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Full text of "Report of the Attorney General for the year ending .."

OFFICIAL OPINIONS 



THE ATTORNEYS-GENERAL 



C0mm0ixtoaIt]^ 0f P^assarljnsrfts* 



PUBLISHED BY THE 

ATTOKJ^E Y- GENERAL. 



YOLUME I. 

From 1891 to 1898 inclusive. 



BOSTON : 

WRIGHT & POTTER PRINTING COMPANY, STATE PRINTERS, 

18 Post Office Square. 

1899. 



k 



THIS TOLrMZ CX)STAESS 
THE OPISTOXS OF ATTOBXEYS-GESTR AT. 

ALBERT E. PILLSBUET, 1891-1893. 
HOSE A M. X:SOWL.TOS. 1S94-1898. 

ALSO TABLES OF STAXrTZS A>'D CASES 
CITED, AXD AN* DsDEX DIGEST. 



PREFACE. 



The report of the Attorney-General for the year 1891 was 
the first that was accompanied with copies of the opinions sub- 
mitted during the year. The feet was referred to therein as 
follows : — 

" The frequent inquiry which is made for the official opinions of the 
Attorney-General, and the difficulty of procuring them even fi'om 
the files of this department, in which they can be found if at all only 
by searching through voluminous correspondence, and other reasons 
which need not be stated, lead me to believe that we may adopt with 
advantage the custom of other States, to print such part of them as 
may be of public interest or importance or useful for future refer- 
ence ; and I have accordingly appended copies of such to this report " 

Since that year the practice of annexing copies of the opin- 
ions of the Attorney-General to his annual report has been 
uniform. Inasmuch, however, as they are not indexed, and 
are scattered through numerous volumes, the opinions have 
become of little value for purposes of reference. To meet this 
difficulty, the Attorney-General was authorized, by Kesolves 
of 1898, chapter 95, "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 as he may deem to be of public interest 
or useful for reference." The present volume is issued in 
execution of the authority conferred by that resolve. 

Mr. Arthur W. De Goosh, Assistant Attorney-General, has 
rendered valuable assistance in the preparation of this volume. 



Boston, December, 1899. 



HOSEA M. IvNOWLTON, 

Attorney- Oe7ieral, 



Table of Statutes cited or referred to ix 
This Yolume. 



Art. 1, § 2, . 
Art. 1, §§ 3, 4, 
Art. 1, § 5, . 
Art. 1, § 8, . 



United States Constitution. 



PAGE 




331 


Art. 1, § 9, . 


201 


Art. 4, § 1, . 


37 


Amendment 14 


575 





PAGE 

4S1 

, 223 
. 331 



Constitution of the Commonwealth. 



Const. 







PAGE 








PAGE 


f Rights, art. 6, 




. 494 


Const. 


c. 


2, § l,art. 7, 


145, 450 


arts. 6, 


7, ■ 


. 341 




— 


— art. 8, 


. 199 


art. 9, 




452-455 




— 


— § l,art. 10, 


. 449 


art. 10, 


62, 


225, 328 




c. 


3, art. 4, 


. 163 


art. 12, 




. 451 




c. 


6, art. 2, 


233, 318 


art. 17, 




. 553 


Amend'ts Const, art. 1, 


. 170 


art. 30, 


163, 


174, 233 






art. 3, 


. 465 


c. 1, § 1, art. 2, 




. 170 






art. 4, 


30, 449 


§ l,art. 4, 




. 237 






art. 8, 


. 233 


§ 3, art. 2, 


cl. 4, 


. 43 






art. 18, 


320, 428 


§ 3, art. 3, 




. 603 






art. 30, 


. 70 


§ 3, art. 10, 




. 8 






art. 33, 


. 36 


c. 2, § l,art. 2, 




. 452 











Acts of Congress. 

PAGE 



1861, August 5, 12 Stat. 292, 

c. 46, .... 12, 14 

1862, July 2, 12 Stat. 503, c. 
130 192, 193 

1866, July 13, 14 Stat. 93, c. 

184, 563, 566 

1882, August 3, 22 Stat. 214, 

c. 376, 167 



1887, March 2, 24 Stat. 440, 

c. 314, 193 

1891, March 2, 26 Stat. 822, 

c. 496 13, 16 

1891, March 3, 26 Stat. 1084, 

c. 561, 167 

1898, June 13, 30 Stat. 448, 

c. 448, . . 563, 565-567, 572 



VIll 



STATUTES CITED. 



§u, . 

§§ 14, 15, 
§23, . 
§27, . 



United States Revised Statutes. 



PAGE 

. 203 
. 201 
. 332 
. 603 



§ 5278, . 
§ 5539, . 
§ 5543, . 
§ 6544, . 



PAQB 

116, 223,386 
. 541 
. 542 
. 246 



Statutes of the Commonwealth. 









PAGE 




FAOB 


C. L. 1641-47, . . . .413 


1859, c. 172, 


. 439 


1712, March 12, 






525, 527 


c. 196, 


. 662 


1714, c. 7, § 2, 






. 63 


c. 224, § 2, . 


. 178 


1727, c. 11, 






. 63 


1861, c. 222, § 2, . 


. 497 


1740, c. 16, 






. 63 


1863, c. 215, 


439, 440 


1779, c. 18, 






. 53 


c. 220, § 1, . 


. 192 


1785, c. 75, 






. 526 


c. 240, 


. 490 


1786, c. 12, 






. 53 


c. 254, § 4, . 


. 629, 530 


1806, c. 21, 






. 63 


§ 7, . . 


. 530 


1807, c. 79, 






. 53 


1864, c. 77, 


. 53 


1811, c. 92, 






. 63 


1865, c. 32, 


. 269 


1817, c. 120, 






. 26 


c. 97, 


. 624 


1826, c. 80, 






. 63 


§§ 4, 5, . 


. 625 


1827, c. 117, § 1, 






. 526 


1866, c. 149, 


. 414 


1831, c. 56, 






. 122 


§§ 2-4, . 


. 416 


1833, c. 143, 






. 53 


§ 4, . . 


. 414 


1835, c. 125, 






. 53 


§ 5, . . 


. 416, 482 


1838, c. 151, 






. 53 


c. 235, § 3, . 


. 460 


1839, c. 101, 






. 123 


c. 280, § 2, . 


. 309 


1842, c. 94, 






. 439 


1868, c. 51, 


. 269 


1844, c. 28, § 2, 






. 123 


c. 310, 


. 130 


c. 56, 






. 406 


c. 333, 


. 269 


c. 157, 






. 439 


1869, c. 152, 


. 214 


1846, c. 158, § 3, 






. 122 


c. 218, 


. 63 


1847, c. 165, § 3, 






. 256 


c. 432, 


. 415 


c. 244, § 2, 






. 124 


c. 450, 


. 269 


1849, c. 49, § 1, 






. 240 


1870, c. 93, 


263, 264 


1850, c. 225, 






. 527 


c. 224, § 32, 


. 663 


1853, c. 306, 






. 63 


§59, 


. 206 


1854, c. 104, § 4, 






. 83 


c. 258, 


. 92 


c. 261, 






. 63 


c. 370, §4, . 


. 310 


1856, c. 71, 






. 439 


1871, c. 389, 


130, 138 


c. 252, § 15, 




. 26 


c. 392, 


. 129 


c. 284, § 23, 




. 162 


1872, c. 171, 


126, 136 


1858, c. 2, §§ 1, 2, 




. 45 


c. 236, § 1, . 


. 416 


c. 93, 




. 162 


§§ 1, 2, . 


. 416 


c. 109, 




. 527 


c, 375, 


. 23 


c. 154, 






. 518 


1878, c. 155, 


. 291 



STATUTES CITED. 



IX 



Statutes of the Commonwealth — Con. 



1873, c. 

1874, c. 

c. 

1875, c. 

187G, c. 

c. 

1877, c. 

1878, c. 

c. 

1879, c. 

c. 

c. 

1880, c. 

1881, c. 

1882, c. 

c. 

c 

1883, c. 



182, 
331, 
156, 
347, 
376, 
391, 
177, 
209, 

203 

204, 

98, 

204, 

211 

213, 

65 

74, 

96, 

265, 

130, 

152, 

202, 

209, 

254, 

263 

291 

294, 

175, 

250, 

71, 

89, 

126, 

166, 

183, 

49 

110, 

154, 

195, 

199 

200, 

212 

246, 

36 

52 

100, 

105, 



§4. 

§10, 

§4, 

§2, 



§2, 
§1. 



§ 10, 
§4, 



§1, 



66 



PAGE 




PAGE 


. 22 


1883, c. 222, § 1, . 


. 339 


. 35 


§§1, 2, . . 


. 338 


. 440 


§2, . . . 


. 335 


. 416 


1884, c. 252, § 6, . 


. 181 


. 469 


c. 255, 


. 292 


. 259 


§§ 24, 28, . 


. 292 


. 206 


§ 32, 


. 293 


, 263, 264 


c. 258, § 1, . 


. 459 


. 264 


c. 286, 


318,319 


. 434 


c. 320, 


71, 102 


. 451 


§ 2, . . . 


248, 250 


630, 642 


§§ 3, 4, . . 


. 247 


. 469 


§ 14, cl. 6, 


. 245 


. 319 


§ 15, . . 


72, 103 


. 416 


§20, 


. 383 


. 178 


§ 22, 


. 260 


. 416 


c. 322, 


. 256 


. 327 


c. 323, § 5, . 


. 266 


. 46 


c. 330, . . 181 


, 339, 340 


. 48 


1886, c. 35, § 1, . 


. 460 


. 334 


c. 183, 


469, 505 


. 206 


§1. . . 


. 506 


. 479 


§ 3, . . 


. 473 


. 319 


§ 13, 


. 477 


. 416 


c. 312, 


. 66 


112, 490 


c. 314, 


. 82 


. 281 


§ 7, . . 


186, 188 


. 35 


§§ 7-9, 11, 


. 187 


. 68 


§ 10, 


. 84 


. 67 


§§ 10, 16, . 


89,90 


. 440 


§ 12, 


. 659 


. 282 


§ 13, 


. 89 


. 35 


§ 15, 


. 551 


. 68 


c. 327, 


. 193 


. 67 


c. 345, § 6, . 


. 438 


257, 258 


1886, c. 77, 


. 402 


618, 620 


c. 102, 


. Ill 


. 505 


c. 219, 


. 115 


523-525 


c. 276, 


. 523 


. 401 


§ 4, . . 


. 478 


. 193 


§11, 


. 524 


. 438 


c 318, § 2, . 


. 236 


. 524 


c. 323, § 5, . 


. 460 


. 402 


c. 346, § 2, . 


186, 188 


. 106 


§ 5, . . 


. 187 


. 193 


1887, c. 31, 


. 193 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 



1887, c. 31, 

c. 39, 

c. 212, 

c. 214, 



§5, 



c. 225, 
c. 252, 
c. 263, 
c. 264, 
c. 292, 
c. 367, 
c. 382, 

c. 411, 



§3, 

§5, 

§ 20, 

§§ 20, 56, 

§ 28, 

§29, 

§§ 45, 46, 

§§ 57, 60, 

§60, 

§ 61, 

§ 62, 

§ 78, cl. 5 

§80, 

§87, 

§14, 



§3, 



c. 437, 
c. 438, 



1888, c. 134, 



§§ 45, 51, 

§64, 

§90, 

§2, . 
§§ 2, 3, 
§3, . 
§§3,4,6, 

§§1-4, 
§4, . 



c. 183, 
c. 275, 
c. 296, 
c. 307, 
c. 333, 
c. 334, 
c. 336, 
c. 363, 



33 



12, 



80 



PAGE 








PAGE 


193, 194 


1888, 


c. 365, 


. 87 


. 444 




c. 384, 




. 508 


. 193 




c. 403, § 2, . 




. 39 


. 116 




c. 426, 




. 154 


164, 346 




§ 12, 




. 155 


. 175 




c. 429, §§ 8, 9, . 




. 156 


. 25 




§ 9, . . 




155, 571 


. 26 





c. 431, 




. 147 


. Ill 


1889, 


c. 209, 




. 444 


. 165 




c. 222, 




. 279 


158, 159 




c. 279, § 2, par. 3 




. 28 


. 34 




c. 301, §§ 1, 7, 8, 




. 49 


35, 104 




c. 305, 




. 151 


229, 230 




c. 356, 




. 20 


. 41 




c. 394, § 4, . 




368, 548 


. 48 




c. 413, § 23, 




. 5 


. 20 




§§ 23, 26, 




. 6 


. 75 




c. 414, §8, . 




. 487 


. 279 




c. 424, 




. 418 


. 74 




§5, . 




. 418 


. 66 




§ 6, . . 




. 419 


. 467 




c. 439, §§ 13, 14, 




. 448 


. 460 




§14, 




. 447 


. 114 


1890 


c. 159, § 3, . 




. 178 


. 81 




c. 215, 




510, 512 


88,89 




c. 216, § 2, . 




. 510 


. 29 




c. 306, 




. 200 


. 46 




c. 316, 




. 27 


. 30 




c. 335, 




15, 17 


. 63 




c. 341, 


3 


2, 155-157 


248, 277 




§1, . 




1 


. 199 




§§ 8, 9, 




. 156 


. 200 




c. 354, 




. 68 


. 197 




c. 375, 




. 10 


. 510 




c. 386, 




618, 621 


. 548 




c. 421, 




. 312, 458 


. 550 




§1, • 




. 506 


. 549 




§§ 1, 2-9, 


26, 


. 507 


. 330 




§§ 2-8, 10 


12, 


. 314 


. 512 




§§ 10, 15, 




. 476 


. 193 




§ 14, 




. 67 


. 278 




§20, 




. 474 


193, 194 




§22, 




. 477, 478 


. 247 




c. 428, § 10, 




. 305 


. 404 




c. 440, § 1, . 


. 594, 604, 605 


. 333 




c. 445, 


. 10 


r, 109, 543 



STATUTES CITED. 



XI 



Statutes of the Commonwealth — Con. 









PAGE 




PAGE 


1890, c. 456, §§ 1-3, . . .311 


1893, c. 95, . . 195 


, 196, 354 


1891, c. 118, § 3, . 




. 105 


c. 200, § 2, . 


. 147 


c. 125, 




. 60 


c. 273, . . 144 


, 197, 198 


c. 153, 


420 


, 421, 423 


c. 326, 


. 419 


c. 195, 




. 19 


c. 352, § 1, . 


. 402 


c. 223, § 2, . 




. 311 


c. 367, §§ 14, 127, 129, 


130, 166 


c. 225, 




. 443 


§ 32, 


. 454 


c. 232, § 3, . 




. 36 


§ 63, 


. 451 


c. 286, § 1, . 




. 70 


§ 124, 


. 86 


c. 341, 




187, 583 


§§ 124, 153, . 


. 146 


c. 365, 




. 51 


§ 161, 


. 145 


c. 368, 




. 26 


c. 395, 


108, 157 


c. 370, 




. 550 


c. 407, 


286, 362 


§ 17, 




. 551 


§§ 1, 2, . . 


. 101 


c. 416, § 1, . 




. 604 


§ 4, . . 260 


,591,596 


c. 425, 28, 32, 52, 75, 85, 268, 


§9, . . 


. 360 


288, 289 


§ 12, 


. 361 


§ 1, . . . .76 


c. 413, 


. 99 


§§1, 2, 




. 77 


c. 417, § 29, 


. 646 


§§5, 9-11 


13, 


. 30 


§38, 


. 185 


§§9, 10, 




. 40 


§§ 71-74, 293, 


. 88 


§§ 13, 15, 




. 31 


§75, 


. 388 


§ 18, 




. 269 


§ 123, . 


. 252 


1892, c. 59, 




. 43 


§ 163, 


. 389 


c. 67, 






. 551 


§216, . 


. 243 


c. 200, 






. 597 


§ 274, . 


. 621 


§2, 






598, 599 


§§ 274, 293, 


. 620 


c. 229, 






. 323 


c.418. 


. 78 


c. 243, 






50, 344 


c. 443, § 6, . 


. 100 


c. 274, 






81, 88 


§ 4, . . 


. 101 


c. 279, § 2, 






. 378 


c. 465, § 6, . 


. 367,376 


c. 333, § 3, 






207, 208 


c. 474, 


. 98 


c. 338, §3, 






. 486 


c. 476, 


. 395 


c. 351, 






. 55 


§1, . . 


. 396 


§4, 






69, 70 


§ 14, 


. 317, 394 


c. 389, 






. 60 


1894, c. 77, 


. 346 


c. 407, 






. 68 


c. 143, 


. 192, 194 


c. 410, 






. 60 


c. 144, 


. 194 


C.418, §8, 






. 606 


c. 190, 


. 216 


§§8, 


9, 




. 607 


c. 224, §§ 4, 8, 12, 14, 


. 301 


c. 425, 






. 107, 543 


c. 250, 


. 198 


§2, 






. 108, 266 


§ 1, . . 


. 197 


§4, 






. 491 


c. 271,§ 2, . 


. 184, 185 


c. 432, 






. 74 


c. 288, § 1, . 


. 689 


c. 437, 






. 62 


§§1,3, . 


. 691 


1893, c. 47, 






.156 


§ 3, . . 


. 590 



Xll 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 











PAGE 








PAGE 


1894, 


c, 317, § 6, . 


. 


. 304 


1894, 


c. 508, § 12, 


. 209, 211 




§H, 


. 


. 230 




§§ 40-42, . 


. 268 




§21, 




. 434 




c. 509, 


. 286, 287 




§21,cl 


. 2, par. f. 


. 190 




c. 522, § 3, . 


345, 346, 433 




§21,cl 


. 5, 


. 337 




§ 6, cl. 3, . 


. 462 




§ 21, cl 


. 8, 


. 420 




§§ 7, 25, . 


. 231 




§ 21, cl 


. 9, 401 


402, 437 




§11, 


. 271, 273 




§ 25, 


. 


303, 538 




§§11,67,. 


. 270, 272 




§§ 26-28, . 




. 539 




§ 20, 


. 315 




c. 356, §§ 1, 2 






. 325 




§§ 20, 79, . 


. 573 




c. 367, 






. 411 




§§ 20, 79, 


SI, 83, . 574 




c. 377, 






. 232 




§§ 20, 84, . 


. 504, 505 




§2, . 






. 233 




§ 29, 


. 433 




c. 381, 




181 


339, 340 




§§ 30, 31, 


. 433 




c. 382, 






306, 308 




§ 31, 


. 434 




c. 391, 






157, 543 




§§ 32, 40, 


74, . . 411 




c. 399, 






. 214 




§60, 


. 432 




c. 409, § 5, . 






445, 446 




§ 60, cl. 7, 


. 432, 540 




c. 426, § 1, . 






. 302 




§61, 


. 229 




c. 436, 






. 428 




§78, 


. 425 




c. 440, 






487, 541 




§82, 


. 427 




c. 444, § 1, . 






. 174 




§96, 


. 426, 427 




§5, . 




211 


, 212, 216 




c. 550, § 18, 


. 172, 173 




§7, . 






. 177 


1895, 


c. 57, 


. 194 




c. 450, 






659-662 




c. 59, 




. 573 




c. 452, 






. 661 




c. 94, 




. 321 




c. 455, § 7, . 






. 294 




§ 1, . 




. 320 




c. 462, 






. 661 




c. 180, 




. 287 




c. 472, 






. 668 




c. 212, § 2, 




. 428 




c. 481, §§ 25, 


26, 




. 267 




c. 252, 




. 324, 487, 541 




§26, 






. 268 




c. 284, 




. 231, 232 




c. 483, 






. 286 




c. 286, 




. 322, 323, 492 




c. 491, § 5, . 






. 281 




c. 301, 




. 224 




§§ 7, 


26, 


27, 45 


. 372 




c. 305, 




. 286, 287 




§15, 






. 236 




c. 307, 




. 288 




§§10, 


45, 




234, 235 




c. 378, 




. 639, 640 




§§ 15, 


17, 22, 


. 375 




§2, 




. 638 




§§21, 


34, 


. 374 




c. 390, 




. 323, 492, 529 




§45, 




260, 534 




§§4, 


5, 


. 324, 528 




§51, 


. 


. 280 




c. 399, 




. 543 




c. 497, 




395, 488 




c. 428, § 3, 




. 274 




§§1,2, . 


. 537 




c. 429, 




. 323 




§2, . 


284, 28£ 


►, 394, 489 




c. 430, 




. 268 




§4, . 




370, 397 




c. 450, § 1, 




. 592 




c. 498, § 1, . 




. 518 




c. 452, § 1, 




. 405 




§§ 20, 


23, 




. 343 


1 


c. 462, 




. 601 



STATUTES CITED. 



XI 11 



Statutes of the Commonwealth — Con. 



1895, c. 462, § 1, . 

c. 464, §§ 4, 8, 20, 

§§8,19, 

§§8, 23, 

§ 23, 

c. 465, 

§§ 6, 7, 

c. 471,§2, . 

§§2, 3, 

c. 474, 

c. 482, 

c. 483, § 2, . 

§§ 10, 12, 

c. 486, 

c. 488, 

§ 10, 

§§16,30, 

§ 17, 

c. 493, 

c. 496, §§ 3, 10, 

§9, . 

§ 10, 

§ 11, 

c. 501, 

§§1,2, 

§2, 

§ 2, 6 

§6, 

c. 504, 

c. 508, § 2, 

1896, c. 231, 

c. 279, 

c. 306, 

c. 310, 

c. 335, 

c. 357, 

§2, 

c. 383, § 1, 

c. 397, §§7, 9, 

§9, 

§ 16, 

c. 408, 



23, 



247 



PAGE 

. 602 
. 352 
. 351 

350, 353 
. 349 
. 255 

254, 255 
. 508 
. 643 
. 553 
. 485 
. 486 
. 346 
. 440 
. 502 

515, 516 
. 358 
. 252 
. 357 
. 403 
. 257 

308, 309 
. 234 
. 373 

260, 632 
. 533 
. 244 
. 249 

245, 248 

246, 277 
, 276, 340 

250, 251 
. 325 
. 251 
. 539 

408, 410 
. 446 
. 331 
. 347 

440, 441 

391, 392 
. 559 
. 499 
. 500 
. 501 

576, 577 



1896, c. 447, § 1, 
§2, 

465, § 1, 

466, 

472, 

481, § 2, 

498, 

§1. 
513, 
515, 

§3, 

§§ 5, 7, 10 

§7, 
516, . 332, 
517, §1, 
524, 

531, § 1, 
537, 

— §1, 

— §§1,3, 

— §3, 
541, 
546, 

— §1. 
550, 

— §1. 
66, 

— §1, 
121, § 2, 
153, 

— §§ 7-9, 

— §9, . 

— §§ 8, 10, 1 

— §10, 
172, 
179, 
205, 
206, 

— §1. 
355, 

— §1. 
374, 
415, 
438, 

— §2, 
439, §§ 6, 12, 



1897, c. 
c. 



664 



PAGE 

. 433 
433, 434 
. 593 
. 361 
. 361 
. 371 
366, 378 
. 376 
358, 359 
462, 463 
. 461 
348, 349 
. 514 
480, 482-484 
409 
327 
380 
660 
669 
667 
, 666, 668 
393-397 
. 486 
. 485 
360, 362 
364, 365 
. 433 
. 545 
. 595 

438, 440 
. 441 

439, 443 
. 442 
. 509 
. 654 
. 493 
. 643 
. 541 
. 487 

489, 490 
. 537 
. 463 
. 463 
. 449 
. 452 
. 484 



XIV 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 









PAGE 






PAGE 


1897, c. 474, . . . .487 


1898, c. 496, § 1, . 




