indebt«d»e*.H fur
Water Supply . . • •
See Towns. 5.
To authorize Selectmen to rrfund
Debt "upon the Pii-»«»«e «».»'» Act ttutlmrizinK the Snme
Note
See Towns. 0.
VOTERS ' '
.s..'l
VOTING CONTEST
See Lottkuy.
^uU-
£65
578
4Q7
.^8;2
660
INDEX-DIGEST,
\
VOTING MACHINES — Examination of, by Ballot Law Commission — Delegation of Legislative Au- thority — Constitutional Law . 507 See Elections.
WAIVER — By Officer of Metropolitan Park Police of Benefits of Civil Service Rules, Effect of . . 165
>See Metropolitan Park Com- mission. 3.
WATER SUPPLY — Great Ponds —
Regulation of Public Rights . 302 See State Board of Health. 4.
Regulation of Public Use of —
Sources of Artificial Reservoirs — Boating and Fishing . . 364
See State Board of Health. 5.
Of Town — Indebtedness Two-thirds Majority See Towns. 3.
Vote
422
Great Ponds — Control and Regula- tion — Public Rights . . 448 See State Board of Health. 6.
Of Town, Indebtedness for — Vote 565
See Towns. 5.
WAYS AND MEANS, COMMITTEE
ON — Authority to ask Advice
of Governor and Council . . 226
See Governor and Council. 1.
WEIGHTS AND MEASURES — In- spection — Mechanical Devices for measuring Value of Com- modity weighed . . .51 The duty of the Deputy Sealer of Weights and Measures, and of sealers of weights and measures appointed in the several cities and towns under the provisions of R. L., c. 62, § 18, is confined to a determination of the accuracy of such appliances as register weights and dry or liquid measures, and does not require an examination of such mechanical devices as purport to register the value of the commodity weighed or measured.
WESTBOROUGH STATE HOSPITAL
— Trustee — Appointment of Officers — Compensation — Gov- ernor and Council . . . 313 St. 1909, c. 504, § 18, providing that the trustees of the Westborough State Hospital "shall appoint or make provision . . . for appointing such officers as . . . may be necessary for conducting . . . the business of the institution; and shall determine, sub- ject to the approval of the governor and council, the salaries of all the officers . . . ," includes all persons who hold positions in such institution which are created by the
WESTBOROUGH STATE HOSPITAL
— Continued.
trustees, and who are paid salaries, as dis- tinguished from persons who do not hold distinct positions and are e?mployed for wages, and requires that the propo; -d npensation of a person holding such posi....n shall be approved by the Governor and C'^'mcil.
WET LANDS — Reclamation a. i Sale of — Appropriation — Public Purpose — Eminent Domain — Gratuity . . . .538
See Constitutional Law. 25.
WIFE — As Surety on Official Bond of
Husband . . . .260
See Bond.
WILD FOWL — Pursuit of, in Launch
or Power Boat . . .189
See Fisheries and Game.
WILD OR FOREST LANDS— Taxa- tion — Amendment to Constitu- tion — Standing Wood and Tim- ber 531
See Constitutional Law. 24.
WITNESS FEES — Employees of Com- monwealth . . . .292 See Fees.
WOMAN — Truant Officer — Constitu- tional Law .... 444 See Truant Officer.
WOMEN — Employment in Manufacture
of TextUe Goods . . .126
See Textile Goods.
Employment of — Mercantile Estab- lishment — Manager of Depart- ment ..... 269 See Labor. 5.
WOODLAND — Used for Educational Purposes — Exemption from Taxation .... 247
See Tax^vtion. 5.
WORKMEN'S COMPENSATION ACT
— Employee — Commonwealth
as Employer .... 569 The provisions of St. 1911, c. 751, which establishes a system for the compensation of employees for personal injuries received in the course of their employment, are not ap- plicable to the Commonwealth as an em- ployer in its various departments nor to direct employees of the Commonwealth.
WORKSHOP — Employment of Chil- dren — Certificate See Labor. 4.
177
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