576, 577 


c. 500, § 10, 




581, 682 


§ 8, . . 




. 578 


c. 508, 




. 561 


c. 537, §§ 1,3, . 




. 573 


c. 524, 






478, 480 


c. 548, §§ 36, 37, 


par. 


4,60, 


1898, c. 128, 






. 650 


74, 




. 600 


c. 204, § 2, 






. 599 


§ 60, 




. 599 


c. 339, 






. 480 


c. 561, § 1, . 




. 575 


c. 380, § 1, 






. 540 


c. 562, § 116, 




. 561 


c. 395, 






. 548 


§ 4, . 




. 562 


c. 425, § 1, 






. 522 


c. 567, § 3, . 




. 569 


c. 447, 






. 568 


c. 578, §§ 2, 4, 26 


,28, 


. 571 


c. 474, 






. 580 


^ 28, 




. 582 


c. 496, §§ 1, 


16, 1 


7, 


. 579 


§ 13, 




. 589 









Resolves. 








PACK 


PAGE 


1781, c. 242, .... 45 


1885, cc. 66, 68, . . . . 193 


1794, c. 74, 






. 45 


1886, c. 17, 






. 193 


1795, c. 18, 






. 45 


1887, c. 16, 






. 161 


1849, c. 57, 






. 162 


c. 44, 






. 193 


1852, c. 9, 






. 162 


1888, c. 15, 






. 193 


1855, c. 49, 






. 162 


c. 39, 






12, 13 


1856, c. 100, 






. 162 


. c. 77, 






. 146 


1857, c. 68, 






. 45 


c. 89, 






. 115 


c. 86, 






. 162 


1891, c. 46, 






. 14 


1859, c. 103, 






. 414 


c. 107, 






. 51 


c. 106, 






. 146 


1892, c. 90, 






. 161 


c. 130, 






. 45 


c. 101, 






. 66 


1862, c. 98, 






. 14 


1893, c. 36, 






. 86 


1864, c. 46, 






. 414 


1895, c. 47, 






. 228 


1866, c. 74, 






. 162 


c. 70, 






330, 331 


1867, c. 4, 






. 162 


cc. 123 126, 






. 498 


1872, c. 39, 






. 291 


1896, c. 41, 






. 543 


1877, c. 69, 






. 162 


c. 59, 






. 391 


1882, c. 57, 






. 161 


cc. 103, 104 


, 10( 


5-110 


, 115, 


1884, c. 48, 






. 193 


117, 






. 498 


c. 72, 






. 403 


c. 118, 






. 348 


1885, c. 29, 






. 403 


1897, c. 40, 




. 43J 


), 442, 443 



Revised Statutes. 



c. 83, § 54, 



PACK 

162 



STATUTES CITED. 



XV 



c. 9, § 6, 
c. 11, §4, 
c. 13, § 36, 

§45, 



General Statutes. 



PAGE 








. 243 


c. 


60, 


§17, 


. 333 


c. 


33, 


§6, 


. 454 


c. 


117, 


§31, 


. 46 


c. 


154, 


§ 12, 



PAGE 

. 663 
. 439 
. 162 
. 53 



Public Statutes. 









PAGE 








PAGE 


c. 2, § 33 347 


c. 29, § 9, 263 


§34, . 






. 67 


§§ 9, 16, 






. 265 


c. 3, § 3, cl. 3, 






. 465 


§17, . 






. 266 


§ 3, cl. 23, 






. 464 


c. 37, . 






. 207 


c. 11, §5, . 






. 607 


§ 15, . 






. 207 


§ 5, cl. 2, . 






. 402 


c. 40, § 6, . 






438, 440 


§56, . 






. 73 


c. 41, § 10, . 






. 228 


c. 13, § 38, . 






278, 582 


c. 43, § 5, . 






. 517 


§§ 38, 40, 53 


,57, 


58, 


. 571 


c. 44, § 2, . 






. 321 


0. 14, . 






. 46 


0. 48, §§ 8, 9, 






. 307 


§33, . 






. 454 


c. 53, § 30, . 






. 343 


§92, . . 






. 63 


c. 61, § 14, . 






. 551 


c. 16, § 5, . 






. 281 


c. 63, § 16, . 






. 180 


§30, . 






. 302 


§ 19, . 






. 78 


§37, . 






. 557 


c. 68, § 19, . 






605, 606 


§55, . 






. 2 


c. 70, § 21, . 






. 180 


§65, . 






. 396 


§§ 21, 26, 






. 181 


c. 17, § 4, . . 






. C39 


c. 73, § 3, . 






. 425 


c. 19, . 






. 412 


c. 77, § 8, . 






66, 67 


§§6-9, 






. 416 


c. 79, §§ 2, 5, 11, 






183, 227 


§§8,9, 






. 481 


§9, . 




15J 


), 160, 491 


§§8,9,16, 






483, 484 


§ 13, . 






67, 68 


c. 20, §1, . 






. 406 


c. 80, . 






143, 422 


§2, . 






. 94 


§1, . 






. 143 


c. 21, § 1, . 






. 141 


§§ 18, 20, 21 


,23, 


24,2' 


r, . 293 


c. 22, § 20, els. 2, 


4, 




. 400 


§49, . 






. 296 


§31, . 






. 197 


§§ 70-83, 






420, 421 


c. 23, § 26, . 






391, 392 


§ 75, . 






. 423 


c. 24, . 






. 308 


§§92,93, 






. 214 


§25, . 






308, 309 


c. 82, §§ 2, 3, 






. 327 


c. 27, . 




. 26^ 


[, 265, 464 


§§ 10-14, 






. 328 


§§27,28, 






. 263 


c. 83, § 1, cl. 5, 






. ■ .519 


§§ 78, 80, 






. 620 


§2, . . 






620, 521 


§85, . 






. 599 


c. 84, . 






95, 464 


c. 28, § 2, . 






. 464, 465 


§37, . 






. 96 


c. 29, . 






264, 265 


c. 85, § 32, . 






. 636 


§§1.4, 






. 06 


c. 86, . 






167, 168 


§§ 7, 8, 14, 


16, 2c 


5, 


. 24 


§§25,26, 






.421 



L 



XVI 



STATUTES CITED. 



Public Statutes — Con. 





PAGE 




PAGB 


c. 87, §§ 6, 7, 9, 31 


, . . . 466 


c, 106, §§ 54, 59, . 


. 279 


§ 13, . 


. 323 


§56,. . . . 


. 203 


§§ 26, 28, 53 


. 283 


§§56,59, . 


. 204 


§45, . . 


. 159 


§ 77, . . . . 


. 83 


c. 88, . 


. 467 


§ 84, . 


. 300 


§4, . . 


. 219 


§ 84, els. 2, 3, . 


. 205 


§5, . . 


. 459 


c. 112, § 12, . 


. 462 


c. 89, §§ 1, 3, 6, . 


.183 


§§ 14, 15, . 


. 640 


§§5,6, 


. 274 


§ 25, . 


. 641 


§6, . . 


. 226, 275 


§ 23, . 


. 279 


§§ 1, 3, 5-7, 


50, 53, . . 227 


§34 


. 610 


§7, . . 


. 182, 273 


§§ 34, 35, 46-49, 


. 612 


§22, . 


. 405 


§ 44, . 


656, 657 


§38, . . 


. 113 


§ 50, . 


. 616 


§§ 38 44, 46 


47, 53-56, . 97 


§ 54, . 


. 411 


§45, . 


. 305 


§ 59, . . . . 


. 129 


§47, . . 


. 184 


§61,. 


130, 138 


c. 92, . 


. 523, 525 


§ 220, 


. 123 


§6, . . 


. 524 


§§ 220, 221, 


. 119 


§8, . . 


. 624, 525 


c. 113, .... 


. 395 


c. 93, . 


. 596 


§6, . . . 


655, 656 


c. 100, § 18, . 


. 501 


§7, . . . 


. 589 


c. 102, . 


. 299 


§§ 7, 21, 22, 


393, 489 


§ 61, . 


. 213 


§§ 7, 21-26, . 


. 317 


§ 72, . 


. 215 


§ 12, . 


. 411 


§§ 72, 73, 


. .214 


§ 22, . . . 39' 


I, 396, 397 


§ 87, . 


. 604 


c. 114, §§ 1, 2,5, 6, 11, 


. 91 


§ 90, . 


. 606 


§ 1, 6, 7, . 


. 92 


§ 115, 


. 307 


§§1,7, . . 


. 93 


c. 104, § 20, . 


. 307 


§§1,9, . . 


. 406 


c. 105, §§ 1, 5, 


. 408, 411 


c. 115, . . . .50 


5, 549, 580 


§5, . 


. 407 


§§ 1-10, . 


. 469 


c 106, . 


. 185, 186, 563 


c. 116, § 20, cl. 3, 


. 149, 150 


§§ 7, 8, 


. 210 


c. 117, § 19, 20, . 


. 401 


§11,. 


. 211 


c. 118, § 10, . 


. 411 


§§ 7, 8, 16 


21, 32, 33, 46, 


c. 119, .... 


. 477 


51, 52, 


. 206 


§§ 139, 140, 


. 35 


§§ 11, 16, 


. 660 


c. 131, § 18, . 


. 536 


§ 14, . 


. 42, 153, 275, 304 


c. 145, ^ 22, . 


. 445 


§ 22, . 


. 425 


c. 152, § 17, . 


. 152 


§ 27, . 


. 411 


c. 153, § 25, . 


. 152 


§§ 34, 39, ^ 


t6-48, . 662-664 


c. 154, § 27, . 


. 523 


§ 46, . 


. 661 


c. 155, §§ 12, 71, . 


. 310 


§ 51, . 


. 41 


c. 156, § 42, . 


. 162 


§§ 51, 52, 


. 205 


c. 157, §§ 13, 138, 


. 162 


§ 54, . 


. 187, 189 


c. 158, .... 


. 444 



STATUTES CITED. 



xvii 



Public Statutes — Con. 









PAGE 








PAGB 


c. 158, § 23, 162 


c. 207, §§ 26, 27, 29, . . . 219 


§ 24, . . 






. 444 


§ 42, . 




. 459 


c. 159, § 9, . 






. 467 


c. 213, § 15, . 






. 528 


§§ 9, 33, 






. 468 


c. 214, § 16, . 






. 529 


c. 160, § 4, . 






. 67 


§§ 16, 19, . 






323, 324 


c. 168, §§ 24-26, 






. 513 


§§ 16, 19, 2 


0, 




. 528 


c. 169, § 19, . 






. 600 


c. 215, § 8, . 






. 310 


§ 70, . 






. 425 


§ 13, . 






. 310 


c. 170, § 2, . 






. 146 


c. 217, §§1,2, 






. 639 


c. 186, § 17, . 






. 84 


c, 218, § 1, . 






117, 386 


§§ 17, 19, 2 


0, 




. 634 


§ 15, . 






. 516 


§ 19, . 






. 637 


c. 219, § 1, . 






. 488 


c. 187, § 13, . 






. 460 


§6, . 






. 460 


e. 195, § 4, . 






. 557 


§ 14, . 






281, 282 


c. 196, § 11, . 






. 53 


c. 220, § 2, . 






. 617 


c. 199, § 5, . 






522, 523 


§ 64, . 






. 282 


§ 36, . 






. 404 


§§ 66, 68, 






. 219 


c. 200, § 5, . 






. 500 


c. 222, § 10, . 






. 113-115 


c. 202, § 15, . 






. 240 


§§ 10, 12. 14, 




. 628 


c 205, § 12, . 






. 502 


§ 20, . 






. 10 



XVlll 



CASES CITED. 



Table of Cases cited in This Volume. 



Abbott V. North Andover, 145 

Mass. 484, . . . .25 

Agawam Bank v. South Hadlej', 

128 Mass. 503, .... 24 
Allen V. Jay, 60 Maine, 124, . 237 

Arms V. Conant, 36 Vt. 744, . 186 
Arundel v. McCuUock, 10 Mass. 

70, 489 

Attorney-General v. Abbott, 154 

Mass. 323, . . . .632 
V. Bay State Mining Co., 99 

Mass. 148, . . . .584 
V. Bei'kshire Health & Acci- 
dent Asso., 171 Mass. 458, . 508 

V. Boston, 123 Mass. 460, . 640 

V. B. & L. R.R., 118 Mass. 

345, .... 414, 415, 418 

V. Cambridge, 119 Mass. 518, 

418, 482 

V. Crocker, 138 Mass. 214, . 342 

V. Fagan, 22 La. 545, . . 169 

V. Jamaica Pond Aqueduct 

Corp., 133 Mass. 361, . . 651 
V. Metropolitan R.R., 125 

Mass. 515, .... 651 
V. Old Colony R.R. Co., 160 

Mass. 62, 80, . . . . 640 

V. Sullivan, 163 Mass. 446, 

635, 637 
V. Tudor Ice Co., 104 Mass. 

239, 651 

v.B. & M. R.R. Co., 109 

Mass. 99, , . . . 131, 135 

V. Whitney, 137 Mass. 450, . 632 

V. Woods, 108 Mass. 436, . 418 

Beekman v. Third Avenue R'y 

Co., 153 N. Y. 144, . . .689 



Beer Co. v. Massachusetts, 97 

U. S. 25, 296 

Bellows V. Todd, 39 Iowa, 209, . 186 
Blair u. Forehand, 100 Mass. 136, 300 
Boston Seamen's Friend See. v. 

Boston, 116 Mass. 181, . . 607 
Boston V. Amesbury, 4 Met. 278, 521 

V. Brookline, 156 Mass. 172, 489 

V. Wells, 14 Mass. 384, . 521 

Bowman v. Boston, 5 Cush. 1, . 285 

V. Chicago R'y Co., 125 U. S. 

465, 168 

Brennan v. Titusville, 153 U. S. 

289, 168 

Brigham V. Edmands, 7 Gray,359, 404 
Brown v. Russell, 166 Mass. 14, 

340, 342, 343, 453, 494, 495 
Buckman v. Ruggles, 15 Mass. 

180, 342 

Bullock V. Aldrich, 11 Gray, 206, 342 
Byers v. Franklin Coal Co., 106 

Mass. 131, . . . .210 
Cambridge Water Works v. Som- 

erville Dyeing Co., 4 Allen, 239, 587 
Cambridge v. Cambridge R.R. 

Co., 10 Allen, 50, . . . 589 
Capen v. Stoughton, 16 Gray, 

364, 222 

Cardoze v. Swift, 113 Mass. 250, . 503 
Carr v. Warren, 98 Mass. 329, . 497 
Carter v. Burt, 12 Allen, 424, . 310 
Case of Supervisors, 114 Mass. 

247, 174 

Cavanagh v. Boston, 139 Mass. 

426, 404 

Central R'y & Electric Co.'s App. , 
67 Conn. 197, . . . • 589 



CASES CITED. 



XIX 



Chandler v. Lawrence, 128 Mass. 

213, 342 

Church V. Crocker, 3 Mass. 17, . 499 
Chy Lung v. Freeman, 92 U. S. 

275, 168 

Claflin V. U. S. Credit System 

Co., 165 Mass. 501, . . .545 
Clark V. Easton, 146 Mass. 43, . 342 
Collector v. Day, 11 Wall. 113, 

567 572 

Commissioners v. Holyoke Water 

Power Co., 104 Mass. 446, . 481 
Commonwealth v. Alger, 7 Cush. 
77, . . ... 413 

V. Athearn, 3 Mass. 285, . 637 

V. Cambridge, 20 Pick. 267, . 465 

V. Charlestown, 1 Pick. 180, 413 

V. Coombs, 2 Mass. 489, . 489 

V. Doherty, 103 Mass. 443, . 599 

V. Ellis, 158 Mass. 555, . 213 

V. Gorham, 99 Mass. 420, . 500 

V. Hall, 128 Mass. 410, . . 479 

V. Heffron, 102 Mass. 148, 526, 527 

r.Kenueson, 143 Mass 418, . 525 

V. Kidder, 107 Mass. 188, 213, 215 

V. Lockwood, 109 Mass. 323, 500 

V. Lowell Gas Co., 12 Allen, 

75, 

V. Murphy, 166 Mass. 171, . 

V. Old Colony & Fall River 

R.R. Co., 14 Gray, 93, . 

V. Perry, 155 Mass. 117, 

V. Roxbury, 9 Gray, 451, 

V. Smith, 111 Mass. 407, 

V. Sullivan, 165 Mass. 183, . 

V. Swasey, 133 Mass. 538, . 

•;;. Wetherbee, 105 Mass. 148, 

846, 545 

V. Woods, 11 Met. 59, . . 342 

Concord R.R. v. Greeley, 17 

N. H. 47, 

Cook V. Stearns, 11 Mass. 533, . 

Covington Bridge Co. v. Mayer, 

31 Ohio, 317, .... 

Davis V. Commonwealth, 164 

Mass. 241, . . . .19 
Deansville Cemetery Asso., 66 
N. y. 569, . . . .330 



585 
554 

481 
60 
414 
598 
326 
342 



237 
417 



133 



District Attorney v. Lynn & Bos- 
ton R.R. Co., 16 Gray, 242, . 652 
Dorgan v Boston, 12 Allen, 223, 225 
Dover v. Wheeler, 51 Vt. 160, . 385 
Dudley v. Jamaica Pond Aque- 
duct Corp., 100 Mass. 183, .210 
Dumain v. Gwynne, 10 Allen, 270, 628 
Dwinnels v. Parsons, 98 Mass. 

470, 

East Sudbury v. Sudbury, 12 

Pick. 1, 

V. Walthara, 13 Mass. 460, . 

Ekiu V. U. S., 142 U. S. 651, 
Elliott V. Willis, 1 Allen, 461, . 
Enterprise Brewing Co. v. 

Grime, 173 Mass. 251, . 304, 340 
Essex V. Brooks, 164 Mass. 79, . 289 
Evening Journal Asso. v. Assess- 
ors, 47 N. J. L. 36, . 
Evergreen Cemetery Asso. v. 
Beecher, 53 Ct. 551, . 

V. City of New Haven, 43 Ct. 

234, 

Ex Parte Swearinger, 13 So. 

Car. 74, 

Fiske V. Lincoln, 19 Pick. 473, . 
Fitchburg R.R. Co. v. Grand 
Junction R.R., etc., Co., 1 
Allen, 552, . . . 342, 347 

Fowler v. Beebe, 9 Mass. 231, 

V. Danvers, 8 Allen, 80, 

V. Pierce, 2 Cal. 165, . 

Franco-Texan Land Co. v. Laigle, 

59 Tex. 339, .... 

Freeland v. Hastings, 10 

Allen, 570, .... 

Freeman v. Kenney, 15 Pick. 44, . 526 

V. Machias Water Power 

Co., 38 Maine, 343, . 
Frost V. Belmont, 6 Allen, 152, . 
German Am. Ins. Co. v. Com- 
mercial Fire Ins. Co., 95 Ala. 

469, 

Gilmore v. Holt, 4 Pick. 258, 
Globe Mutual Benefit Asso., 135 
N. Y. 280, .... 

GoddardtJ.Rawson, 130 Mass. 97, 503 
Gould i;. Lawrence, 160 Mass. 232, 160 



342 

521 
520 
168 
342 



210 



329 



329 



223 
465 



342 
496 
169 

186 

237 



186 
19 



316 
342 



313 



XX 



CASES CITED. 



Grangers' Life, etc., Ins. Co. v. 

Kamper, 73 Ala. 325, . . 657 
Grover v. Pembroke, 11 Allen, 88, 497 
Hale V. County Commissioners, 

137 Mass. Ill, . . . .333 
Hall V. County Commissioners, 

10 Allen, 100, . . . .333 
Hanson v. Vernon, 27 Iowa, 28, . 237 
Hawes v. Petroleum Co., 101 

Mass. 385, . . . . 585 

Head Money Cases, 112 U. S. 580, 168 
Henderson v. Mayor of N. Y., 92 

U. S. 259, 168 

Henry v. Newburyport, 149 Mass. 

582, 414 

Henshaw v. Hunting, 1 Gray, 203, 414 
Hingham & Quincy Bridge, etc., 

Corp. V. Norfolk, 6 Allen, 353, 225 
Hittinger v. Westford, 135 Mass. 

258, 210,585 

Hodgkins v. Farrington, 150 

Mass. 19, 417 

Home V. B. & M. R.R. Co., 62 

N.H. 454, 133 

Howe V. Boston Carpet Co., 16 

Gray, 493, . . . .578 

Ingram v. Cowles, 150 Mass. 155, 585 
James v. Scituate, 11 Allen, 93, . 496 
Jaquith v. Wellesley, 171 Mass. 

138, 560, 561 

Jenkins v. Andover, 103 Mass. 94, 

321, 322 
Johnson v. Carter, 16 Mass. 443, 417 
Jones V. Leonard, 50 Iowa, 106, . 387 
Kean v. Stetson, 5 Pick. 492, 414, 489 
Keenan v. Southworth, 110 Mass. 

474, 342 

Kentucky v. Denison, 24 How. 66, 223 
Keough V. Holyoke, 156 Mass. 

403, 649 

Knight D. Boston, 159 Mass. 551, 

333, 436, 437 
Ladd V. Rogers, 11 Allen, 209, . 503 
Lamphere v. Grand Lodge, 47 

Mich. 429, . . . .580 

Lane V. Commonwealth, 161 Mass. 

120, 460 

Leisy v. Hardin, 135 U. S. 100, . 168 



Loan Asso. v. Topeka, 20 Wall. 

655, 237 

Lowell V. Boston, 111 Mass. 454, 

237-239 

V. Oliver, 8 Allen, 247, 237, 239 

Lucena V. Craufurd, 2 Bos. & P. 

(N. R.) 300, . . . .546 
Marbury v. Madison, 1 Cranch, 

137 141, 142 

Massachusetts Ship Canal Co. v. 

Shaw, 170 Mass. 572, . 353 

Mead v. Acton, 139 Mass. 341, 237, 495 
Miller v. Ewer, 27 Maine, 509, . 186 

V. Horton, 152 Mass. 540, 

239, 533 

V. Post, 1 Allen, 434, . . 503 

Minotv.Winthrop, 162 Mass. 113, 289 
Moore v. Quirk, 105 Mass. 49, 563, 566 
Morse v. Stocker, 1 Allen, 150, . 237 
Mount Auburn Cemetery v. Cam- 
bridge, 150 Mass. 12, 
Nashua & Lowell R.R. Corp. v. 

B. & L. R.R., 136U. S. 356, . 
Nason v. Dillingham, 15 Mass. 

170 

New Haven & Northampton Co. 

V. Hayden, 117 Mass. 433, 
New York v. Miln, 11 Peters, 102, 
Northampton v. Plainfleld, 164 

Mass. 506, .... 

No well V. Wright, 3 Allen, 166, . 
O'Hare v. Jones, 161 Mass. 391, . 
Opinion of Justices, 124 Mass. 

596, .... 

132 Mass. 600, 

138 Mass. 601, 

150 Mass. 592, 

166 Mass. 589, 595, 

11 Pick. 539, 

Ormsby v. Vermont Copper Min- 
ing Co., 56 N. Y. 623, 
Passenger Cases, 7 How. 283, 
Pease v. Smith, 24 Pick. 122, 
People ex rel. N. E. Dressed Meat, 

etc., Co. V. Roberts, 155 N. Y. 

408, 

Union Pacific Tea Co. v. 

Roberts, 145 N. Y. 375, . . 585 



329 
132 
342 

342 

168 

344 
344 
342 

465 
451 
354 
237 
409 
465 

186 
168 
342 



585 



CASES CITED. 



XXI 



People V. Bowen, 21 N. Y. 517, . 169 
V. Chicago Gas Trust Co., 

130 Illinois, 268, . .657 
V. Roff, 3 Parker (N. Y.), 

216 295 

V. Salem, 20 Mich. 452, . 237 

V. N. Y. Floating Dry Docli 

Co.,92N. Y. 487, . . .585 

V. Wemple, 129 N. Y. 543, . 585 

Phillips V. Boston, 150 Mass. 491, 342 
Plymouth v. "Wareham, 126 Mass. 

475, 520 

Presser v. Illinois, 116 U. S. 252, 553 
Quinn v. Middlesex Elec. Light 

Co., 140 Mass. 109, . .417 

Eailroad Co. v. Harris, 12 Wall. 

65, 132 

V. Husen, 95 U. S. 465, . 168 

Railway Co. v. Auditor General, 

53 Mich. 79, ... . 133 
Roberts v. Reilly, 116 U. S. 80, 

223, 387 
Rogers V. Barker, 31 Barb. N. Y. 

447 

Ruggles V. Lesure, 24 Pick. 187, . 
Russell V. "Wellington, 157 Mass, 

100, 

Sawyer v. Davis, 136 Mass. 239, 
V. Board of Health, 125 Mass 

182, 

Sennott's Case, 146 Mass. 489, 
Seven Hickory v. Ellory, 103 

U. S.423, 170 

Sharpless v. Mayor of Phila., 21 

Penn. St. 147 237 



296 
417 



649 
214 



214 
460 



PAGE 

Shively v. Bowlby, 152 U. S. 1, . 414 
Smith V. Dedham, 144 Mass. 177, 

24, 65 
Solomon v. Commissioners, 41 

Ga. 157, 170 

Spring V. Hyde Park, 137 Mass. 

554, 296 

Springfield v. Connecticut River 

R.R. Co., 4 Cush. 63, . . 481 
State V. Osakee, 14 Kan. 418, . 237 
Stone V. Howard Insurance Co., 

153 Mass. 475 209 

Sturbridge v. Holland, 11 Pick. 

459, 465 

Taft V. Adams, 3 Gray, 126, . 450 
Talbot V. Hudson, 16 Gray, 417, . 225 
Tristu. Cliild, 21 Wallace, 441, . 18 
United States v. Heth, 3 Cranch, 

399, 290 

V. Le Baron, 19 How. 73, . 141 

V. Railroad Co., 17 Wall. 

322, 567, 572 

Upham V. Marsh, 128 Mass. 546, 342 
Watuppa Reservoir Co. v. Mac- 
kenzie, 132 Mass. 71, . . 296 
Wellington v. Belmont, 164 Mass. 

142, 585 

West Newbury v. Bradford, 3 

Met. 428, 521 

Whiting v. Sheboygan, etc., R.R. 

Co., 25 Wis. 167, . . .237 
Wilson V. Hill, 3 Met. 66, . . 346 
Winslow V. Giflford, 6 Cush. 327, 404 
Worcester v. Western R.R., 4 

Met. 564, 607 



OPINIONS 

OF 

ALBERT E. PILLSBUEY, ATTOENET-GENEKAL. 



Insurance, — Admission of Foreign Company. 

The Insurance Commissioner has authority to admit a corporation chartered 
under the laws of another State to tliis State to do the business of insur- 
ance, although by its charter it is authorized to do the business of insur- 
ance and other business, which is not insurance, in its own State. 

I have considered your communication of January 24, sub- Totheinsur- 

, • 1 I • 1 11 1 ance Commis- 

mittmg the question whether a corporation chartered by another sioner. 
State to transact the business of insurance and other business Februarys. 
recognized as insurance by the laws of its own State, and other 
business which is not insurance, is entitled to admission to 
Massachusetts to transact here a class of business recoo-nized 
by our law as insurance, while it is transacting in other States 
business not permitted here as insurance. 

Confining the inquiry, as I presume you intended, to the 
legal question whether such a company as you describe can 
lawfully be admitted to do business in Massachusetts as above 
stated, or, in other words, whether the Insurance Commis- 
sioner has power under the statutes to admit such a company 
to do such business, it must, in my opinion, be answered in 
the affirmative. 

Insurance, — Fraternal Beneficiary Organization, — Reserve 
Fund, — Deposit. 

The Treasurer of the Commonwealth is authorized to receive the deposit of 
the reserve fund of a fraternal beneficiary organization in lawful money 
in case such deposit must be drawn upon so soon that its conversion into 
the securities prescribed and their reconversion into cash would be diffi- 
cult or impracticable. 

The statute referred to in your inquiry of the 26th inst., To the 

. /. 1 /> . /> Treasurer. 

concerning the deposit of the reserve fund of certain frater- i89i 
nal beneficiary organizations (St. 1890, c. 341, § 1), must be ^«^j:^27. 



2 OPINIONS OF THE ATTORNEY-GENERAL. 

taken as designed to insure to the members of these asso- 
ciations an income upon their funds, as well as safety in their 
investment ; and so to require their investment in the specified 
interest-bearing securities, so far as possible. But in such a 
case as you describe, in which a deposit must be drawn upon 
so soon that its conversion into the prescribed securities and 
their reconversion into cash would be difficult or impracticable, 
the necessity of the case seems to require some modification 
of the rule ; and by a reasonable construction of the statute 
you are, in my opinion, authorized to receive such deposit in 
lawful money, but not in a certificate of deposit, even of a 
State depositary, unless you choose to take it at your own 
risk. So far as I am aware, these are depositaries only of 
"the public moneys." Pub. Sts., c. 16, § 55. --iThe funds 
here in question do not seem to be *' public moneys" in the 
sense of the statute. They belong to the members of these 
associations, and are held by you in trust for them ; and as 
you are authorized to receive money only from the necessity of 
the case, and only so far as the necessity extends, if you take 
a certificate of deposit you may be held to account for it as 
money in any event. 

Railroad Stock held by Commonwealth, — Exercise of Voting 

Power. 

The Governor and Council, or such committee as they may appoint, may 
exercise the power of the Commonwealth to vote upon any railroad 
stocks held by it. 

To the In reply to your inquiry concerning the voting power upon 

1891 the stock of the Fitchburg Railroad held by the Commonwealth, 

March2o. j havc to Say, that the right is limited by article 5 of the 

Articles of Consolidation of the Fitchburg Railroad Company 
and the Troy & Greenfield Railroad and Hoosac Tunnel, dated 
January 5, 1887, of which a copy is printed in the annual 
report of the Fitchburg Railroad Company, ending September 
30, 1887, a copy of which article 5 is as follows : — 

Article 5. The commou stock shall have no voting power until it 
shall have received dividends for two consecutive years amounting to 



A. E. PILLSBURY, ATTORNEY-GENERAL. 

not less than four per cent, per annum, excepting that it shall have 
the right to vote on an equality with the preferred stock upon any 
question of issuing more preferred or common stock, and also upon 
any question of leasing any part of the consolidated road, or of hiring 
or uniting with any other road. 

The voting power upon any railroad stocks held by the Com- 
monwealth may properly be exercised by the Governor and 
Council, or such committee as they may appoint; and I under- 
stand that this has been the usual custom. 



State Director, — Fitchburg Railroad. 

A director of Boston & Maine Railroad may be State director of Fitchburg 

Railroad Company. 

In repl}' to your inquiry under date of March 24, I have to Tothe 

.. 1 . 1 1 ' j-i'i'ij Cxoveri 

say that in my opinion there is no legal incompatibility between i89i 
the offices of director of the Boston & Maine Railroad and State ^ '"""^ ^ ° 
director of the Fitchburg Railroad Company. 



ernor. 



Australian Ballot Law, — Inserting Names of Candidates upon 

AND MARKING OFFICIAL BaLLOTS, PoWER OF HoUSE OF REPRE- 
SENTATIVES. 

If a voter pastes on the official ballot at the end of the list of candidates a 
printed slip bearing the name of a candidate, and makes the x mark in 
the space at the right of such name, the ballot should be counted for the 
candidate whose name is thus pasted on. 

Where the official ballot bears only one name, and some official ballots are 
cast bearing such name and none other, but without the x or other mark 
thereon, they are to be counted for such candidate. So also if there is 
no X mark in the proper place, but x marks are made in various other 
places on the face of the ballot. 

Where the official ballot bears only one name, and a printed slip bearing 
another name is pasted thereon, and no x or other mark is made on the 
ballot, it cannot be counted for either candidate. In case there are more 
candidates than one, the voter must indicate his choice by the x mark. 

Where the official ballot bears only one name, and the printed name of another 
candidate is pasted in the space with such name, but not covering it, and 
the X mark is placed in the space to the right of both names, such ballot 
can be counted for either candidate according to the voter's choice, if 
that can be determined. If the printed name pasted on covers the other 



4 OPINIONS OF THE ATTORNEY-GENERAL. 

name, and the x mark is in the proper place, the ballot can be counted 

for the candidate whose name is thus affixed. If it only partially covers 

the other name, the ballot can be counted for the voter's choice, if that 

can be determined. 
Affixing a name to a ballot is competent evidence that the voter intended to 

vote for the person whose name is thus affixed. 
The House of Representatives has absolute power under the Constitution to 

"judge of the returns, elections and qualifications of its own members." 
It can count ballots found in the ballot box and marked " cancelled," when 

it appears from the marks upon the ballots that they have been through 

the official registering ballot box. 

of°thl^Hou8e o^f ^^^ compliance with the request of the honorable House of 
ueiM-esentatives. j^^pj.gggj-j^jj^j^.gg "^ ^^^ Order of March 23, I return my opinion 
March 31. upon tlic tcu (juestious of law submitted in the order : — 

FiJ'st. — A voter can legally " insert " or " fill in," in the 
space left at the end of the list of candidates on the official bal- 
lot, the name of the candidate for whom he would vote, by 
pasting thereon a printed slip bearing the name of such candi- 
date and making the X mark in the space to the right of such 
name so pasted on the official ballot, and such ballot should be 
counted for the candidate whose printed name is thus pasted 
on. The blank space is as appropriate to the reception of a 
pasted slip as of a written name, and the language of the 
statute, to "insert" or "fill in" the name, applies as well to 
the one case as to the other ; and it must be presumed that the 
Legislature was aware of the general use of " pasters," so 
called, and did not intend to forbid their use by provisions 
which, taken as they read, clearly permit it. 

Second. — At a special election for Representative to the 
General Court, where the official ballot bears only one name, 
and some official ballots are cast bearing such name and none 
other, but without any X or other mark on such ballots, the 
ballots so cast can be counted for such candidate. In such a 
case, which would very rarely arise, there is no " choice " of the 
voter, in the sense of the statute, to be indicated by the statutory 
mark. "Choice" implies a selection of one out of two or 
more names ; and if the ballot bears but one name there is 
nothing upon which this right of choice is to be exercised. 
Any other construction would deprive the act of the voter in 
such a case of all significance or legal effect, and this result 



A. E. PILLSBURY, ATTORNEY-GENERAL. 

is to be avoided if possible. But in my opinion, as will 
appear below, this applies only to a l)allot bearing but a 
single name. 

Third. — At a special election for Representative to the 
General Court, where the official ballot bore only the name of 
one candidate, and the printed name of another candidate had 
been pasted in the blank space left at the end of the list of 
candidates, but without an X mark or other mark in the space 
at the right of either name (or elsewhere upon the ballot, as I 
understand the question), such ballot cannot be counted for 
either candidate. This involves the important and difficult 
question how far the statutory requirement of the mark, as the 
means of designating the voter's choice, is mandatory. The 
form of the provision (St. 1889, c. 413, § 23), that the voter 
" shall prepare his ballot by marking in the appropriate margin 
or place a cross (X) opposite the name of the candidate of his 
choice," does not settle the question ; as such language, though 
in form mandatory, may be and often is construed as directory, 
and doubtless is to be so construed in various other provisions 
of this act. But there are other general considerations which 
seem to determine the matter. The great purpose of the act 
is, unquestionably, to promote the purity of the ballot, by 
insuring a free and intelligent expression of the voter's choice, 
in secret and on the spot ; and the intent of the act, so far as 
it concerns the question now under consideration, seems clearly 
to be that he shall indicate his choice by the affirmative act of 
marking the ballot, under the circumstances of secrecy and 
security against interference or molestation with which the act 
surrounds him at the polls ; and, while it is a general rule of 
election law that statutes in derogation of the right to vote are 
ordinarily to be construed liberally in favor of the exercise of 
the right, it is also a settled rule that a statute is to be con- 
strued, so far as may be, in the light and in the direction of its 
leading and obvious purposes. It is to be observed also that 
the act imposes many other express restrictions upon the right 
to vote which are obviously peremptory, and which, though in 
derogation of the right, the Legislature must be supposed to 
have considered essential to the main purposes of the act. 



OPINIONS OF THi: ATTORNEY-GENERAL. 

There is no direct judicial authority, so far as I am aware, 
upon the question whether the requirement of the mark is 
mandatory ; l)ut in the cases in our House of Representatives, 
in the English cases under the ballot act of 1872, the material 
provisions of which are substantially like our own, in the 
Scotch and Canadian cases, and all others which have come to 
my notice, it seems to be assumed that the requirement of a 
mark of some sort, sufficient to indicate the voter's choice, is a 
peremptory requirement, though there is considerable liberality 
of construction as to the position and character of the mark. 
An argument to the contrary may perhaps be drawn from § 26, 
which contains the only express prohibitions in the act against 
counting ballots, among which it is provided that, " if a voter 
marks more names than there are persons to be elected to an 
office, or if for any reason it is impossible to determine the 
voter's choice for any office to be filled, his ballot shall not be 
counted for such office." It might be said that this makes the 
possibility of determining the voter's choice, by any means, a 
test of the validity of the vote ; but this construction would 
open the door to many irregularities which the act seems 
carefully designed and intended to prevent and to forbid; and 
under an act of this general character it does not necessarily 
follow, and it does not seem a reasonable construction, that 
every vote shall be counted if it is possible by any method to 
determine the voter's choice, for the single reason that the 
statute forbids a vote to be counted if it is impossible to deter- 
mine the voter's choice ; especially as there are many other 
cases to which this language may be applied consistently with 
the strict observance of the requirement to mark the ballot. 
And the argument from § 26 appears to me to be met by the 
.provision of § 23, that, even when a voter inserts the name of 
a candidate which is not printed upon the ballot, thereby, as it 
would seem, indicating unmistakably his choice for that office, 
the X mark is still to be made opposite the name so inserted. 
From this it is clear that the act does not make or intend to 
make the possibility of determining the voter's choice the sole 
or sufficient test of the validity of the vote. It appears to me 
a more reasonable construction, keeping in view the general 



A. E. PILLSBURY, ATTORNEY-GENERAL. 

intent of the act, to hold that this provision was intended to 
mean only that the vote is not to be counted if it is impossible 
to determine the voter's choice by the means and in accordance 
with the methods prescribed by the act. 

Fourth. — At a special election for Representative to the 
General Court, where the official ballot bears only one name, 
and some ballots are cast bearing such name and none other, 
and there is no X mark in the proper place but X marks are 
made in various other places on the face of the ballot, such 
ballots so marked can be counted for such candidate, for the 
reasons above stated in answer to the second question ; as in 
such a case the person whose name alone is on the ballot must 
be taken to l)e the voter's choice, irrespective of any mark. 
I understand this to cover also the second branch of the fourth 
question. But of a mark on the back or outside of a ballot it 
is sufficient to say that such mark is not a mark upon the ballot 
in the sense of the act, nor is it easy to see how such a mark 
can possibly determine the voter's choice. 

Fifth. — At a special election for Representative to the 
General Court, where the official ballot bears only one name, 
and the printed name of another candidate is pasted, not in the 
space at the end of the list of candidates, but in the space 
where the name of the regularly nominated candidate is 
printed on the official ballot but not covering such name, and 
the X mark is placed in the space to the right of both names, 
such ballots can be counted for either candidate, according to 
the voter's choice, if it is possible to determine his choice ; and 
it is a settled rule of election law that the writing or otherwise 
inserting or affixing a name to or upon a ballot is competent 
evidence to show that the voter intended to vote for the person 
whose name is so inserted or affixed. 

Sixth. — At a special election for Representative to the 
General Court, where the official ballot bears only one name, 
and the })rinted name of another candidate is pasted, not in the 
space at the end of the list of candidates, but over the name of 
the regularly nominated candidate, with the X mark in the 
proper space, such ballot can l)e counted for the candidate 
whose name is thus affixed to such ballot, under the circum- 



OPINIONS OF THE ATTORNEY-GENERAL. 

stances and for the reasons above stated in the answers to the 
first and fifth questions. 

Seventh. — At a special election for Eepresentative to the 
General Court, where the ofiicial ballot bore only the name of 
one candidate, and the printed name of another candidate is 
pasted, not in the space at the end of the list of candidates, 
but in the space wherein the name of the regularly nominated 
candidate appears, and such name of such regularly nominated 
candidate has been thereby partially obliterated, ))ut the X 
mark is in the proper space, such ballot can be counted for the 
candidate of the voter's choice, if that can be determined, under 
the circumstances and for the reasons last above stated. 

Eighth. — The provision of law with reference to the mark- 
ing of the ballot by the voter is so far mandatory as to require 
some mark upon the face of the ballot sufficient to make it 
possible to determine the voter's choice among several candi- 
dates for the office in question. This follows from the answer 
to the third question. The provision as to "insertion" or 
"filling in" of the name of any candidate whose name is not 
upon the official ballot for whom the voter wishes to cast his 
ballot, in the blank space at the end of the list of candidates, is 
not mandatory. The blank space is provided for the con- 
venience of the voter ; and there is no express requirement of 
the act, and in my opinion there is none to be derived from it 
by construction, making the use of the blank space compulsory 
in such a case. 

Ninth. — The House of Representatives, or its election com- 
mittee, subject to the approval of the House, has power to 
determine the evident intent of the voter from an inspection 
of the ballot, where the strict letter of the law as to affixing or 
fillino; in the name or markins; the ballot has not been com- 
plied with; as by the Constitution, c. 1, § 3, art. 10, the 
House of Representatives " shall be the judge of the returns, 
elections and qualifications of its own members ; " which pro- 
vision is held to give the House absolute power over the 
subject. But it may be proper to add that the House of 
Representatives of Massachusetts has been accustomed in such 
cases to follow the rules of law. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 

Tenth. — The House of Eepresentatives, or its election com- 
mittee, subject to the approval of the House in the exercise of 
its constitutional power, can count ballots found in the ballot 
box and marked " cancelled," when it appears from the marks 
upon the ballots that they have been through the official regis- 
tering ballot box. But, if the question is intended to be 
whether such ballots can lawfully be counted without resort to 
the arbitrary powers of the House under the Constitution, it 
calls for further answer. I assume that the question refers 
only to ballots which w^ould be entitled to be counted except 
for the mark "cancelled." There is no express prohibition in 
the act against counting a ballot marked " cancelled," but this 
mark indicates some irregularity about the ballot wdiich should 
make it a subject of further inquiry. It is a settled rule of 
election law that mistake or fraud of the election officers shall 
not invalidate a vote lawfully and regularly cast ; and this is a 
salutary rule, in the interest of the public no less than of the 
voter. As it is difficult to suppose that the mark " cancelled " 
would be put upon the ballot l)y the voter himself, and as the 
reasonable inference, therefore, is that, if the ballot was 
regularly cast, the mark w^as placed upon it by the mistake or 
fraud of some election officer, in which case it is entitled to be 
counted, the case calls for further investio:ation into the regu- 
larity of the ballot, and the circumstances under which the 
mark of cancellation was placed upon it. 



Prisoner, — Commutation op Sentence. 

Pub. Sts., c. 222, § 20, authorizes the commutation of the sentence of a pris- 
oner sentenced for different terms in different institutions on the basis of 
the aggregate of the sentences. 

In compliance with the request of Your Excellency and the To the 
Honorable Council for my opinion upon the questions sul)- iggi 
mitted in the vote of April 15, I have the honor to say that in -^p^I^J* 
my opinion the sentence of a prisoner in a house of correction, 
who is, upon the expiration of the sentence he is then serving, 
to be committed to another institution to serve an additional 



10 OPINIONS OF THE ATTORNEY-GENERAL. 

sentence, can be commuted upon the basis of the aggregate of 
the sentences ; and that the same is true of a sentence to a 
house of correction awarded by the court to take effect on and 
after the expiration of a previous sentence to another institu- 
tion. The language of Pub. Sts., c. 222, § 20, is broad enough 
to inckide the case of sentences to different institutions ; and 
the reason of the statute seems to apply with as much force to 
that case as to the case of several sentences to the same insti- 
tution ; and the history of the legislation on the subject indicates 
that the provision was intended to apply to both. 



Hours of Labor in State Institutions, — Teachers. 

St. 1890, c. 375, does not prohibit tiie employment of labor in State institutions 
for more than nine hours a day, if such labor is contracted for and paid 
for by the hour. 

A teacher is neither a laborer, worliman nor mechanic, within the meaning of 
the statute. 

The words "laborers, worlimen and mechanics" are used in a teclinical and 
restricted sense in the statute, and do not apply to persons having powers 
and duties of an official character, distinct from ordinary employment or 



Govern r ^^^ compHauce with the request of Your Excellency and the 

1891 Honorable Council in the vote of April 22, I return my opinion 

" upon the three questions therein submitted : — 

First. — St. 1890, c. 375, does not prohibit the employment 
of labor in State institutions for more than nine hours a day, 
if such labor is contracted for and paid for by the hour. An 
examination of all the legislation upon this and kindred topics 
leads to the conclusion that the purpose and effect of this 
statute are to make nine hours' labor in a day by the persons 
therein named a compliance with an ordinary contract for lalior 
by the day or hy longer periods. This conclusion is strength- 
ened by the fact that the statute contains no express prohibition 
against employment or service for more than nine hours a day 
under any circumstances, such as is found in other recent 
statutes relatins: to the hours of labor : and that it can have 



A. E. PILLS BURY, ATTORNEY-GENERAL. 11 

comparatively little application to women or minors, to whom 
alone this prohibitory legislation has thus far been applied. 

Second. — Persons employed in instructing boys or girls, 
educationally or industrially, do not come under the act. 
They are teachers, and a teacher is neither a laborer, workman 
nor mechanic, in the sense in which these words are used in 
the statute. 

Third. — Upon such inferences as I can draw from the form 
of this question as to the actual employment and duties of the 
various officers or employees referred to therein, it seems clear 
that the statute does not apply to any of them, except possibly 
to the carpenter, engineer, watchman and assistant farmer. 
They are all styled " officers ; " and if they are in fact officers 
of the institution, having powers or duties of an official char- 
acter distinct from ordinary employment or service, the statute 
does not apply to any of them, as it clearly is intended to apply 
to labor rather than to official service. But, if the carpenter 
is employed merely as a working mechanic, the statute, in my 
opinion, applies to him. The engineer I take to be the man 
in charge of an engine, and not a professional civil engineer. 
If the latter, the statute clearly does not apply to him ; nor, in 
my opinion, does it apply to him in the former capacity; nor, 
for the same reasons, to the watchman. If the assistant farmer 
is, as I presume, the deputy of the head farmer, having in his 
absence or by delegation from him or otherwise, duties of 
supervision, oversight or control, and is not merely a farm 
hand, the statute does not apply to him. The words " labor- 
ers, workmen and mechanics " have acquired to a certain extent 
in recent legislation a technical meaning ; and while all persons 
engaged in any kind of labor may broadly be called laborers, 
and all persons engaged in mechanical labor mechanics, and 
while any mechanic is in this broad sense a workman and a 
workman a laborer, it is clear that the words were used in the 
statute in a more restricted sense, to distinguish these particular 
classes from each other and from other classes of labor ; and 
that the statute should not be construed to apply to persons 
rendering service which does not naturally fall within the 
description of the words so used. 



12 OPINIONS OF TIIP: ATTORNEY-GENERAL. 

It may be added, also, that aii}^ other construction would be 
likely to lead to practical difficulties in the application of the 
statute, Avhich the Legislature probably did not intend. 



May 20. 



Contract, — Claim against Commonwealth, — Appropriation, — 
Champerty, — Lobbying. 

On the facts disclosed, the claim of Theodore E. Davis against the Common- 
wealth for a compensation of two per centum of the amount received by 
the Commonwealth from the United States as repayment of the direct tax 
imposed upon Massachusetts by the United States under the act of Con- 
gress of August 5, 1861, is valid, and may be paid from the amount 
received without any further appropriation or action by the Legislature. 

Claims which are not and are not to be the subject of litigation, or of suit in 
court, are not within the rule against champerty, and contracts for the 
prosecution of such claims for a percentage of the amount collected are 
not void for champerty. 

The legislative lobbying which is contrary to public policy is the bringing to 
bear upon members of the Legislature of personal, secret, sinister or 
corrupt influences or inducements, to control or aflPect their official con- 
duct. 

To the In compliance with the request of Your Excellency and the 

Governor. '■ ^ ■' 

1891 Honorable Council, I return my opinion upon the various 

questions submitted to me, arising out of the claim of Theodore 
E. Davis upon the Common wealtli for a compensation of two 
per centum of the amount received by the Commonwealth from 
the United States as repayment of the direct tax imposed upon 
Massachusetts by the United States under the act of Congress 
of August 5, 1861. 

The first question submitted is whether, under Res. 1888, 
c. 39, and the contract in pursuance thereof made between the 
Governor and Council and the claimant Februaiy 5, 1890, the 
auditor has a right to allow and the Governor and Council to 
approve the payment of the claim except out of the amount 
received by the Commonwealth from the United States. 

The resolve provided that the " Governor and Council are 
hereby authorized to employ the agent of the Commonwealth 
for the prosecution of war claims against the United States, to 
prosecute also the claim of the Commonwealth for a refund of 
the direct tax paid under act of Congress, approved August 5, 



A. E. PILLSBURY, ATTORNEY-GENERAL. 13 

in the year 1861," and of certain other claims, " also to fix his 
compensation, which shall be paid out of any amount received 
therefrom." Under the authority of this resolve the Governor 
and Council, under date of February 5, 1890, passed the follow- 
ing order : — 

" Ordered, That Theodore E. Davis of Washington, D. C, 
agent of the Commonwealth for the prosecution of w'ar claims 
against the United States, be and he is hereby authorized to 
prosecute also the claim of the Commonwealth for a refund of 
the direct tax, paid under act of Congress approved August 5, 
in the year 1861 ; and that his compensation be two per centum 
of any amount he may collect, which shall be paid out of the 
proceeds received therefrom and paid into the treasury of the 
Commonwealth, the same to be in full for compensation and 
expenses on account of said claim. This order is adopted 
under the authority of chapter 39 of the Resolves of 1888." 

As the resolve contemplates, and the contract provides, that 
the compensation of the claimant shall be paid out of the pro- 
ceeds of the claim of the Commonwealth against the United 
States, and as the Legislature has made no other provision for 
payment of his compensation, I am of opinion that, in the 
present state of the case, the auditor has no right to allow or 
the Governor and Council to approve the payment except out 
of the amount received by the Commonwealth from the United 
States. 

The next inquiry is, " whether such payment is not expressly 
forbidden by the trusts imposed by the act of Congress, and 
accepted by the Commonwealth in its resolve of 1891 ; and 
whether, therefore, if the claim of Davis is to be paid, it does 
not require an appropriation or further action by the Legislat- 
ure." 

The act of Congress referred to is the act of March 2, 1891, 
refunding to the States the amount of the direct tax ; which 
provides in § 3 that ' ' where the sums or any part thereof 
credited to any State, Territory or the District of Columbia 
have been collected by the United States from the citizens or 
inhabitants thereof, or any other person, either directly or by 
sale of property, such sums shall be held in trust by said State, 



14 OPINIONS OF THE ATTORNEY-GENERAL. 

Territory or the District of Columbia for the benefit of those 
persons or inhabitants from whom they were collected, or their 
legal representatives." It further provides that the money 
shall not be paid to any State until its Legislature shall have 
accepted by resolution " the suras herein appropriated and the 
trusts imposed," in satisfaction of its claims against the United 
States on account of the tax, "and shall have authorized the 
Governor to receive said money for the use and purposes 
aforesaid;" and that "claims under the trust hereby created 
shall be filed with the Governor of such State or Territory, 
and the commissioners of the District of Columbia respectively, 
within six j^ears after the passage of this act ; and all claims 
not so filed shall be forever barred, and the money attriluitable 
thereto shall belong to such State, Territory or the District of 
Columbia, respectively;" and, further, that "no part of the 
money shall be paid out by the Governor of any State or 
Territory, or any other person, to any attorney or agent under 
any contract for services noAV existing or heretofore made 
between the representative of any State or Territory and any 
attorney or agent." The Commonwealth received the payment 
under Res. 1891, c. 46, providing that "the Commonwealth 
further accepts all trusts imposed upon it by the provisions of 
said act, and the Governor is hereby authorized to receive the 
money for the use and purposes aforesaid." 

The direct tax was imposed by the act of Congress of 
August 5, 1861, upon real estate in the several States, for the 
purpose of raising the sum of $20,000,000 for the use of the 
government ; and the act provided for a system of assessment 
and collection of the tax by ofiicers of the United States, for 
which purpose each State was to be divided into assessment 
and collection districts, and the real estates therein were to be 
valued and the tax apportioned, assessed, collected and paid 
into the treasury of the United States directly by ofiicers of 
the United States to be appointed under the act, which appor- 
tioned to Massachusetts as its share of the tax the sum of 
$824,581.33. 

But the act never had this operation in Massachusetts. By 
Res. 1862, c. 98, the Legislature appropriated out of the 



A. E. PILLSBURY, ATTORNEY-GENERAL. 15 

treasury the entire amount due from Massachusetts under the 
act of Congress, and paid it directly to the United States in 
commutation of the tax imposed upon the real estate in the 
Commonwealth ; so that the individual owners of real estate 
in Massachusetts were never assessed the tax under the act, 
and never had occasion to pay and never paid it. 

It is clear, therefore, that the trust imposed upon the States 
by the act of Congress of March 2, 1891, to hold the money 
in trust for the citizens or inhabitants who paid the tax, and 
their representatives, for the term of six years, during which 
they might file with the Governor their respective claims 
therefor, does not attach to this fund. The Commonwealth, 
having paid the entire tax out of the public treasury, received 
the repayment and holds it to its own use. The act of Con- 
gress expressly provides that any part of the fund not ab- 
sorbed by claims of citizens shall belong to the State. And 
it seems that the Legislature entertains this view of the subject, 
as, by St. 1890, c. 335, the Legislature appropriated to the 
school fund any moneys thereafter to be received from the 
United States " the disposition of which is not otherwise pro- 
vided for ; " and, while this act was passed in advance and of 
course without knowledge of the terms of the act of Congress, 
March 2, 1891, the Legislature has taken no action toward 
any other disposition of the money ; and it is not suggested 
in any quarter, so far as I am aware, that any other disposi- 
tion is necessary, or that there is any doubt of the right of 
the Commonwealth to allow it to stand appropriated to the 
school fund, as provided by the act of 1890. 

It remains to consider whether payment of the claim is for- 
bidden by the provision of the act of Congress above quoted, 
that no part of the money shall be paid to any attorney or 
agent. In considering this, it is to be observed at the outset 
that "the use and purposes aforesaid," for which the act of 
Congress provided that the money shall be paid, and for which 
the Governor shall receive it and has received it under the act 
and our resolve of 1891, are only the reimbursement of the 
direct tax to the States, and the satisfaction of all claims upon 
the government on account of it ; and, therefore, that the pay- 



IG OPINIONS OF THE ATTORNEY-GENERAL. 

meiit of any part of it to an attorney or agent, or any other 
disposition which the Commonwealth may make of it consistent 
with the satisfaction of its claims and the claims of its citizens 
upon the government, is entirely consistent with the express 
uses for which the United States paid and the Commonwealth 
received the money. 

It is, to say the least, doubtful whether this provision is one 
of " the trusts imposed " by the act under which the Common- 
wealth accepted the payment ; as this expression naturally 
refers to the express trusts imposed upon the fund for the 
benefit of the citizens and inhabitants who paid the tax, as 
above stated. The provision forbidding payment to any at- 
torney or agent is not, in form, a trust, nor appropriate to 
create a trust ; and, if Congress it to be taken as having meant 
to include this provision as one of "the trusts imposed," it 
may well l)e for the single reason that, as the fund was repaid 
for the benefit of the citizens who originally paid it, and as 
their claims might absorb the entire fund, no part of it should 
be devoted to any other purpose unless and until the claims 
of the citizens were first fully satisfied. But, inasmuch as 
there are no citizens of Massachusetts who have any claim 
upon it, and as, therefore, there is no trust in the fund for 
their benefit, as pointed out above, this purpose of the pro- 
vision forbidding payment to any attorney or agent is as fully 
satisfied as the purpose of the express trust imposed upon the 
fund for the benefit of the citizens. I do not think the act of 
Congress should be construed to interfere with the disposition 
of the fund in the possession of the States further than is 
reasonably necessary to the purpose for which it was repaid 
to them ; and, whether or not the provision against payment 
to any attorney or agent may be deemed to lay any moral 
obligation upon the Commonwealth, which is not for me to 
determine, it has, in my opinion, no legal effect, under the 
circumstances of this case, to forbid or prevent any disposition 
of any part of the fund which the Commonwealth sees fit to 
make. I am informed that other States have already put this 
construction upon it, and have paid their agents out of the 
fund without doubt or question. And, as the resolve of 1888, 



A. E. PILLSBURY, ATTORNEY-GENERAL. 17 

under which the contract with the claimant was made, and the 
contract itself, expressly provide that his compensation shall 
be paid out of the proceeds of the collection ; and as the Legis- 
lature, in appropriating the money to the school fund hy St. 
1890, c. 335, expressly reserved any amounts "otherwise 
provided for," I am of opinion that the payment of the claim 
does not require any further appropriation or action by the 
Legislature. 

It becomes necessary, therefore, to inquire into the validity 
of the contract with the claimant and the legality of his claim, 
which is the subject of the other inquiry submitted by Your 
Excellenc}^ and the Council, It is suggested that the contract 
is or may be void for champerty. It is by no means certain 
that the rule against champerty can be or ought to be applied 
to the contract of a sovereign State, which clearly is not within 
the mischief against which the rule is directed. But I do not 
deem it necessary to consider this question, as in my opinion 
the rule does not apply to a contract for the prosecution 
of such a demand as that of the Commonwealth against the 
United States in this case. The offences of champerty and the 
maintenance of suits are of ancient origin, and are correlative 
to each other ; and the principle out of which they arise is that 
it is contrary to public policy, as tending to speculation and to 
vexation and oppression of debtors, that litigation should be 
maintained or promoted for a share of the proceeds, by those 
who have no other interest in it. But this relates to suits in 
court ; and an examination of the multitude of reported English 
and American cases on the subject shows that the doctrine has 
been applied only to judicial litigation, and discloses no case 
in which it has been applied to the prosecution of a claim of 
such character as that which was the subject of this contract. 
Here there was no suit, and no prospect or possibility of a 
suit. The tax was laid and collected by the United States in 
the exercise of its sovereign power, and no legal claim resulted 
to any person or to any State for the repayment of it. The 
distinction between claims which are or may be the subject of 
litigation, and other claims, is well recognized in the cham- 
perty cases ; and it is held that claims w^hich are not and are 



18 OPINIONS OF THE ATTORNEY-GENERAL. 

not to be the subject of litigation, or of suit in court, are not 
within the rule against champerty, and that contracts for the 
2:)rosecution of such claims are not open to this objection. 

The further question is raised whether the contract between 
the Commonwealth and the claimant may not be unlawful and 
void, or his claim invalid, within the doctrine of Trist v. Childy 
21 Wallace, 441, as contemplating or involving services in the 
nature of lobbying. It is a novel suggestion that the agent 
and representative of a sovereign State, appointed by her 
highest executive authority, in pursuance of an act of the 
Legislature passed for this sole purpose, to look after her 
interests before the Congress of the United States, is under 
any circumstances to be regarded as a lobbyist. But, without 
considering whether he can be so regarded, or whether there 
is any warrant for the imputation which the suggestion puts 
upon the Legislature which authorized this contract, or the 
Governor and Council who made it, it will be sufficient to state 
the law applicable to the contract here in question. It is 
recognized in all intelligent discussion of the subject, in the 
courts and elsewhere, that the mischief involved in the opera- 
tions of a legislative lobby is the bringing to bear upon mem- 
bers of the Legislature of personal, secret, sinister or corrupt 
influences or inducements, to control or aflect their official 
conduct. This is against public policy, and a contract or claim 
for such services cannot be enforced at law. It need not be 
said that this rule rests on the highest considerations of the 
public welfare, for the protection of the public against corrup- 
tion of the sources of law, and it is to be maintained and 
enforced ; but it is equally well recognized and settled that the 
proper prosecution of a claim or other legitimate interest 
before a legislative body is neither improper nor unlawful. 
It requires but little power of discrimination to distinguish 
between the open and proper communication of legitimate 
information respecting subjects of legislation, by those whose 
character and relation to the subject are fully disclosed, which 
must often be essential to intelligent action, and the influencing 
of legislation by personal appeal on personal grounds, or by 
deceit, or by other secret, sinister or corrupt influences. The 



A. E. PILLSBURY, ATTORNEY-GENERAL. 19 

judicial decisions that go furthest in support of the rule that a 
contract for lobbying services is unlawful and cannot be en- 
forced, including the cases of Trist v. Child and Frost v. 
Belmont, 6 Allen, 152, expressly recognize the propriety and 
legality of the proper prosecution of claims before Congress 
or other legislative bodies, and the validity of a contract 
therefor ; and the result of the cases seems to be that the test 
of the validity of the contract and the legality of the service, 
in any case, is in the methods pursued or contracted for. 

The contract of the Commonwealth with the claimant, who is 
said to be a member of the bar, and who was then and had been 
for several years the accredited agent of the Commonwealth at 
Washington for the prosecution of its claims against the United 
States, was " to prosecute also the claim of the Commonwealth 
for a refund of the direct tax paid under act of Congress ap- 
proved August 5, in the year 1861." It cannot be said that 
the prosecution of this claim by proper and legitimate means 
was unlawful, and therefore it cannot be said that the contract, 
upon its face, is invalid. If the claimant exceeded or departed 
from his contract, and resorted, in the prosecution of the claim, 
to any of the methods or practices justly stigmatized by the 
law as contrary to public policy and illegal, he cannot enforce 
his claim to compensation. But the questions of fact which 
may aifect the validity of the claim are not for me to consider, 
nor do the papers submitted to me by Your Excellency appear 
to furnish sufficient materials for a correct determination of 
them.* 

Insurance Company, — Increase op Capital. 

St. 1891, c. 195, does not require a life insurance company to increase its 
capital on engaging in the business of accident insurance, if its capital 
already equals or exceeds the sum of the two capitals required in the two 
classes of business respectively. 

I reply to your inquiry as to the effect of St. 1891, c. 195, Totheinsur. 

sr J J n. %! » » ance ComimB- 

upon the application of the ^^tna Insurance Company for ^ioner. 
authority to engage in the business of accident insurance, at May 25. 
more length than would otherwise be necessary, in view of 

* Affirmed in Davis v. Commonwealth, 164 Mass. 241. 



20 OPINIONS OF THE ATTORNEY-GENERAL. 

some expressions of two of my predecessors upon a similar, 
though not the same, question. 

The statute of 1891, so far as material to the present case, 
re-enacts St. 1887, c. 214, § 80, forbidding a foreign insurance 
company to do more than one kind of business within the Com- 
monwealth, and St. 1889, c. 356, providing that a foreign or 
domestic accident insurance company may take up employers' 
liability insurance ' ' by increasing its capital to the amount 
now required ]>y law as the capital of such employers' liability 
insurance company ; " and adds a new provision, that any 
foreign or domestic company doing only life insurance within 
the Commonwealth may take up accident insurance "by 
increasing its capital to the amount now required of two 
separate companies engaged in either one of these two classes 
of business ; " and re-enacts the concluding provision of the 
statute of 1889, that " no company now or hereafter admitted 
shall be allowed to transact any two of such classes of business, 
unless it possesses an aggregate capital equal to that required 
of two separate companies engaged in either of these classes of 
business." 

The present question is, whether a life company, having at 
the time of its application a capital equal to or exceeding the 
sum of the two capitals required in its original business, and 
in the business of accident insurance which it desires to add, 
respectively, must actually increase its capital upon taking up 
the new business, or whether the law is satisfied by its original 
possession of a capital equal to the sum of the two separate 
capitals, so that no actual increase is necessary. 

Taking the provision for increase of capital literally, it can- 
not be intelligibly applied to the case of a company having at 
the time of its application a capital equal to or exceeding the 
sum of the two capitals required in the two classes of business 
respectively. The requirement is that the capital shall be 
increased " to the amount now required of two separate com- 
panies engaged in either one of these two classes of business ; " 
and this requirement cannot be applied to the company in 
question, as it needs no increase of its capital to carry it up 
<* to the amount now required of two separate companies," etc., 



A. E. PILLSBURY, ATTORNEY-GENERAL. 21 

and any increase of its capital would necessarily carry it beyond 
that amount. Another difficulty is immediately encountered 
in undertaking to apply the requirement to such a company, as 
the statute gives no measure of the required increase of capital, 
except that it shall be "to the amount now required of two 
separate companies," etc., which plainly calls for no increase 
at all by a company having already a capital equal to the sum 
of the two separate capitals. If it must necessarily increase 
its capital at all, there is no means of knowing what amount 
should be added. If it were possible to read the requirement 
thus, " by increasing its capital &?/ the amount now required 
of the two separate companies," etc., as in my opinion it is not, 
but which would have to be done in order to get at any measure 
of the required increase in such a case, we should be involved 
in the difficulty, which amounts to an absurdity, of requiring 
a company having at the time of its application a sufficient 
capital for the one class of business, to add on taking up the 
other class the amount required of both. That is to say, a life 
company having a capital of $200,000, upon taking up acci- 
dent insurance, for which the requirement is $200,000, would 
have to add $400,000, making it necessary for such a com- 
pany to have a capital of $600,000, to do the business which 
two separate companies can do upon an aggregate capital of 
$400,000. This is not a reasonable construction, and is not 
to be adopted if another reasonable construction is open ; and 
the concluding provision of the statutes of 1889 and 1891 clearly 
indicates the purpose of the Legislature to require only that a 
company transacting the two classes of business shall possess 
a capital equivalent to the sum of the tw'o capitals required for 
each respectively. This concluding provision of the two acts is 
designed to require the companies to keep up permanently the 
amount of capital wdiich they are required by the previous pro- 
visions of the two acts to have, or to acquire, on taking up the 
additional business ; and it seems sufficiently clear, from this 
provision and from the considerations suggested above, that 
the purpose of the Legislature was, and the effect of the act is, 
only to require the possession of the aggregate capital at the 
time of beginning and throuo-hout the continuance of the new 



22 OPINIONS OF THE ATTORNEY-GENERAL. 

business, and not to require an actual increase by a company 
possessing a capital equivalent to the two capitals at the time 
of its application. The other construction would give the 
statute a very unequal operation, as illustrated above ; and it 
may be still further illustrated liy the case of the present appli- 
cant, whose capital is $1,250,000, but which would be required, 
if it must actually increase its capital, to have a permanent 
capital in excess of that amount, as a condition of doing the 
business which other companies may do upon a capital of 
$400,000. 

The only suggestion which has been made or has occurred 
to me which even appears to be inconsistent wath this con- 
struction, is that the Legislature may have considered that 
a company engaged in one kind of business, wnth the capital 
required for that business, may have or is liable to have out- 
standing as many risks of that class as ought to be carried 
against that amount of capital, and so must ])e taken to have 
required an actual addition to the capital upon taking up a new 
class of business. But this suggestion appears to me to be 
fully met by the fact that there is no necessary legal relation 
or proportion between the amount of capital and the amount 
of risks, and that all insurance companies, doing whatsoever 
business, are required to have and to keep up a reserve or 
guaranty fund, whatever it may be called, w^hich must bear a 
definite proportion to the risks, and which must l)e increased 
as the risks increase, and which is really the fund relied on by 
the law to meet liabilities. 

You have called my attention to the fact that in 1879 At- 
torney-General Marston ruled that, under St. 1873, c. 182, a 
fire company desiring to add marine insurance must actually 
increase its capital. I must take that ruling as made only in 
view of the particular case then in question, the facts of which 
are not disclosed ; as Mr. Marston says in the same opinion that 
the requirement of the statute of 1873 does not apply to com- 
panies whose capital was originally fixed at $300,000 or more, 
which was the amount of the increased capital required by that 
act ; and this statement indicates that he would have taken the 
same view of the statute now in question as that which I have 



A. E. PILLSBURY, ATTORNEY-GENERAL 23 

stated above. If the opinion of Attorney-General Waterman, 
of January 29, 1890, is to be taken as indicating a contrary 
view, which is not clear, I cannot follow it. 

All the reasons of the statute appear to be satisBed by con- 
struing it to require only that a company doing the two kinds 
of business shall possess an aggregate capital equal to the sum 
of the two capitals required by the two kinds of business re- 
spectively ; and, as this construction is more readily open 
upon the terms of the statute itself, and furnishes an intelli- 
gible and uniform rule, and as any other would lead to great 
practical difficulties and inequalities of operation, I am of 
opinion that it is to be so construed, and that the company 
whose application is now in question is not required to in- 
crease its capital in order to engage in the business of accident 
insurance. 

The history of the legislation on the subject confirms this 
conclusion. The earlier statute of 1873 was undoubtedly 
drawn in contemplation of the fact that, by St. 1872, c. 375, 
to which it referred, the required capital of a fire company was 
less than the required capital of a marine company ; and it 
was, therefore, natural to use the expression "shall have in- 
creased its capital " in providing in 1873 for the addition of 
marine business to fire business, and this expression has prob- 
ably been borrowed from the earlier statute in the statutes of 
1889 and 1891, without much thought of its necessity or appro- 
priateness to the purpose in view. But it is clear that the 
statute of 1873 intended to require nothing more than that a 
company doing marine business should possess the larger 
capital required for that business as a condition of entering 
upon it, whether it was doing also a fire business or not, as 
the statute of 1872 permitted any company to do both kinds 
of business, if it possessed the larger capital necessary to 
marine business. 



July 21. 



24 OPINIONS OF THE ATTORNEY-GENERAL. 



Municipal Indebtedness Act, — Treasurer of Commonwealth. 

The Treasurer of the Commonwealth should not loan money to a city on an 
application which does not clearly show that the city has complied with 
all the requirements of Pub. Sts., c. 29, relative to municipal indebted- 
ness. 

T?eawrer Upoii your I'equest to be advised upon the application of the 

1891 city of Holyoke for a loan, it does not appear to me that you 

have such information as you need. The municipal indebted- 
ness act (Pub. Sts., c. 29) prohibits the incurring of any debts 
by cities and towns " except in the manner of voting and within 
the limits as to amount and time of payment" therein pre- 
scribed. Section 8 limits the time within which certain 
municipal debts shall be payable, and I understand that this 
case is within the ten-year class. It is reasonabh^ evident, 
from § 14, cl. 2, from § 23, and from other provisions of the 
act, that the limitation is intended to run from the original 
contraction of the debt, and not to be extended by renewal. 
The copy of the order sent you by the treasurer does not show 
that it was adopted by " two-thirds of all the members of each 
branch," or that it was approved by the mayor, as required 
by § 7 ; and, while it shows upon its face that the new notes 
are or may be issued in renewal of former notes, it does not 
show for what purposes or in what amounts or at what times 
the original indebtedness was incurred. And it does not seem 
to me, for several reasons, that the letter of the treasurer is 
sufficient to meet this difficulty. 

It is provided by § 16 that "the restrictions of the preced- 
ing sections shall not exempt a city or town from liability to 
pay debts contracted for purposes for which it may lawfully 
expend money." But the debt now sought to be contracted is 
a debt for borrowed money ; and, under the very strict con- 
struction put upon the act by the supreme court in the case of 
Agawam Bank v. South Hadley, 128 Mass. 503, it seems to 
be necessary to the validity of such a debt that all the requi- 
sites to the borrowing power established by the act be strictly 
complied with ; and this view seems to be affirmed in the latter 
case of Smith v. Dedham^ 144 Mass., p. 179. If it is not 



A. E. PILLSBURY, ATTORNEY-GENERAL. 25 

absolutely necessary, it is certainly desirable, that it shall 
appear on the face of the order that they have been complied 
with ; and it is unsafe to make a loan under circumstances 
which indicate, as in this case, that some of the requirements 
may not have been fulfilled. 

If the new notes are renewals of former loans, it is not clear 
that they are within the prescribed limit of time. Ii they are 
new debts, as indicated by Abbott v. JSForth Andover, 145 
Mass. 484, all the conditions of the borrowing power must be 
strictly fulfilled, to make the lender safe under the doctrine 
of the court. And it is legally possible that they may be 
subject to the requirements applicable to both. 

It is hardly necessary to say that these suggestions do not 
imply any doubt of the good faith of the city in this case, or 
any doubt that the city will pay any money which it may 
borrow from the Commonwealth ; but, proceeding as you 
must under the law without reference to any such considera- 
tions, it does not seem to me that you have the information 
which you ought to require before making the loan. 



Contract, — Re-insurance, — Single Hazard. 

St. 1887, c. 214, § 20, prohibiting a company from insuring in a single hazard 
a larger sum than one-tenth of its net assets, is not to be construed as 
allowing it to take a larger risk in the first instance and reinsure it so far 
as to bring the net amount retained by the company, within the pre- 
scribed limit. 

Upon the question arising, under St. 1887, c. 214, § 20, ^^,'^^^^'^1^ 
whether the prohibition against insuring in a single hazard a *'°°J[- 
larger sum than one-tenth of the net assets of a company is July 29 . 
met by reinsuring such hazard so far as to bring the net 
amount at risk within the prescribed limit, I have heard, at 
their request, the representatives of the company in whose 
case it arises. It is urged that the general understanding and 
practice of insurers are that the amount may be so reduced ; 
that the insurance department treats reinsurance as reducing 
the amount of insurance of any particular company for the 



26 OPINIONS OF THE ATTORNEY-GENERAL. 

purpose of taxation ; and also that, in the similar prohibition 
in § 56, the Legislature expressly recognizes and permits re- 
insurance as reducing the amount of insurance to the pre- 
scril)ed limit. But it is competent to permit this reduction 
for one purpose or for various purposes, while refusing or 
omitting to allow it for other purposes ; and it may be said 
of § 56, with perhaps equal force, that, as the Legislature 
has allowed reinsurance to reduce the amount of insurance for 
the purposes of that section, but has not expressly extended 
the same privilege to the case provided for by § 20, it has 
thereby indicated its purpose not to permit it in the latter 
case ; and it is to be observed also that, in the last expression 
of the Legislature upon the subject, in St. 1891, c. 368, the 
Legislature, w^iile dealing with the sul)ject of reinsurance, 
has re-enacted the prohibition of § 20 without any express 
qualification. 

The history of this provision sheds some light upon its con- 
struction. From St. 1817, c. 120, in which it seems to have 
originated, throuo^h several re-enactments down to the insur- 
ance act of 1887, the prohibition was that a company should 
*' never take''^ or "hold" (the latter word also appearing in 
St. 1856, c. 252, § 15) more than the limited amount in one 
risk. This is somewhat stronger against the claim of reduction 
by reinsurance than the language in which the provision was 
re-enacted in the statute of 1887 ; and in view of § 112 of that 
act, and as there is no apparent reason to suppose that any 
modification or change of legal effect was intended in adopting 
the word " insure" in the re-enactment in place of the words 
"take "or " hold," I do not think it is to be inferred that any 
such change was intended, but that the re-enactment is to be 
taken as a continuation of the original prohibition. In view 
of these considerations, it is open to construe the clause of 
§ 20 literally, as an absolute prohibition against insuring more 
than the limited amount in one hazard, regardless of reinsur- 
ance. This is the safer construction, for the security both of 
the public and the insurance companies ; and it conforms to 
the ordinary rule of construing a grant of corporate power 
strictly as against the grantee. Another reason of some weight 



A. E. PILLSBURY, ATTORNEY-GENERAL. 27 

for following it now is, as I understand, that, in the only cases 
hitherto known to your department of violation of this pro- 
vision so construed, a fine has been imposed and paid ; so that 
a contrary construction would reverse the rule of the depart- 
ment, so far as any rule is established, and lead to inequality 
of treatment and apparent injustice, as between the various 
companies involved. 

Registration of Criminals, — Bertillon System of Measure- 
ment, — United States Prisoners. 

St. 1890, c. 316, requiring measurement of prisoners by the Bertillon system, 
applies to United States prisoners at the Massachusetts Reformatory. 

In reply to your request for my opinion upon the question To the 
whether United States prisoners at the Massachusetts Reform- i89i 
atory are included in the requirement for measurement by the "^ "^""^ ^ ^' 
Bertillon system, under St. 1890, c. 316, I have the honor to 
say that, as the Legislature undoubtedly has power to apply 
the requirement to such prisoners, and as they are not expressly 
excepted from the operation of the act, and as I find nothing 
in it to indicate any purpose of the Legislature that they should 
be excepted, it is, in my opinion, to be applied to them. 
This conclusion is strengthened by the fact that, in other 
statutes bearing upon the confinement of United States prison- 
ers in our prisons, they have sometimes been made the subject 
of express exception, and the absence of any such expression 
in this case has some tendency to indicate the purpose of the 
Legislature to make no such exception. 



Military Aid, — Honorable Discharge of Soldier. 

A man who enlisted in Massachusetts during the war of the rebellion and was 
honorably discharged is entitled to military aid under St. 1889, c. 279, 
§ 2, par. 3, notwithstanding that previously to his enlistment in Massachu- 
setts he had been dishonorably discharged from a Rhode Island regiment. 

In reply to your inquiry as to the legality of the payment To the 
of military aid to a man enlisted in Rhode Island in the war of i89i 
the rebellion and dishonorably discharged, and thereafter re- ".£!i!i ' 



28 



OPINIONS OF THE ATTORNEY-GENERAL. 



enlisted in Massachusetts and honorably discharged, I have to 
say that, as the re-enlistment was not unlawful, and was 
regarded by the War Department as permissible, as I am 
informed, an honorable discharge from the service under such 
re-enlistment in my opinion satisfies the requirement of St. 
1889, c. 279, § 2, par. 3 ; and the fact that the applicant was 
dishonorably discharged from the Rhode Island regiment does 
not disqualify him to receive aid under the statute. 



Legacy Tax Act, — Pending Cases. 

St. 1891, c. 425, imposing a tax on collateral legacies and successions, does 
not apply to cases pending at the time of its taliing effect, but only to 
cases arising after the time of its taking effect. 



To the 
Treasurer. 

1891 
September 2. 



In reply to your request to be advised upon the question 
whether St. 1891, c. 425, imposing a tax on collateral legacies 
and successions, applies to cases pending at the time of its 
taking effect, I have to say that, in my opinion, it is not to be 
applied in such cases, but only to cases in which the death of 
the decedent occurs thereafter. The language of the act 
appears to be capable of either construction, and there seems 
to have been no judicial determination of the question under 
the English statutes or those of other States. But, in view of 
some expressions which indicate the understanding, if not the 
actual purpose, of the Legislature, that it was not to apply to 
pending cases, and in view of the practical inconvenience of 
applying it to such cases, which application would raise 
numerous doubtful questions, and would be likely to lead to 
inequality and inequity among different persons or classes of 
persons taking from the same estate, I am led to the conclusion 
above stated, — that the act should be construed to begin with 
cases arising after the time of its taking eflfect. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 29 



Militia, — Enlisted Member, — Commissioned Officer. 

An enlisted member of the militia, who is elected a commissioned officer, 
continues liable to the duties and is entitled to the privileges of his 
original position until he is actually commissioned in pursuance of such 
election. 

In reply to your inquiry under date of the 1st instant, con- TotheAdju. 

1 f ^• 1 1 /» 1 •!• tant-General. 

cerning the status oi an enlisted member of the militia who is isgi 
elected a commissioned officer, during the interval between ^^P^f^'"^- 
such election and his assignment to duty, and whether such 
officer-elect during such interval is liable to duty and eligible 
to participate in regimental competitions and continues to be 
a member of his company, I have to say that, in my opinion, 
the status of an enlisted man is not changed merely by his 
election to a commissioned office, but that, until he is actually 
commissioned in pursuance of such election, and no longer, he 
continues liable to the duties and entitled to the privileges of 
his original position. It seems extraordinary, unless there 
are sufficient military or other reasons for it, that the statute 
should require an elected officer to be commissioned before his 
qualifications for the office are ascertained, and before it can 
be known whether he can ever lawfully exercise it ; and this 
apparent anomaly renders the statute more difficult of con- 
struction than it might otherwise be ; but, in my opinion, the 
proper construction under the circumstances is that above 
stated. 



Militia, — Discharge of Officer, — Constitutional Law. 

When an officer has been discharged from the militia under St. 1887, c. 411, 
§ 64, the law does not require the Governor to take any further action in 
the case. St. 1887, c. 411, § 64, is constitutional. 

In reply to your request for my opinion whether the law to the 
requires any further action on your part in the case of Capt. i89i 
S. Thomas Kirk, and upon the constitutional question said to '^ZJL 
be raised in Captain Kirk's letter to Your Excellency, I have 
the honor to say that, in my opinion, the law does not require 



Governor. 

1891 
October 12. 



30 OPINIONS OF THE ATTORNEY-GENERAL. 

any further action in the case on the part of the Commander- 
in-Chief, unless he chooses in his discretion to make further 
inquiry; and that there is, in my opinion, no doubt of the 
power of the Legislature, under art. 4 of the amendments to 
the Constitution, to enact the St. 1887, c. 411, § 64, under 
which he appears to have been discharged. As to the regu- 
larity or validity in other respects of the proceedings which 
led to his discharge, I can say nothing further than that, upon 
the papers transmitted to me ])y Your Excellency, I see no 
reason to doubt their validity. 



Legacy Tax Act, — Executor's Duty, — State Treasurer's DuIt. 

St. 1891, c. 425, § 5, makes it the duty of executors, administrators and 
trustees, in cases of articles of personal property specifically devised, to 
collect the tax before delivering the property. 

The statute does not make it the duty of the Treasurer of the Commonwealth 
to institute inquiry as to the existence of estates subject to the tax. 

T? assurer ^^ I'^ply to your inquiries as to your duty under the legacy 

1891 tax act (St. 1891, c. 425), I have to say that, in my opinion, 

* it is plain from § 5 that, in the case of articles of personal 

property specifically devised, it is the duty of the adminis- 
trator, executor or trustee to collect the tax, based on the ap- 
praisal provided for by § 9 or § 13, before delivering the 
article to the legatee ; and that, in the case of such a specific 
legacy in common to two or more persons, the tax is to be 
collected from each in proportion to their respective interests. 
I see no reason why this rule should not apply to every such 
case, and why you should not so inform any person having 
occasion to ask. 

As to your duty to make special inquiry, etc., in my opinion, 
the statute intends that sufficient information as to estates sub- 
ject to the tax, or the existence of such estates, will reach you 
through the provisions of §§ 9, 10 and 11, and the other pro- 
visions of the act, and that it does not require you to institute 
inquiry as to the existence of such estates. The Legislature 
seems to have proceeded upon the assumption that all deceased 



A. E. PILLSBURY, ATTORNEY-GENERAL. 31 

estates pass through the i^robate courts, and to have assumed 
that sufficient information for your purposes will reach you 
through that channel under the provisions of the act. If any 
other case should come to your knowledge, you have power 
under § 15 to apply for administration ; and in any case in which 
the original appraisal of the property is not satisfactory to you, 
you have power to secure a special appraisal under § 13 ; but, 
in the absence of anything tending to show that the original 
appraisal is erroneous, you are, in my opinion, justified in rest- 
ing upon it. 



Insurance Commissioner, — Duties. 

The Insurance Commissioner is not required to determine the legal titles of 
officers of endowment orders. 

In reply to your inquiries under date of 24th inst., as to To the 
the title of the officers of the Mutual One Year Benefit Order, commiBBioner. 
and under date of 27th inst., as to the title of the officers of October so. 
the Order of the Fraternal Circle, I have to say that, in the 
former case, upon the statement presented, I see no reason 
to doubt that the officers are properly qualified, and, in the 
latter case, that the indications are to the contrary ; but that 
this case will probably be so disposed of as to give you no 
further trouble, under a suggestion made by me to the counsel 
of the corporation, who has called upon me in reference to 
this question. 

The facts submitted by you are insufficient to determine the 
validity of the title of the officers in either case, a correct de- 
termination of which might involve a critical examination of 
all the proceedings of the respective organizations from their 
beginning ; and, in my opinion, the statute does not require 
you to determine the legal title of these officers. It would in 
many cases be practically impossible for you to do it with the 
means at your command. If their title is in question, and is 
so doubtful that you do not feel justified in endorsing a requisi- 
tion, you are justified in declining to endorse it ; leaving the 
parties in interest to proceed against you or to have the title 



32 



OPINIONS OF THE ATTORNEY-GENERAL. 

of the officers tried and settled in court, where alone it can be 
conclusively determined, with full protection in the mean time 
to all the interests involved. 



To the 
TreaBurer. 

1891 
November 14. 



Legacy Tax Act, — Retrospective Statute. 

St. 1891, c. 425, does not apply to a case in which the testator died before 
the act took effect, though his will was not admitted to probate until after 
it took effect. 

In reply to your inquiry whether St. 1891, c. 425, imposing 
a tax upon collateral legacies and successions, applies to a case 
in which the testator died before the act took eflfect, though his 
will was not admitted to probate until after it took effect, I 
have to say that such a case is within my former opinion, and 
the statute does not apply to it. A will takes efiect in law as 
of the time of the testator's death, and such a case as you 
describe was pending, in contemplation of law, at the time 
when the statute took effect ; and therefore, in my opinion, as 
formerly given you, is not affected by it. 



State Treasurer, 



To the 
Treasurer. 

1891 
November 30. 



Securities deposited bt Fraternal Benefi- 
ciary Organizations. 



St. 1890, c. 341, does not require the Treasurer of the Commonwealth to 
accept any security, the value and character of which may be open ques- 
tions which he may And it difficult or impossible to determine. 

In reply to your inquiry of this date, relating to certain 
mortgages assigned to you in trust under St. 1890, c. 341, 
I have to say that, in my opinion, you are not required to 
accept under that statute a mortgage given wholly or in part 
to secure future advances. While such a mortgage is a valid 
security for the sums actually advanced in the absence of any 
intervening lien or incumbrance, it is not valid, as against any 
such intervening lien or incumbrance, as to any advances there- 
after made. Under such a mortgage, therefore, the amount for 
which it is actually a valid and enforceable security is always an 
open question, and this is a question on which you might fre- 
quently be unal)le to ascertain the facts, and which you ought 



A. E. PILLSBURY, ATTORNEY-GENERAL. 33 

uot to be required, and, in my opinion, are not required, to 
determine. 

The fact that the date of a mortsraofe note does not corres- 
pond with the date of the mortgage, does not invalidate the 
security, if the note actually represents the debt which the 
mortgage was given to secure ; but such a discrepancy, as in 
the other case, raises a question of fact which you would have 
to determine before you could safely accept the mortgage, 
and which might be a subject of dispute thereafter ; and, in my 
opinion, you are not required to accept a note and mortgage 
between which such a discrepancy appears. 

There is, indeed, room for doubt whether the Legislature, 
with the exceeding liberality which has characterized its action 
on the subject of this statute, has not authorized these corpora- 
tions to unload upon you anything which they claim to be 
within the description of the statute as "securities in which 
insurance companies are allowed by law to invest their capital ;" 
and whether it has authorized you to make any examination of 
the securities, or given you any power to determine what shall 
be received. But the statute expressly gives you power to 
determine the ' ' value and character " of any of the securities 
which may be exchanged or offered in exchange ; and, in view 
of this provision, I think it reasonable to construe the statute 
as not requiring you to accept originally any security, the 
value and character of which may be open to questions which 
you might find it difficult or impossible to determine. 



Insurance, — Nature of Contract, — Advertisement. 

A contract made under an advertisement by a newspaper to pay a certain sum 
to the next of kin of any person dying by accident with a copy of the 
paper on his person is a contract of insurance. 

I see no reason to doubt that a contract made under and T" ">« 

iDBurance 

according to the terms of the advertisement transmitted to me Commseioner. 
in your letter of November 30 would be a contract of insurance, Decembers, 
within the description of St. 1887, c. 214, § 3. 

Note. — The newspaper advertised to pay $250 to the next of kin of any person dying 
by accident with a copy of the paper on his person. See p. 77 post. 



34 



OPINIONS OF THE ATTORNEY-GENERAL. 



Governor, — Assistant Clerk of Court, — Appointment. 



To the 
Governor. 

1891 
December 5. 



The Governor has no power to appoint ao assistant clerk of the Municipal 
Court of the Roxbury district. 

I acknowledge receipt of your request for my opinion as to 
your power to appoint an assistant clerk of the Municipal 
Court of the Roxbury district; and I have no doubt of the 
correctness of your view that the power of appointment to that 
office does not lie with the Executive. 



Fire Insurance, — Massachusetts Standard Policy, — Explosion. 



To the 

Insurance 

Commissioner. 

1S91 
December 18. 



Under St. 1887, c. 214, § 60, cl. 7, companies authorized to insure against Are 
in Massachusetts may insert in the Massachusetts standard policy a clause 
providing that, " in the event of an explosion, fire ensuing, the company 
shall pay the loss on the portion so injured by fire at the value thereof 
before the explosion; " but after the clause is inserted, the policy is not 
a Massachusetts standard policy, and is not to be so designated. 

In my opinion, there is nothing in the statutes, or in the 
general principles or policy of the insurance law, to forbid 
companies authorized to insure against fire in Massachusetts 
from inserting in their policies a clause providing that, "in 
the event of an explosion, fire ensuing, the company shall pay 
the loss on the portion so injured by fire at the value thereof 
before the explosion." It involves no violation of St. 1887, 
c. 214, § 57, if the policy is originally issued for an amount 
which, together with existing insurance, does not exceed the 
fair value of the property insured at that time ; and, while such 
a clause is undoubtedly inconsistent with the prescribed stipu- 
lation of the Massachusetts standard policy that the liability 
of the company is " not to include loss or damage caused by 
explosion of any kind unless fire ensues, and then to include 
that caused by fire only," the seventh excepting-clause of § 60 
of the insurance act expressly permits the insertion in policies 
of insurance, under certain conditions therein prescribed, of 



A. E. PILLSBURY, ATTORNEY-GENERAL. 35 

"provisions adding to or modifying those contained in the 
standard form." 

But the whole course of legislation concerning the Massa- 
chusetts standard policy, from its establishment by St. 1873, 
c. 331, through the successive additions to and re-enactments 
of that statute in St. 1880, c. 175, St. 1881, c. 166, Pub. Sts., 
c. 119, §§ 139, 140, and St. 1887, c. 214, § 60, clearly indi- 
cates the purpose of the Legislature that the standard policy 
shall contain no provisions in addition to or materially different 
from those prescribed in the statutory form, except such as 
are expressly permitted by the first, second, third, fourth and 
fifth excepting-clauses of § 60. The only one of these clauses 
which could be deemed to cover the provision here in question 
is the fourth, and that does not appear to me to cover it. It 
is designed rather to permit the insertion of such information 
and such formal statements, not likely to materially affect the 
substance of the contract, as the charter of the company, or 
the laws under which it is established, may expressly permit 
or require to be inserted. The only authority for the inser- 
tion of material provisions in addition to or materially different 
from those of the standard form seems to be in the seventh 
excepting-clause of § 60 ; and it is to be done only in the 
manner and upon the conditions therein prescribed ; and a 
policy issued under this clause is not the Massachusetts stand- 
ard policy. 

I am, therefore, of opinion that the clause in question can- 
not lawfully be inserted in the Massachusetts standard policy, 
and that a policy which contains it, while lawful and permis- 
sible if it is inserted in the manner prescribed in the seventh 
clause of § 60, is not the Massachusetts standard policy, and 
is not to be so designated. 



36 



OPINIONS OF THE ATTORNF.Y-GENERAL. 



To the Ad- 
jutant-General. 

1832 
January 26. 



Militia, — Continuous Honorable Service, 
Medals. 



Service 



Under St. 1891, c. 232, § 3, " nine years continuous honorable service" to be 
rewarded with a medal means nine consecutive years of service; and 
" additional five years like service " to be rewarded with a clasp or bar 
means Ave consecutive years of service immediately pi'eceding or follow- 
ing the period of nine years. 

In reply to your request to be advised of the proper con- 
struction of St, 1891, c. 232, § 3, relating to service medals, 
I have to say that in my opinion the ' ' nine years' continuous 
honorable service," which is to be rewarded with a medal, must 
be construed as nine consecutive years of service without 
interruption ; and that the " additional five years' like service," 
which is rewarded with a bar or clasp, must also be five 
consecutive years of service without interruption, and must 
immediately precede or follow, without interruption, the period 
of nine years. The statute must be taken as designed to con- 
fer a distinction for continuous honorable service of not less 
than nine years ; and the bar or clasp is not intended as a 
distinction to be conferred for five years' service by itself, 
but for that period of continuous service in addition to the 
other period. 



House of Representatives, — Quorum, — Constitutional Law. 

A quorum of the House of Representatives under Amendment XXXIII. of the 
Constitution consists of a majority of all the members constituting that 
body. 

The constitutional quorum is necessary for the permanent organization of the 
House. A less number may organize temporarily. 



To the Speaker 
of the House 
of Representa- 
tives. 

1892 
February 1. 



In compliance with the order of the honorable House of Rep- 
resentatives of January 27, requesting my opinion, "with 
reasons therefor," upon certain questions of the construction 
of amendment XXXIII. of the Constitution, establishing the 
quorum of the tAvo l)ranches of the Legislature, I respectfully 
submit the foUowim? : — 



A. E. PILLSBURY, ATTORNEY-GENERAL. 37 

First. — The words "a majority of the members" mean, in 
my opinion, a majority of the whole membership established by 
the Constitution. The weight of authority as to bodies com- 
posed of a fixed number of members, especially legislative 
bodies, is in favor of this construction. The judicial decisions 
are comparatively few, but they are generally in this direction. 
Under the provision of the Constitution of the United States 
that a majority of each house of Congress shall constitute a 
quorum, it was there held almost without exception, from the 
foundation of the government, that a quorum consists of a 
majority of the entire Senate and House, until the pressure of 
public necessity at a critical period of the war led to a temporary 
departure from this rule. The writers of highest authority on 
parliamentary law express the same view. There are other 
reasons for it, of equal force, arising both from principle and 
convenience. It is important that the quorum ])e a fixed and 
certain number. If any other construction is adopted, the 
quorum varies from time to time according to a multitude of 
circumstances, depending on the chances of death, resignation, 
declination, ineligibility, failure to elect, or failure to qualify. 
It is not to be supposed that the Legislatures and the people, 
who enacted this change in the fundamental law, intended to 
introduce into it such elements of uncertainty and confusion, 
or to leave the number which may constitute a quorum at any 
particular time to depend upon questions of fact which may be 
doubtful or in dispute, and which it may often be difficult or 
impossible to correctly determine. 

The constitutional amendment was drawn and enacted in view 
of the common rule that in the absence of any express provision 
a quorum consists of a majority of all the members constituting 
the body in question, which is often expressed in the language 
of this amendment. If it had been intended to change this rule, 
and to leave the quorum a variable number, depending on some 
or all of the contingencies above suggested, I think this inten- 
tion would have been more clearly expressed ; and that it is 
not to be inferred from the use of language which may be and 
is frequently, if not universally, taken to mean a majority of 
the whole membership. 



38 OPINIONS OF THE ATTORNF.Y-GENERAL. 

It is worth remarking, also, that the reason commonly 
assigned for the requirement of a majority as a quorum is to 
prevent the existence at the same time of two bodies, each 
claiming to be the rightful body ; and this reason of the rule 
can be absolutely satisfied only by construing a majority of the 
members to mean a majority of the whole membership. 

It follows that, in my opinion, the second, third, fourth and 
fifth questions submitted by the honorable House, must be 
answered in the negative. 

Sixth. — To the inquiry what constitutes a legal quorum, 
under the Constitution, for the organization of the House, I 
have to say that in my opinion such quorum for permanent 
organization, under the present Constitution, consists of one 
hundred and twenty-one members. The permanent organiza- 
tion of the House is, literally at least, "the transaction of 
business," and it seems to be so regarded both in the former 
constitutional provision and in the recent amendment ; and as 
the amendment does not permit " the transaction of business" 
by a less number than a quorum, the effect of it is to require 
the constitutional quorum for permanent organization. But 
with reference to temporary organization the case is difi'erent. 
Prior to the adoption of the amendment, the constitutional 
provision was that "not less than one hundred members of the 
House of Representatives shall constitute a quorum for doing 
business, but a less number may organize temporarily, adjourn 
from day to day, and compel the attendance of absent members." 
The language of the amendment is : "a majority of the mem- 
bers of each branch of the General Court shall constitute a 
quorum for the transaction of business, but a less number may 
adjourn from day to day, and compel the attendance of absent 
members. All the provisions of the existing Constitution 
inconsistent with the provisions herein contained are hereby 
annulled." It is difficult to believe that this amendment was 
drawn without reference to the former provision, or that the 
words "organize temporarily" were omitted by inadvertence. 
The amendment, therefore, seems at first sight to deprive a 
number less than a quorum of the power which it formerly had 
to organize even temporarily. But some sort of temporary 



A. E. PILLSBURY, ATTORNEY-GENERAL. 39 

organization is necessary to the exercise of the other powers 
which are expressly granted to a less number than a quorum, 
to "adjourn from day to day and compel the attendance of 
absent members"; and, in my opinion, from the necessity of 
the case, a less number than a quorum may aft'ect such tem- 
porary organization as may be required for the exercise of the 
other powers expressly conferred. 

I have submitted these reasons for my opinion, out of defer- 
ence to the honorable House of Representatives, in compliance 
with the terms of its order. But I respectfully call the atten- 
tion of the honorable House to the fact that the statute does 
not require the Attorney-General to state the reasons of his 
opinion ; and that in some cases such a statement may be 
inconsistent with the public interests. 



Harness-making, — Prison Labor, — Census. 

Harness-making is not a classified industry in the census of 1880 within the 
meaning and for the purposes of St. 1888, c. 403, § 2. The employment 
of eighty-two men in that industry in the State Prison is not in violation 
of law. 

The answer to your inquiry whether the employment of eighty- To the 
two inmates of the State Prison in harness-making is in excess 1892 
of the number allowed by law, depends upon the question ^^j]^^^- 
whether the enumeration in the census of 1880 of persons 
engaged in the ' ' saddlery and harness " industry is a sufficient 
classification of ' ' the manufacture of harnesses " within the 
meaning and for the purposes of St. 1888, c. 403, § 2. 

I understand that my predecessor expressed to the Governor 
and to a legislative committee the opinion that harness-making 
cannot be considered as classified in that census, and that this 
view has been acted upon by the Legislature and the prison 
authorities. Under these circumstances there is, in my opinion, 
no sufficient occasion to depart from the rule thus established. 
Doubtless " saddlery " may be and sometimes is taken to cover 
and include harnesses and harness-making. But it is equally 
true that the manufacture of harnesses is, to some extent at 



40 



OPINIONS OF THE ATTORNEY-GENERAL. 



least, a separate and distinct industry, as it is in the prisons ; 
and the census does not disclose how many are engaged in this 
separate industry. If we assume that all the persons classified 
under the ' ' saddlery and harness " head arc engaged or are to 
be considered as engaged in harness-making, this assumption 
may lead us into the very difficulty which the statute is designed 
to prevent, which is the competition of prison labor with free 
labor, in the same industry, in any greater proportion than 
one-twentieth. Suppose the number classified under '* saddlery 
and harness " to ])e three thousand, of whom but two thousand 
are in fact engaged in harness-making. If we assume this to 
be a classification of harness-making, it permits the employ- 
ment in the prison of one hundred and fifty men in harness- 
making, which is more than one-twentieth of those so actually 
engaged outside. For this and other reasons the emplo^aiient 
of eighty-two men in harness-making in the State Prison can- 
not, in my opinion, be said to be in excess of the number 
allowed by law. 

Legacy Tax Act, — Executor, — Invextort. 



To the 
Treasurer. 

1892 
February 18. 



Under St. 1891, c. 425, an executor, administrator or trustee is obliged to file 
in the Probate Court an inventory of the whole estate, and not of such 
part only as is subject to the tax. 

In reply to your inquiry whether, under the legacy tax act 
(St. 1891, c. 425), an executor, administrator or trustee is 
obliged to file in the Probate Court an inventory of the whole 
estate, or whether he may file an inventory only of such part as 
is subject to the tax, I have to say that, in my opinion, the act 
requires him to file an inventory of the whole. This is evident 
from the express provisions of § § 9 and 10, and from the further 
consideration that the statute cannot reasonalily be taken to 
intend that the executor, administrator or trustee shall deter- 
mine for himself what part of the estate is subject to the tax. 
It must be taken to require him, as the language clearly implies, 
to disclose the whole, for the examination of any party in 
interest and the action of the court upon any question which 
may arise. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 41 

Title Insurance Companies, — Buying and Selling Mortgages 
OF Real Estate, — Banking. 

Title insurance companies organized under the general laws cannot engage 
in the business of buying and selling mortgages of real estate for profit, 
but may invest their capital or guaranty fund in such mortgages and sell 
the same when their interest requires. 

Title insurance companies, under St. 1887, c. 214, § 62, and Pub. Sts., c. 106, 
§ 51, may add to their original business the buying and selling of mort- 
gages of real estate as brokers, which is a " lawful business " within the 
meaning of the statute. This does not permit them, however, to buy and 
sell such mortgages as dealers therein, or carry them as a stock in trade, 
which is '' banking." 

Such addition to their original business does not debar them from the busi- 
ness of title insurance. 

In reply to your inquiries of 15th inst., relating to the To the 

/. ...1 . . -r 1 1 Insurance 

powers 01 title insurance companies, 1 have to say : — commissioner. 

First. — In my opinion, title insurance companies organized February is. 
under the general laws cannot engage in the business of buying 
and selling mortgages of real estate for the purpose of profit, 
either by commissions thereon, or by increasing their business 
by examination of the titles to the mortgaged estates. But they 
may invest their capital or guaranty fund in mortgages of real 
estate, and of course they may sell any mortgage purchased for 
this purpose when their interest requires. The practical result 
is that, while they cannot engage in the business of buying and 
selling mortgages as an independent business, they may buy and 
sell mortgages up to the amount of their capital and guaranty 
fund, if such mortgages are actually purchased and held for and 
as part of these funds. And there is nothing to forbid them 
from making a proper charge for examination of the title to 
the mortgaged estates, as the practice is among savings banks 
and like institutions, if the parties in interest are willing to 
pay it. 

Second. — As title insurance companies, under St. 1887, 
c. 214, § 62, have the privileges of other corporations under 
Pub. Sts., c. 106, and as one of these privileges, under Pub. 
Sts., c. 106, § 51, is the addition of any lawful business for 
which they could originally organize under that chapter, they 
may, in my opinion, by the proper proceedings under the 



42 



OPINIONS OF THE ATTORNEY-GENERAL. 



statute, add to the business for which they were originally 
organized the business of buying and selling mortgages of real 
estate as brokers, for the purpose of earning a commission 
upon such transactions, or of increasing their regular business 
by the examination of titles. The business of buying and 
selling securities as brokers merely has always been considered 
and treated by the department having charge of the organiza- 
tion of corporations, so far as I am informed, as a "lawful 
business" within the sense of Pub. Sts., c. 106, § 14, for 
which a corporation may be organized under the general law. 
But this will not permit them to buy and sell mortgages as 
dealers therein, or to carry mortgages as a stock in trade. 
Such dealing in negotiable securities has always been regarded 
and treated by the corporation department as a branch of 
banking, for which a corporation cannot be organized under 
the general law. If the construction of the word "banking" 
in the corjDoration act were a new question, it might require 
further consideration to determine exactly what it includes, 
but at present I see no occasion to depart from the rule estab- 
lished by the practice of the corporation department. 

Third. — In my opinion, a title insurance company, by 
making such addition to its original business under Pub. Sts., 
c. 106, within the limits above indicated, is not thereby 
debarred from pursuing the business of title insurance. 



To the 
Governor. 

1892 
March 12. 



Legislature, — Travelling Expenses, — Constitutional Law. 

An allowance to a member of the Legislature of two dollars for every mile 
of ordinary travelling distance from his place of abode to the place of the 
sitting of the General Court is not in violation of the fourth clause of 
Art. 2, § 3, chap. 1 of the Constitution. 

Doubt as to constitutionality of single provision of an act of Legislature does 
not require the Governor to interpose against a bill containing other in- 
dependent provisions not open to question. 

In compliance with your request for my view of the consti- 
tutionality of § 4 of the legislative bill entitled ' ' An Act con- 
cerning the use of railroad passes, and the compensation of 



A. E. PILLSBURY, ATTORNEY-GENERAL. 43 

members of the Legislature," * I have the honor to say that, 
in my opinion, it is not in violation of the Constitution. 

The first three sections of the bill are directed to prohibit 
the use of railroad passes by memljers of the Legislature and 
certain other public officers. Section 4 relates to the compen- 
sation of members of the Legislature, and provides that each 
member shall receive $750 for the session, "and two dollars 
for every mile of ordinary travelling distance from his place 
of abode to the place of the sitting of the General Court." 
The question is whether this latter provision is in violation of 
the fourth clause of Art. 2, § 3, c. 1 of the Constitution, pro- 
viding, as to memljers of the House of Representatives only, 
that " the expenses of travelling to the General Assembly and 
returning home once in every session, and no more, shall be 
paid by the government out of the public treasury to every 
member who shall attend as seasonably as he can, in the judg- 
ment of the House, and does not depart without leave." 

Upon a casual view of these provisions, they might appear 
to be inconsistent with each other. But upon further examina- 
tion I am satisfied that the true purpose and efi'ect of the con- 
stitutional provision are quite difterent from what they might 
at first sight appear to be, and that the present bill is not in 
conflict with it. 

Under the original Constitution the Senate and House were 
bodies of widely diflerent character. The senatorial representa- 
tion was based upon taxable property, instead of population. 
The senators were chosen to be "councillors and senators," 
and the members of the executive council were selected from 
their number. They were elected by counties, and were re- 
quired to have a property qualification of three hundred pounds 
real or six hundred pounds personal estate. On the other 
hand, the House of Representatives was made a popular body. 
It was declared to be "a representation of the people, founded 
upon the principle of equality." The basis of representation 
had reference only to population, and not to property. Every 
town of one hundred and fifty polls was given a representative, 
and the property qualification required of representatives was 

* Enacted as St. 1892, c. 59. 



44 OPINIONS OF THE ATTORNEY-GENERAL. 

much less than that of senators. No compensation for services 
is provided for either branch. 

It was, in my opinion, in view of and with reference to this 
different character of the two branches of the Legislature that 
the Constitution provided for the allowance of the travelling 
expenses of members of the House, while making no such allow- 
ance to members of the Senate. It was designed to promote 
the attendance of the representatives. The next clause of the 
Constitution preceding that which provides for the travelling 
expenses of members of the House empowers the House to 
impose a fine upon towns which neglect to send representatives. 
The position and connection of these two clauses are signifi- 
cant. The purpose clearly was to promote the election and 
secure the attendance of a full representative body of the 
people ; to which end it was deemed reasonable and expedient 
to provide for the payment of their travelling expenses out of 
the public treasury, so that representatives would be less 
likely to be prevented from attending by lack of means. The 
history of the period in which the Constitution was framed, 
and our historical knowledge of the situation and opinions of 
the men who made it, strengthen this conclusion. 

In this view of the constitutional provision, it is clear that it 
must be taken as designed to ensure the allowance for travel, 
and not to limit the amount of it, except that, when fixed, it 
can be paid l>ut once in each session ; and that the true mean- 
ing is, that the expenses of travelling and returning home, as 
ascertained or fixed by the Legislature, shall be allowed to each 
member of the House once, and no more than once, in each 
session. 

There are other reasons on which the constitutionality of the 
bill may be supported. The Legislature has undoubted power 
to provide for the compensation of its members, and if it sees 
fit to fix their compensation wholly or partially with reference 
to the distance which they are obliged to travel, this, in my 
opinion, cannot be said to be beyond its power. And, while 
the allowance of two dollars per mile seems to be an allowance 
for or in lieu of travelling expenses, the section is legally 
capable of the other construction, namely, that the Legislature 



A. E. PILLSBURY, ATTORNEY-GENERAL. 45 

designed to fix a variable rate of compensation of members, 
with some reference to the distance of their homes from the 
place of session, Tliis in eft'ect, though in a different form, 
has been done before. See St. 1858, c. 2, §§ 1, 2 and Res. 
1859, c. 130. But if the allowance of two dollars per mile is 
taken strictly as designed to provide for the travelling expenses 
referred to in the Constitution, it cannot be declared in excess 
of the legislative power. The "expenses of travelling" pro- 
vided for by the Constitution must be ascertained and fixed by 
somebody, and there is no doubt that the Legislature may fix 
them for itself ; and I see no reason to doubt that it may fix them 
in advance and in its own way. It is common knowledge that 
two dollars per mile is now much more than the ordinary cost 
of travel in Massachusetts, but the allowance seems never to 
have been limited to the actual cost of transportation. See 
Res. Oct. 19, 1781, c. 242 ; Res. Feb. 23, 1795 (Res. 1794, , 
c. 74), Res. June 11, 1795, c. 18; Res. 1857, c. GS ; since 
which there has been no change in the allowance for travel. 
It is to be remembered that all the legal presumptions are in 
favor of the propriety of the exercise of the legislative power, 
and all doubts are to be resolved, so far as possible, in its favor. 
Perhaps I should also direct the attention of Your Excellency 
to another view of the bill. The first three sections, relating to 
railroad passes, are not alFected by the constitutional question, 
and they are entirely separable and distinct from the fourth 
section. It is a famiUar rule that, even if some provisions of 
an act of the Legislature are unconstitutional, other distinct and 
independent provisions may stand. There may be cases in 
which a single clearly unconstitutional provision in an act of 
the Legislature would call upon the Executive to withhold his 
approval from the act ; but a doubt of the constitutionality of a 
single provision does not necessarily require the Executive to 
interpose against a bill containing other independent provisions 
which are not open to question. 



46 OPINIONS OF THE ATTORNEY-GENERAL. 



Militia, — Election of Field Officer, — Governor. 

If, after one adjournment of an election of a field officer, under St. 1887, c 411, 
§ 45, there is a failure to elect, and the presiding officer without further 
adjournment declares the election dissolved and orders a new election, 
there is no authority for such new election, and it is the duty of the 
Governor to appoint to the vacancy under § 51. 

imanu^enerai. ^ liave jour communication of this date requesting my opinion 
1892 upon this question : if, after one adjournment of an election of 

' a field ofiicer, under St. 1887, c. 411, § 45, there is a failure to 

elect, and the presiding officer without any further adjournment 
declares the election dissolved and orders a new election, must 
the Governor appoint to the vacancy, or can the electing body 
be again called together, under such new order, for an election ? 

I find no authority in the law for a new election under these 
circumstances. In my opinion, the dissolution of the meeting 
at the first adjournment, without any further adjournment, 
determines the authority of the electing body, and leaves the 
case in the same position as upon neglect or refusal to elect 
after a second adjournment ; whereupon it becomes the duty of 
the Governor, under § 51, to appoint a suitable person to the 
vacancy. 

In Gen. Sts., c. 13, § 45, and prior thereto, it was provided 
that the division commander might, if necessary, order a new 
election under such circumstances, unless notified by the Com- 
mander-in-Chief of his intention to make an appointment. 
The omission of this provision in the later re-enactments of 
the militia law in St. 1878, c. 265, in Pub. Sts., c. 14, and in 
St. 1887, c. 411, indicates the purpose of the Legislature to re- 
quire that the Commander-in-Chief shall appoint to any vacancy 
which the electing body neglects or refuses to fill at an elec- 
tion held in accordance with the provisions of § 45 ; and under 
that section the authority of the electing body is limited to two 
successive adjournments of the original election. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 47 



Corporation, — Husband and Wife, — Contract. 

Hasband and wife cannot lawfully join in an agreement of association for the 
purpose of forming a corporation under the general laws. 

Upon your reference to me of the question whether a husband "^9 1'?® ^°^: 

t^ J -i misBioner or 

and wife can lawfully join in an agreement of association for coiporations, 
the purpose of forming a corporation under the general laws, I March 19. 
have to say that I see no sufficient reason for changing what I 
understand to have been the uniform practice of your depart- 
ment, to decline to accept a husband and wife toward making 
up the necessary number of associates, on the ground that the 
agreement is a contract between each subscriber and all the 
others, and that a husband and wife cannot lawfully make such 
a contract with each other. 



Foreign Insurance Company, Certificate of Admission, — P'ire 
Insurance, — Marine Insurance. 

A foreign insurance company admitted to this Commonwealth in 1872 under 
a certificate which mentions only fire insurance may add to the business 
of fire insurance that of marine insurance, if it possesses the qualifica- 
tions required by law for both classes of business. 

St. 1887, c. 214, § 80, does not apply to a foreign company admitted before 
the enactment of St. 1879, c. 130. 

The certificate and licenses of a foreign company are designed only to furnish 
evidence of the right of the company and its agents to transact the busi- 
ness of insurance in the Commonwealth, not to limit the class or classes 
of business which may be transacted thereunder. 

I acknowledo:e the receipt of your inquiry whether the St. Tothe 

^ 1 ./ 1 ./ ^ ^ Insurance 

Paul Fire and Marine Insurance Company, admitted in October, commiseioner, 
1872, to transact fire insurance in Massachusetts, and now and Apnii. 
ever since doing that business here under licenses which men- 
tion only fire insurance, can now add to that business the 
business of marine insurance in tliis Commonwealth ; or, if it 
cannot add the business of marine insurance under its present 
authority, whether, in this state of things, it can demand 
licenses to transact marine as well as fire insurance. I assume, 
of course, that the company possesses the qualifications re- 
quired by our law for both classes of business. 



48 OPINIONS OF THE ATTORNEY-GENERAL. 

The provision of St. 1887, c. 214, § 80, that no foreign 
insurance company hereafter admitted to the Commonwealth 
shall be authorized to transact more than one class of insurance 
therein, does not apply to this company ; as it was admitted 
before the original enactment of that provision, in St. 1879, 
c. 130. It is plain that this statute recognized the fact that 
there were then foreign companies doing or authorized to do 
more than one class of business here, and that the restriction 
to one class was not intended to apply to foreign companies 
already established here. 

The only question, therefore, of the authority of this com- 
pany to do marine business, arises out of the form of its 
licenses, which mention only fire insurance. While it would 
doubtless be l)etter, for some reasons, that the certificate or 
license should in every case express the class or classes of 
business which a foreign company is authorized to do here, the 
statute, in my opinion, does not warrant the exclusion of a 
duly admitted company, whatever may be the form of its cer- 
tificate or licenses, from a class of business which it is qualified 
and may lawfully be authorized to do. The statute which pro- 
vides for the certificate of admission (St. 1887, c. 214, § 78, 
el. 5), describes it as a certificate that the company " has 
complied with the laws of the Commonwealth, and is author- 
ized to make contracts of insurance." In the case, at least, of 
a company wliich is not confined to one class or kind of insur- 
ance, the statute does not require the certificate to express the 
class or classes of insurance which it may do. The provisions 
for licenses to agents are substantially the same in this respect. 
The statute, therefore, affords no express authority to restrict 
to a single class of business, by the form of the certificate or 
license, a company which may lawfully be authorized to do 
more than one class. I think the certificate and the licenses 
are designed to furnish evidence of the right of the company 
and its agents to transact the business of insurance in the Com- 
monwealth ; leaving the class or classes of insurance which 
may be transacted thereunder to be determined hy the law, 
according to the qualifications of the company. 

Accordingly, I am of opinion that the company in question. 



A. E. PILLSBURY, ATTORNEY-GENPLRAL. 49 

under its present authority, may add to the business of fire 
insurance the business of marine insurance in this Common- 
wealth. 



Commissioners of State Aid, — Jurisdiction. 

The jurisdiction of the Commissioners of State Aid as a board of appeal is 
limited to " invalid pensioners " under St. 1889, c. 301, § 7, but under §§ 7 
and 8 they may inquire into all questions on which legality of any payment 
of State aid may depend. Whether a woman whose husband has not 
been heard from for many years is " widowed " in the sense of the statute 
is a question of fact which the commissioners may determine on evidence. 

I have your request for my opinion upon the question now To the 
before the Commissioners of State Aid, upon appeal from an 1892 
adverse decision of the municipal authorities of Salem, whether '^ ^"' ^^ ' 
the mother of a deceased soldier, whose husband, the father of 
the soldier, went to California about forty years ago and has 
never been heard from since that time or about that time and is 
supposed to be dead, can be regarded as a " widowed mother" 
in the sense of St. 1889, c. 301, § 1, so as to be entitled to 
aid thereunder. 

I am of opinion that the commissioners have no jurisdiction 
of the appeal, and that for this reason the question is not at 
present before them for determination. By § 7 of the act the 
powers of the commissioners as a board of appeal seem to be 
limited to the case of " invalid pensioners," who under the act 
are a class by themselves, to which class the present applicant 
does not belong. 

But under §§ 7 and 8 the commissioners have power to 
investigate all payments of State aid to claimants of any class, 
as preliminary to their allowance by the Auditor ; and if the 
authorities of Salem should see fit to allow and pay the aid in 
this case, it would then be within the power of the commis- 
sioners, upon the certificate of such payment, to inquire into its 
legality, and to determine any question upon which its legality 
may depend, including the question whether the applicant is a 
*' widowed mother," in the sense of the act. This is a question 
of fact, to be determined upon such evidence as may be had ; and 



50 OPINIONS OF THE ATTORNEY-GENERAL. 

in determining it various circumstances arc material to be con- 
sidered, such as the circumstances under which the husband 
disappeared or was last heard of, the distance and fjicilities of 
communication with the place where he was last known to be, 
his age and state of health, the length of time since he was last 
heard from, and any other material circumstances. The oath of 
the applicant, or the absence of such oath, is not conclusive 
proof either that the man is or is not dead. The board may 
also consider the legal presumption that a man is dead if absent 
and unheard of by his nearest friends or relatives for more tlian 
seven years. And if upon all the evidence they are reasonably 
satisfied that the missing man is in fact dead, they are at liberty 
to regard the applicant as a " widowed mother," in the sense of 
the statute, and to allow the payment. 



Reimbursement of Towns by Commonwealth, — Constitutional 
Law, — Insane Paupers. 

An act authorizing the reimbursement by the Commonwealth of the expenses 
incurred by certain towns in the maintenance of insane paupers is con- 
stitutional. 

Governor. I ackuowlcdgc the rcccipt of your request for my opinion 

i^^2 upon the constitutionality and other features of House Bill No. 

May 3. ^ *^ . . 

334, entitled "An Act authorizing the reimbursement of ex- 
penses incurred by certain towns in the maintenance of the 
insane." * I regret that I am obliged to answer it in the midst 
of a capital trial, which necessarily engrosses my time, but 
upon such examination as I am able to make I see no reason 
to seriously doubt the constitutionality of the bill. 

As to the other questions raised, it is clear that, under the 
bill, the Governor and Council must determine whether a town 
is entitled to reimbursement ; in order to which they must 
first find that the taxable valuation of the town is less than 
$500,000, and that the town is lawfully charged with the main- 
tenance of the person in question, by reason of his having a 
legal settlement in the town. As the bill stands, the Governor 

* Enacted as St. 1892, c. 243. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 51 

and Council must also determine whether the reimbursement 
shall be in whole or in part. The act contemplates the reim- 
bursement without any further legislation, and it provides no 
other tribunal for determining this question. In this particu- 
lar, and also upon the question of what discretion, if any, is 
vested in the Governor and Council as to ordering the reim- 
bursement in any case, the bill might be made clearer by 
amendment. As it stands it must, I think, be construed as 
I have stated above. 



Rapid Transit Commission, — Report, — Expenses. 

The expenses of the Rapid Transit Commission established under St. 1891, 
c. 365, reasonably incidental to the completion of its final report, may be 
allowed even though incurred after the time prescribed for the filing of 
such report by Res. 1891, c. 107. But no other expenses incurred after 
such time can be allowed. 

I have your request for my opinion upon the question To the 
whether you can allow tor payment any expenses ot the Kapid 1892 
Transit Commission, established by St. 1891, c. 365, incurred ^_^^- 
after the first Wednesday in April, 1892, the date to which the 
time for the final report of the commission was extended by 
Res. 1891, c. 107. 

The act and resolve need not be construed as absolutely 
putting an end to all authority of the commission on the first 
Wednesday in April, 1892. If the commission had been for 
any reason unable to complete and present its final report within 
that time, there would be, I presume, no doubt of its duty or au- 
thority to complete and present it as soon thereafter as might be, 
and the Legislature would undoubtedly have received it when 
so completed and presented. In that case, the expenses of the 
commission might reasonably be allowed and paid, to the com- 
pletion and presentation of its report. On the other hand, the 
act and resolve are not to be construed to continue the commis- 
sion in office, with authority to incur expenses, for an indefinite 
time. The general rule is, that when a board is charged wdth 
a single specific duty, its official character and functions end 
with the performance of the duty. This rule may properly be 



52 OPINIONS OF THE ATTORNEY-GENERAL. 

applied to the present case, I understand that the official 
report of the commission was completed and presented within 
the prescribed time, but tliat an additional or supplemental 
report of the engineer has been completed and presented within 
the past few days, and since the first "Wednesday in April. I 
am not informed whether this supplemental report can be con- 
sidered as part of the report of the commission, or as necessarily 
incidental to the completeness or completion of that report. 
If, as incidental to the completion and presentation of the final 
report of the commission within the prescribed time, or even 
beyond that time, the commission has necessarily or reasonably 
incurred expenses since the first Wednesday of April, such 
expenses may, in my opinion, be certified for payment ; but 
only such as are reasonably necessary to the completion and 
presentation of the final report of the commission within the 
limited time or as soon thereafter as possible. Beyond this 
limit the commission has, in my opinion, no authority to incur 
expenses to be charged upon the treasury. 



May 11. 



Legacy Tax Act, — Executor, — Inventory. 

Under St. 1891, c. 425, the Treasurer of the Commonwealth has no legal 
authority to consent to the omission by an executor to file an inventory 
of tlie entire estate. 

To the I have vour request to he advised whether vou have legal 

Treasurer. »/ -i ^ ^ ^ o 

1892 authority to consent in advance to the omission by an execu- 

tor to file an inventory of an entire estate of which a part is 
taxable under St. 1891, c. 425. I advised you, under date of 
February 18, 1892, that the law requires an inventory of the 
entire estate to l)e filed. The statute gives the Treasurer no 
express power or discretion to dispense with this requirement ; 
on the contrary, it expressly requires him to prosecute for the 
penalty upon neglect or refusal to comply Avith it. In my 
opinion you have no legal authority to dispense with it, and 
your consent to the omission, or even a promise of immunity 
for it, would be of no legal effect to bind j^our successors, or 
to bar a prosecution for the penalty. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 53 



Province Lands, — State Agent, — Legislature. 

Whether the Commonwealth should assert or defend its title or that of its 
grantees in the Province lands in Proviucetown is a question of legis- 
lative policy, and until further action by the Legislature the State agent 
has no duty to assert or defend such titles. 



the 



I acknowledge the receipt of the order in council of April 27, q^^I^^^ 
referrinij to me the communication of David Ryder, ao;ent of Council. 
the Province lands, in Proviucetown, and requesting that I May 12. 
advise with him as to his duty. 

The duties of the agent are prescribed by St. 18G9, c. 218, 
but these are so plain that they cannot be misunderstood ; and 
I presume that what Mr. Ryder wishes to know is whether he 
has any duty in respect of the title of the Commonwealth, or 
its grantees, in the Province lands, or in relation to the defence 
of such title when drawn in question. In my opinion he has 
no such duty. The writ of entry to which he refers has been 
tried and disposed of, if I am correctly informed, and it is now 
too late to intervene in that case, if there were any occasion to 
intervene. I am informed also that the tenant in that action 
does not intend to prosecute his exceptions ; and I know of no 
reason to suppose that the Commonwealth has any right to take 
the defence of the action out of his hands, or to interfere with 
his conduct of it. 

The Province lands in Proviucetown have been the subject 
of legislation from the earliest times. The title to them is 
understood to l)e still in the Commonwealth, and they are 
expressly excepted from Pub. Sts., c. 196, § 11, relating to 
the limitation of real actions by or against the Commonwealth. 
See also Gen. Sts., c. 154, § 12; St". 1854, c. 261; St. 1838, 
c. 151; Provincial Sts. 1714, c. 7, § 2 ; Provincial Sts. 1727, 
c. 11 ; Provincial Sts. 1779, c. 18 ; Provincial Sts. 1740, c. 15 ; 
Acts and Resolves, Massachusetts, Provincial, vol. 3, pp. 219, 
220; St. 1786, c. 12; St. 1806, c. 21; St. 1807, c. 79; St. 
1811, c. 92; St. 1826, c. 80; St. 1833, c. 143; St. 1835, 
c. 125; St. 1838, c. 151; St. 1853, c. 306; St. 1864, c. 77. 

The question what, if anything, should be done toward 



uor and 



54 OPINIONS OF THE ATTORNEY-GENERAL. 

asserting or defending the title of the Commonwealth or its 
grantees in these lands, is, in my opinion, a question of legis- 
lative policy ; and until further action of the Legislature the 
State agent has no duty in the premises, except the duties 
prescribed by the statute of 18G9, above referred to. 



To the 

Insurance 

Commissioner. 

1892 
May 17. 



Fraternal Beneficiary Organization, — Attorney- General. 

The public has no legal interest in the funds of a fraternal beneficiary organ- 
ization, or in a controversy over them ; and the Attorney-General is neither 
required nor authorized to appear in court therein. 

I acknowledge the receipt of your letter of 14th inst., refer- 
ring to the question raised upon the report of the receiver to 
the Superior Court, in the case of the Order of the Royal Ark. 

In my opinion there is no public interest involved, in the 
legal sense, which calls for or authorizes my appearance in the 
case. The " general interests of the public" are not in ques- 
tion. The controversy is either between members of the cor- 
poration as among themselves, or between the members and 
various claimants of the funds. The public has no legal interest 
in the funds, and for this reason has no legal interest in the 
controversy which I can properly represent. 



Registration of Voters, — Right to Vote, — Constitutional 

Law. 



To tlie 
I'rcMident of 
the Senate. 

1892 
May 24. 



The Legislature cannot impose upon a voter any qualifications as a condition 
of the right to vote beyond those prescribed by the Constitution. 

The Legislature may provide reasonable and uniform regulations for the 
registration of voters, and for the exclusion from the right to vote of 
any not so registered. 

An act favoring, in the convenience of registration, those who are assessed and 
have paid a tax, but leaving all free to register without reference to taxa- 
tion, is not clearly unconstitutional. Whether such a regulation is reason- 
able is largely a question for the judgment of the Legislature. 

In compliance with the request of the honorable Senate in its 
order of May 18, I return my opinion upon the constitution- 
ality of Senate Bill No. 21G, entitled " An Act relating to the 



A. E. PILLSBURY, ATTORNEY-GENERAL. 55 

registration of voters."* I assume that tlie provisions of the 
bill which are principally in question are those of §§ 14 and 15, 
and of §§ 7, 8, 10 and 11 so far as they are incidental to the 
purposes of §§ 14 and 15. 

The Legislature cannot impose upon the voter any qualifica- 
tion throughout as a condition of the right to vote, beyond those 
expressly prescribed by the Constitution. But it may provide, 
by reasonable and uniform regulations, for the registration of 
voters in advance of the election, and for the exclusion from 
the right to vote of any not so registered. The present bill 
does not impose, or attempt to impose, any additional qualifi- 
cations upon the voter. The sections in question relate only to 
registration and to the ascertainment of the qualifications of the 
voter, for the purpose of registration ; and the only question is 
whether they are reasonable and uniform regulations for this 
purpose. 

The doubtful provision is that which requires the registrars 
to carry over to the register of the current year from that of the 
preceding year, without further inquiry, the names of all who 
paid a tax in the preceding year and are assessed for a poll tax 
in the current year, if identified. This has the effect to favor, 
in the convenience or facility of registration, those who are as- 
sessed and have paid a tax, although assessment and payment 
of a tax have ceased to be a qualification of the voter. Such a 
regulation can be sustained only if it is a necessary or reason- 
able regulation for the purpose in view ; and this is largely a 
question for the judgment of the Legislature. 

The Legislature may consider that difierent cases arising in 
registration may be or must be differently dealt with ; that more 
evidence may reasonably be required of one voter than of another 
of whom more is known ; that one who has paid a tax may 
reasonably be favored, to some extent, in the convenience of 
registration ; that one of whom certain facts tending to estab- 
lish citizenship appear by the public records may reasonably 
be excused from presenting himself before the registrars, while 
another, of whom these facts do not appear, may reasonably be 
required to establish his right ; that the fact of assessment and 

* St. 1892, c. 351, was enacted in substitution of this bill. 



56 OPINIONS OF THE ATTORNEY-GENERAL. 

payment of a tax will aid the registrars, as evidence, in deter- 
mining the identity and the domicile of the voter, which they 
must determine ; or even that these facts may reasonably be 
declared to be sufficient jprima facie evidence to warrant the 
keeping of a name upon the register, in the absence of objection. 
This is in line with § 23, which expressly provides that the 
registrars may receive a tax bill or collector's notice, or a cer- 
tificate of assessment, as prima facie evidence of residence in 
the place and for the time required by law of a voter. The 
Legislature may also consider that, between the two extreme 
courses of carrying over the entire list from one year to the 
next, or wiping out the entire list at the end of each year, either 
of which it may regard as objectionable, but one of which must 
l)e done if all are to be treated exactly alike, there may l)e some 
middle ground on which the registrars may be reasonably 
required to go in determining what names shall be carried over ; 
and it may consider that the rule prescribed by the bill is a 
convenient and reasonable rule. All these questions are for the 
consideration and judgment of the Legislature, but the legis- 
lative judgment must be reasonably exercised. It is to be 
remembered that some difference in the mode of dealing with 
different cases does not necessarily amount to discrimination, 
or violate the requirement of uniformity, in the legal sense. It 
is to be observed, also, that the bill does not make the assess- 
ment or payment of a tax a condition of the right to l)e regis- 
tered, which would be clearly objectionable. It leaves any 
voter free to present himself and establish his right to be 
registered, without any evidence of or reference to taxa- 
tion. 

The provision which makes the payment of a tax an essential 
part of the evidence for keeping a voter upon the list must be 
said to approach, if it does not reach, the line of objectional)le 
discrimination. But, taking the question as a bare question of 
legislative power, apart from any question of expediency, and 
with all presumptions in favor of the bill which the law requires 
to be made in favor of the acts of the Legislature, it cannot be 
declared in advance that these provisions for the regulation of 
registration are clearly in violation of the Constitution, or, in 



A. E. PILLSBURY, ATTORNEY-GENERAL. 57 

view of the latitude which is permitted to legislative discretion, 
that they are clearly beyond the power of the Legislature to 
enact. 

Insurance Commissioner, — Assessment Endowment Order, — 
Withdrawal of Funds in Treasury. 

The Insurance Commissioner may endorse a requisition for the withdrawal 
of the funds of an assessment endowment order deposited with the 
Treasurer of the Commonwealth, if the corporation is being wound up by 
any legal method although the full period of the certificates has not 
expired. 

In reply to your inquiry whether you are authorized to To the 

... r>i /r- /"iTi "i-r»/» Insurance 

endorse a requisition ot the omcers ot the Industrial I3enent commisBioner. 
Order for the withdrawal of the funds in the hands of the j^^^^^ 
Treasurer of the Commonwealth for payment of matured cer- 
tificates, the certihcatcs having been issued for a term of five 
years which has not yet expired, I have to say that, in my 
opinion, the statute does not al3solutely forbid the making of 
such requisition under any circumstances until the maturity of 
the certificates by expiration of the period specified. If the 
statute should be so construed, it might make it impossible to 
wind up the corporation, or liquidate its liabilities, within that 
time. I believe the funds of several of these orders have 
already been withdrawn, without question, to be applied, 
wholly or partially, to payment of certificates not matured by 
lapse of time. There are other events beside the expiration 
of the specified period, which, in my opinion, are fully within 
the reasons of the statute, and may be taken, for the purposes 
of a requisition upon the Treasurer, as equivalent to the matur- 
ity of the certificate. If the corporation is being properly 
wound up l)y any legal method, I see no reason why the funds 
may not be drawn for payment of the certificates, notwith- 
standing the period of the certificates has not expired. 

St. 1890, c. 421, § 14, requires the requisition to set forth 
that the funds withdrawn are " to be used for the purposes of 
the trust ; " which is broad enough to cover all purposes law- 
fully consistent with the uses to which the funds are held, and 
any event or state of things which may be taken as equivalent, 



58 OPINIONS OF THE ATTORNEY-GENERAL. 

for purposes of payment, to the muturity of the certificates by 
expiration of the full period. I find also, on looking at one of 
the certificates issued by the order in question, that there is 
ground for regarding it as a matured certificate, in the sense of 
the statute, at least so far as the present inquiry is concerned. 



Interchangeahle Mileage Tickets, — Constitutional Law. 

An act requiring railroad corporations to provide mileage tickets which 
shall 1)0 accepted for passage and fare upon all railroad lines in this Com- 
monwealth cannot upon its face be declared unconstitutional. 

Under the reserved power of amendment, alteration or repeal, the Legislature 
may reasonably regulate charges for the carriage of passengers and pro- 
vide the manner in which such charges may be enforced and collected. 

PresWentof -^^ rcqucstcd l)y the order of the honorable Senate, I re- 

the Senate. spcctfully subiuit my opinion of the constitutionality of the 
Junes. bill entitled, " An act to require railroad corporations to pro- 

vide mileage tickets which shall be accepted for passage and 
fare upon all railroad lines in this Commonwealth." 

So far as I am informed, no provision of the bill is ques- 
tioned except that which requires each railroad corporation to 
accept, for passage upon its line, the mileage tickets of other 
roads. 

It has been the law of Massachusetts since 1831 that all acts 
of incorporation shall at all times be liable to amendment, alter- 
ation or repeal, at the pleasure of the Legislature. It is no 
longer open to doubt that under this reserved power, if not 
independently of it, the Legislature may impose conditions or 
restrictions upon the exercise of a railroad franchise, within 
certain limits, Avhich are l)road enough to include the reason- 
able regulation of charges for the carriage of passengers, and 
the manner in which they may be enforced and collected. It 
has "the right to make any reasonable amendments regulating 
the mode in which the franchise granted shall be used and en- 
joyed, which do not defeat or essentially impair the ol)ject of 
the grant, or take away any property or rights which have 
become vested under a legitimate exercise of the powers 
granted." It is settled that, in the exercise of this power, the 



A. E. PILLSBURY, ATTORNEY-GENERAL. 59 

Legislature may subject the corporation to additional l)urden8 
or expenses, without making or providing compensation for its 
reduced profits or the impaired value of its franchise. 

The power does not extend so far as to include the absolute 
taking or destruction of property without compensation, nor 
does it extend so far as to require the corporation to serve the 
public without reasonable compensation. In determining what 
regulations or restrictions are reasonal)le, under particular cir- 
cumstances, much is left to the discretion of the Legislature, 
with which, if reasonably exercised, the courts will not inter- 
fere. 

If the requirement to carry passengers at a uniform rate of 
two cents per mile was in (juestion, the validity of such a re- 
quirement might dej)end u})on many facts which would be a 
subject of legislative incjuiry. Such a rcquirment is, in my 
opinion, within the power of the Legislature, if two cents per 
mile is a reasonable rate under all the circumstances. I un- 
derstand, however, that most, if not all, of the corporations to 
which the bill applies, are now and for some time past have 
been voluntarily issuing and selling mileage tickets at the price 
of twenty dollars for one thousand miles, and that the question 
at issue is only of the power of the Legislature to require each 
corporation to accept all these tickets for passage over its 
own line. 

It is possible that this might in some cases result in compel- 
ling a cor})oration to carry passengers on the receipt of the 
tickets of another corporation which may be unable to redeem 
them, or whose credit or financial responsibility may l)e im- 
paired ; but it must be assumed that the Legislature has con- 
sidered this, with the other circumstances of the case, and it 
may have become satisfied that neither this nor any other injury 
to the railroads is likely to result from the bill. I do not think 
it is to be assumed in advance that any such result will follow. 
Upon this point, as l)earing upon the reasonal)leness of the 
requirment, the courts may properly consider the other pro- 
visions of the bill which are designed to protect the railroads 
against such consequences. The constitutionality of a legis- 
lative act is not necessarily to be tested by the most extreme 



GO OPINIONS OF THE ATTORNEY-GENERAL. 

case, nor is it necessarily unconstitutional because it might, in 
some possible contingency, subject a corporation to some 
unusual burden or disadvantage. If this is a reasonable require- 
ment, in the public interest and for the public benefit, under 
the circumstances which affect the case, it is not, in my opinion, 
beyond the power of the Legislature. I conclude, therefore, 
that upon its face the bill cannot be declared unconstitutional.* 



"Weaving Fines, — Constitutional Law. 

An act to prohibit deduction of wages of employees engaged at weaving 
for inperfections not arising from their carelessness is unconstitutional, 
because it prevents an employer from protecting himself by contract 
against liability to pay for imperfect work the price of good work, how- 
soever the imperfections arise. The Legislature has power to make 
reasonable regulations of the exercise of the right of an employer to 
protect himself against consequences of imperfect work and to prohibit 
imposition of fines under any circumstances. 

J° ^'J® ^ ^ As requested by the honorable House, in its order of 7th 

Speaker of the i J ' 

^ntatives^^^'^^" lust., I respcctfully submit my opinion of the constitutionality 
1892 of House Bill No. 510, entitled " An Act to prohibit the deduc- 

* tion of the wages of employees engaged at weaving," f with the 

pending amendments. 

In the light of the recent decision of the Supreme Court, 
under St. 1891, c. 125, in Com. v. Perry, 155 Mass. 117, it 
may be assumed that it is within the poAver of the Legislature 
to prohibit the direct imi)osition of a fine by an employer for 
imperfect work, and that it is beyond the legislative power to 
prevent an employer from protecting himself by contract 
against the liability to pay as much for imperfect as for perfect 
work. 

Section 1 of the present bill appears to consist of three sepa- 
rate, or separable, propositions : first, the grading system 
shall not afiect or lessen the weaver's wages unless the imper- 
fection arises from his carelessness or wilful neglect ; second, 
in no case shall the weaver's wages be affected, by fine or 



* The statute (St. 1892, c. 389) was declared unconstitutional in Attorney-General v. 
Old Colony Railroad, 160 Mass. 62. 
t Enacted as St. 1892, c. 410. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 01 

otherwise, unless the alleged imperfection is pointed out to 
him ; and, third, no fine shall be imposed for imperfect weaving, 
unless the above provisions are complied ^vith. 

The first of these propositions is broad enough to forbid, and 
seems designed to forbid, any reduction or diminution of the 
weaver's wages, by contract or otherwise, except for imperfec- 
tions due to his carelessness or wilful neglect. I find no ground 
in the recent decision of the court on which a distinction can be 
maintained between imperfections due to the weaver's careless- 
ness or neglect, and those that may arise without carelessness or 
neglect. The court seems to hold that it is beyond the power 
of the Legislature to prevent the employer from protecting him- 
self by contract against the requirement or the lial)ihty to pay 
for imperfect w^ork the price of good work, without reference 
to the question how the defects in the work arise. 

The second clause of the bill, taken by itself, does not inter- 
fere with the power of the employer to reduce or withliold the 
wages of the weaver, by fine or otherwise, except by annexing 
to its exercise the condition that the alleged imperfections in 
the work shall be pointed out to the weaver. This is merely a 
regulation, and apparently a reasonable regulation, of the 
exercise of the right of the employer to protect himself against 
the consequences of imperfect work. 

The third clause, that no fine shall be imposed except under 
certain circumstances, appears to me to be free of doubt as to its 
constitutionality, as the Legislature may apparently prohibit the 
imposition of a fine under any circumstances. 

In my opinion, therefore, that part of the bill which provides 
that the grading system shall not aft'ect or lessen the wages of 
the weaver except in case of imperfections arising from his 
carelessness or wilful neglect, must now be regarded as open 
to objection on constitutional grounds. Except to this extent, 
I do not think the bill can be said to exceed the power of the 
Legislature. 



62 OPINIONS OF THE ATTORNEY-GENERAL. 



Eminent Domain, — Constitutional Law, — Trial by Jury. 

A special act, authorizing the taking by a church of tombs and rights of in- 
terment, which provides that the measure of damages for such taking 
shall be the cost of a lot and tomb in a particular cemetery, with the ex- 
pense of removal and reinterment of the bodies therein, is unconstitu- 
tional, because it impairs the right of trial by jury. 

8peak1;r of the ^ '^^^^ requGsted by the order of this date of the honorable 

SntativeB!''^'^ House to give my opinion of the constitutionality of the bill 

1892 entitled, " An Act to authorize the Park Street Congregational 

June 14. . . . . . 

Society in Boston to acquire all tombs and rights of inter- 
ment under the meeting-house of said society, and to proliibit 
further interments therein." * I understand that the question 
arises out of that part of § 1 which provides that in the ap- 
praisal of the damages for the taking of the tombs and rights 
of interment by the society the measure of damages shall be 
the cost of a burial lot and tomb in Forest Hills or ]\Iount 
Auburn cemetery, with the expense of the removal and reinter- 
ment of l)odies therein. 

In this, as in all cases of the taking of private property for 
a public use, or upon grounds of the public benefit, the prop- 
erty-owner is entitled to a trial by jury of the question of his 
damages. By express provision of Article X, of the Bill of 
Rights, he is entitled to " reasonable compensation," and by the 
general rule of law which governs the assessment of damages 
in such cases, he is entitled to the fair value of the property 
taken ; and he is entitled to have this ascertained by and ac- 
cording to the judgment of the jury, under the rules of law. 
Otherwise he has only the form, without the substance, of trial 
by jury. The necessary effect of the bill, if allowed to operate, 
is to confine the jury, in assessing the damages for the taking 
of the property, to the cost of another piece of property, which 
is apparently treated by the bill as a substitute and equivalent 
for the rights and property taken, but which may be more or 
less. If the bill can be taken only as prescribing a rule for 
the assessment of damages, it prescribes a special rule for a 
single case, which of itself is objectionable. In my opinion, 

* Enacted as St. 1892, c. 437. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 63 

the provision in question must be regarded as an impairment 
of the constitutional right of trial by jury, if it is not also a 
violation of the uniformity required in such legislation, and an 
invasion by the Legislature of the province of the judiciary. 



Governor. 



Militia, — Target Practice, — Cities and Towns. 

Under St. 1887, c. 411, § 90, cities and towns are required to furnish, with 
the grounds for target practice, such targets and other structures as are 
reasonably necessary to the use of the place for that purpose. 

Upon the question raised by the communication of Mai. To the 
William A. Pew, Jr. , to the Adjutant-General, referred to me 
by Your Excellency, I have to say that, in my opinion, cities ' ^"'^ ^ 
and towns are required by St. 1887, c. 411, § 90 (formerly 
Pub. Sts., c. 14, § 92), to provide, with the grounds or places 
for target practice which that section requires them to furnish 
for the militia belonging within their respective limits, such 
targets and other structures as are reasonably necessary to the 
use of the place for that purpose. The policy of this section 
of the act is to make the local accommodation of the militia a 
local charge. The words "grounds or places for the parade, 
drill and target practice of the militia" may be construed to 
include such structures or other appurtenances as are necessary 
to the use of the grounds or places for the purposes for which 
they are provided; and, in my opinion, in view of the intent 
and purpose of the statute, they are to be so construed. 



Passamaquoddy Indians. 

Upon a petition of the Passamaquoddy Indians, alleging a violation of their 
rights by the State of Maine under the act of separation, and a denial of 
such rights by the courts of Maine, the Executive Department of Massa- 
chusetts is under no obligation to remove, nor in the absence of legislative 
action would it be warranted in removing, the case to the Supreme Court 
of the United States from the courts of Maine. 

I return herewith the petition of the members of the Passa- To the 

. . Governor and 

maquoddy tribe of Indians. The substance of the petition seems council. 
to be that the State of Maine has interfered with the hunting juiy 23. 



64 OPINIONS OF THE ATTORNEY-GENERAL. 

and fishing rights of the petitioners, in sup})osed violation of 
tlie obligations assumed by Maine under the act of separation ; 
that the courts of Maine deny or disregard these rights, and two 
of the tribe are now under conviction of some offence not 
specified, but committed, I presume, in the alleged exercise of 
some right which has been denied by the courts of Maine, which 
conviction is supposed to be reviewable by the Supreme Court 
of the United States. And the petition is that the Executive 
Department of Massachusetts intervene and remove the case by 
writ of error to that court, in behalf of the persons so convicted. 
It is, of course, to be presumed that any judgment which the 
courts of Maine have rendered is in accordance with the laws of 
that State. If the laws of Maine are unjust to the petitioners, 
they should go to the Legislature of Maine for redress. If the 
judgment of the Maine courts is in disregard of rights which 
belong to the petitioners under the act of separation or other- 
wise, or operates to deprive the petitioners of such rights, it is 
possible that it may be reviewable by the Supreme Court of the 
United States, But I see no reason to suppose that Massachu- 
setts is under any obligation to the petitioners. The petition, 
at least, does not disclose enough to show any such obligation ; 
and it appears to me also that if Massachusetts is under any 
obligation to interfere, or would be warranted in interfering, 
the case ought to be a subject of legislative action before any 
action of the Executive Department. It may be that a further 
presentation of facts would modify this view, but this is all that 
can be said upon the facts set out in the petition. 



To the Upon reviewing the case of the Passamaquoddy Indians, as 

Uovornor and ^ _ ... . . ' 

Council. presented in their petition, I find nothing to modify the view 

December 16. wliich I cxprcsscd to you uudcr date of July 23, 1892. It is 
clear that the Commonwealth of Massachusetts is under no legal 
obligation to the Passamaquoddy Indians. If it is under any 
moral obligation to them, it can hardly extend any fiirther than 
to see that they are not subjected to any injustice for which 
Massachusetts is in any degree responsible. They cannot be 
said to be unjustly dealt with under the judgment of the Supreme 



A. E. PILLSBURY, ATTORNEY-GENERAL. 65 

dourt of Maine, if that judgment is right ; and I see no occasion 
to dou]:»t that it is, and no reason to suppose that it can be or 
would be reversed if carried to the Supreme Court of the United 
States, as the petitioners desire. Nor, so far as I can see, is 
Massachusetts in the least degree responsible for the position, 
however unfortunate, in which the Indians now find themselves. 
At all events, the question whether Massachusetts should inter- 
fere in the case is a question for the legislative rather than the 
executive branch; which, in my opinion, is not called upon to 
act unless it chooses to bring the subject to the attention of the 
Legislature. The expediency of doing even this is, to say the 
least, open to question. 



Municipal Indebtedness Act, — Cities and Towns, — Borrowing 

Power. 

In ascertaining the indebtedness of a city or town as affecting its borrowing 
power under tlie municipal indebtedness act, its obligations for ordinary 
current expenses are excluded, and temporary loans in anticipation of 
taxes are included. 

I acknowledge the receipt of your inquiry Avhether, in Tothe 
considering the limit of municipal indebtedness as affecting the '1*892" 
borrowing power, current obligations of the municipality for all ' ^"'^ '-^ - 
purposes, such as bills due for various purposes, and loans 
made in anticipation of taxes, are to be included. 

It is practically settled that the municipal indebtedness act 
does not apply to contracts for ordinary and lawful current 
expenses (^Smith v. Dedham, 144 Mass. 177) ; and, if they are 
not within the act, they are not to be included in ascertaining 
the amount of indebtedness. The Legislature doubtless con- 
sidered that, in the ordinary course, these would not amount 
to a very large sum ; and that it might be difficult or impossible 
to ascertain the amount of them at any given time ; and, while 
they are not expressly excepted, the court seems to consider 
that they are excluded l)y implication. 

But debts for temporary loans in anticipation of taxes are 
debts for borrowed money ; and the principal, if not the sole 
purpose of the act was to restrain the borrowing power. These 



QQ OPINIONS OF THE ATT0RNI:Y-GP:NERAL. 

debts arc fully within the language of the prohibitions of § § 1 
and 4, and are not within any of the express exceptions of the 
act ; and many, at least, of the reasons on Avhich the act is 
based apply to such debts equally with any other. The only 
distinction in the act between temporary loans in anticipation of 
taxes and other debts for borrowed money is, that the former 
may be incurred by ordinary vote, and must be paid out of the 
taxes of the year (St. 1885, c. 312), while the latter require 
a two-thirds vote, and may be payable on longer periods. It 
is evident, I think, from the form in which the original nuinic- 
ipal indebtedness act (St. 1875, c. 209) was re-enacted in 
Pub. Sts., c. 29, that the commissioners on revision, and the 
Legislature, understood that temporary loans in anticipation 
of taxes were not an exception to the act, but were included 
within it. The opposite construction, if it were possible under 
the language of the act, would open the way to evade it, and 
would be liable to lead to the very results which it was designed 
to prevent. I understand that a different view has been adopted 
in the practice of some cities, but it does not seem to me per- 
missible, under the present form of the act. 

I am of opinion, therefore, that in ascertaining the amount of 
indebtedness of a city or town, as affecting its borrowing power, 
its obligations for ordinary current expenses are not to be 
included ; but that debts for temporary loans in anticipation 
of taxes are to be included. 



Aiiguet 29. 



Holiday. 

The Governor has authority to make the 400th anniversary of the discovery 
of America a day of thanksgiving for the purposes of Pub. Sts., c. 77, § 8. 

Gover^nor ^ rcspcctfully reply as below to Your Excellency's request to 

1892 be advised as to your authority, under Res. 1892, c. 101, to 

make the 400th anniversary of the discovery of America a day 
of thanksgiving, for the purposes of Pub. Sts., c. 77, § 8. 

The statutes do not define what a legal public holiday is, nor 
what days shall be legal public holidays, except as to Labor Day 
(St. 1887, c. 263), the Monday following Christmas, when that 



A. E. PILLSBURY, ATTORNEY-GENERAL. 67 

occurs on Sunday (St. 1882, c. 49), and Memorial Day (St. 
1881, c. 71) ; as to which it is provided only that each of these 
days shall be " a legal public holiday to all intents and pur- 
poses in the same manner as Thanksgiving, Fast, and Christmas 
days, the 22d of February, the 30th day of May and the 4th 
day of July are now by law made public holidays." As to these 
days, the statutes provide only that the General Court shall 
not sit, nor the public offices be open (Pub. Sts., c. 2, § 34) ; 
and that commercial paper, etc., falling due shall be payable 
on the preceding day (c. 77, § 8) ; and that the courts shall 
not be opened except for certain necessary business (c. 160, 
§4). 

In my opinion, while the resolve does not indicate the pur- 
pose of the Legislature to make the day in question a legal 
public holiday, there is a sufficient implication, from Pub. Sts., 
c. 77, § 8, of authority in the Governor to appoint a day of 
festing or thanksgiving at his discretion ; and under this implied 
authority you may, if you see fit, proclaim the anniversary 
referred to in the resolve a day of thanksgiving, so as to bring 
it within the provisions of § 8. Your Excellency will natu- 
rally consider, whether it is expedient to do this in view of 
the fact that the Legislature has acted upon the subject, and has 
confined itself to requesting "a due observance" of the anni- 
versary, without declaring, or directing it to be declared, a legal 
public holiday. 



Insane Person, — Guardianship, — Transfer. 

Pub. Sts., c. 79, § 13, providing for the consent of tlie guardian of an insane 
person to his transfer by the Board of Lunacy and Charity from one 
asylum to another, does not prevent the transfer by such Board of one who 
has no guardian. 

The questions submitted to me as to the construction of the to the Board 
last clause of Pub. Sts., c. 79, § 13, as stated in your letter of charity. 
7th inst., are in my opinion to be answered as follows : — September 9. 

1. There is no natural guardian of a person of full age. The 
natural guardian of a minor is his father; and if he has no 
father, his mother. 



68 



OPINIONS OF THE ATTORNEY-GENERAL. 



2. Natural guardianship of an insane minor does not continue 
after the minor arrives at the age of majority. 

3. In my opinion the transfer of an insane person from one 
asykim to another, provided for by the final clause of § 13, is 
not limited to those who have a legal or natural guardian. It 
is possible to suppose either that the Legislature intended to 
make the consent of the guardian an absolute limitation upon 
the power of transfer, so that it cannot be exercised in any case 
in which there is no guardian ; or that the purpose was only to 
provide that the transfer shall not be made Tvithout the consent 
of the guardian, if the insane person has a guardian. If the 
Legislature had intended the former purpose, it would have 
been likely, I think, to express it in somewhat different 
language. The latter construction makes the statute more 
effective, by allowing it to operate upon all members of the 
class to which it applies, and is more consistent with its general 
purpose and object, which is the care and management of the 
insane by the Board, to which the consent of the guardian in 
the particular case is only an incident. This construction is 
somewhat strengthened by the history of the clause in question. 
St. 1880, c. 250, § 4; St. 1881, c. 183. 



Trustees of Hospital Cottages for Children, — Tenure of 

Office. 



To the 
Governor. 

1892 
September 20. 



Under St. 1892, c. 407, it is the duty of the Governor to appoint five trustees 
of the Hospital Cottages for Children, and upon such appointment the 
tenure of office of the eleven trustees appointed under St. 1890, c. 354, 
will terminate. 

A statute repealing a former statute creating a special tribunal, puts an end 
to the tribunal unless it is secured by constitutional provision or other 
legislation. 

In reply to your request to be advised as to the effect of 
St. 1892, c. 407, upon the tenure of office of the eleven 
trustees of the Hospital Cottages for Children, appointed by 
the Governor under St. 1890, c. 354, I have the honor to say 
that, in my opinion, the later act supersedes the former, and 
that it is now your duty to appoint five trustees as therein 



A. E. PILLSBURY, ATTORNEY-GENERAL. 69 

provided ; and that upon such appointment the tenure of office 
of the trustees appointed under the act of 1890 will terminate, 
if indeed it did not terminate with the passage of the act of 
1892. 

There is no doubt of the power of the Legislature to put an 
end to the term of office of the first board of trustees ; and the 
general rule is that a statute which repeals, without any saving 
words, a former statute creating a special tribunal, puts an end 
to the tenure and authority of the tribunal, unless that is 
secured by constitutional provision or by other legislation 
which is obviously unaffected by the new act. I see nothing 
in the present statute to take it out of the operation of this 
rule. The purpose of the Legislature seems to have been to 
change the scheme of management of the hospital by substitut- 
ing five trustees for the eleven provided for by the act of 1890 ; 
and this construction of the statute is very much strengthened 
by the express repeal of all that part of the former statute 
relating to the appointment of trustees. 



Registration of Voters, — Residence, — Removal within Six 

Months. 

Prior to 30th constitutional amendment six months' continuous residence in 
one place next preceding the election was essential to the right to 
vote. 

In case of removal from one place to another within the Commonwealth dur- 
ing the six months next preceding the election, under 30th constitutional 
amendment and St. 1892, c. 351, § 4, one may vote in the place where he 
would have been entitled to vote if he had not removed therefrom, as that 
is the place where he resided on the first day of the six months period. 

I reply as below to your request for my opinion upon certain To the 
questions arising under St. 1892, c. 351, § 4, relating to the 1892 
right to vote of a person who removes from one place to o^^^^^* 
another within the Commonwealth during the six months next 
preceding the election, which you state as follows : — 

1. A voter resided in A. May 1, and removed to B. May 4, 
where he remains. In which of these places is he entitled to 
be resristered and to vote ? 



70 OPINIONS OF THE ATTORNEY-GENERAL. 

2. A voter resided in A. May 1, removed to B. May 4, and 
from B. to C. August 1. In which of these three places is he 
entitled to be reo;istered and to vote ? 

In view of the general importance and interest of the subject, 
I waive the question whether you are required, by the statute 
of 1891 or otherwise, to give any directions to town officers 
upon such a point. 

As the Constitution and laws stood prior to the adoption of 
the thirtieth constitutional amendment, in November, 1890, six 
months' continuous residence in one place next preceding the 
election was essential to the right to vote. The purpose of the 
amendment, and of St. 1892, c. 351, § 4 (originally St. 1891, 
c. 286, § 1), is to relieve a voter who removed during this 
period from the loss of his vote. They are to be liberally con- 
strued to tliis end, so far as may be. 

If a voter resides continuously in the same place for six 
months next preceding the election, he is not afiected by the 
constitutional amendment or the legislation under it, but derives 
his right to vote from this period of residence, as he did prior 
to the adoption of the amendment. Therefore, as the election 
this year occurs Xovember 8, if he removed after May 1, and 
on or before May 8, wliich is the first day of the period of six 
months next preceding the election, and remains in the place 
to which he thus removed until the election, he acquires the 
right to vote there. 

But if he removed after May 8, he ceases to be entitled to 
vote anywhere by virtue of six months' continuous residence 
next preceding the election, and comes within the operation of 
the amendment and the act of 1892. In such case, he may 
vote in the place where he would have been entitled to vote if 
he had not removed therefrom ; that is, in the place where he 
resided May 8. 

It follows that, in each of the cases stated by you, the voter 
is entitled to be registered and to vote in B. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 71 



Civil Service, — Superintendent of "Water Inspectors of 

Boston. 

The superintendent of water inspectors of the city of Boston is not a person 
" doing inspection service " within the civil service rules. 

In compliance with the request of the commission for my J^,.*^^g^3^^ 
opinion whether the position of superintendent of water inspect- missioners. 
ors of the city of Boston is within the civil service rules, I have October 12. 
to say that I do not find in the papers submitted to me sufficient 
reason to overrule the views of the corporation counsel and 
water registrar. The statement does not disclose that his 
ordinary duties are in any part clerical, in the sense of the 
rules, and indicates the contrary ; so that, upon this statement, 
he cannot be included in class 3 of schedule A. The descrip- 
tion of his duties in the statement of the registrar would make 
it possible to bring him within the language of class 7 of 
schedule B, as a person " doing inspection service ; " but, upon 
consideration of the entire law and system of rules, I think 
these words should not be construed to include him. Such 
inspection service as he has to do seems to be only of a super- 
visory character, and to be done as a superintendent rather than 
as an inspector. Without undertaking to lay down any rule of 
construction applicable to all cases, or any precise rule appli- 
cable to this case, it appears to me that the civil service act (St. 
1884, c. 320) and the rules should, in general, be so construed 
as to distinguish between positions of routine, so to speak, 
which ordinarily do not involve administrative or discretionary 
powers, on the one hand ; and, on the other, positions which 
involve the exercise of judgment, discretion, authority, and 
responsibility ; and that the general scheme is to include the 
former and not to include the latter class within the system. 
The officer in question, so far as his duties are described to me, 
seems to be within the latter class. 



72 OPINIONS OF THE ATTORNEY -GENERAL. 



Civil Seevice, — Office, — Employment, — Elective Officer. 

An " office " as distinguished from an " employment " involves " a delegation 
of a portion of the sovereign power to, and the possession of it by, the 
person filling the office." 

A clerk whose duties are described by the word "employment" cannot be 
made an " elective officer " in the sense of § 15 of Civil Service Act by 
the appointing board going through the form of electing him. 

An appointment so made without requisition upon the Civil Service Board or 
certification of the person elected, is illegal. 

To the Civil In compliancG with your request, I submit my opinion upon 

miseioners the legality of the recent election of a female clerk by the 
November 21. boarcl of ovcrsccrs of the poor of the city of Lawrence without 
requisition upon the Civil Service Board or certification of the 
person elected. It appears by your statement of the facts that 
"the position calls merely for clerical service and assistance to 
the chief clerk, for which the occupant receives about a dollar 
and a half a day ; " and that the board of overseers justifies its 
action upon the ground that the occupant was elected to the 
place, and so is an " elective ofl[icer," in the sense of St. 1884, 
c. 320, § 15 ; conceding, I presume, that she is within the civil 
service rules, unless the fact that she was elected instead of 
being appointed takes her out of their operation. 

The case appears to me to turn upon a different point. 
There is a recognized distinction between an office and an em- 
ployment under the government ; and the civil service act 
recognizes and affirms this distinction, by providing in one 
clause for ' ' the selection of persons to fill offices in the govern- 
ment of the Commonwealth, and of the several cities thereof," 
and in another for " the selection of persons to be employed as 
laborers or otherwise in the service of the Commonwealth, and 
the several cities thereof." The same distinction has often 
been recognized by the courts, and it has been judicially de- 
clared that an office, as distinguished from an employment, 
involves ' ' a delegation of a portion of the sovereign power to, 
and possession of it by, the person filling the office." 

The question whether this clerk is an officer or an employee 
of the city of Lawrence is easily answered, and the answer 
disposes of the case. She does not appear to have any part 



A. E. PILLSBURY, ATTORNEY-GENERAL. 73 

in the government of the city, or any powers or duties of an 
official character. On the contrary, hei* duties are plainly such 
as are properly described by the word "emplo3Tiient," as used 
in the statute. 

Under these circumstances, the method of selection is immar- 
terial, although other cases might turn upon it. The appoint- 
ing board, by going through the form of an election, cannot 
make her an officer who obviously is only an employee. 
Nobody would contend that laborers on the streets or sewers, 
for example, can be made "elective officers "of the city by 
calling them so, or by electing them by ballot. The decisive 
question is whether the real character and functions of the 
place in question make it an office or an employment, in the 
sense of the law and in view of the distinction thereby estab- 
lished. It may be difficult in some cases to determine whether 
it is on the one side of the line or the other, but in the present 
case I see no room for doubt. 

Upon your statement, the clerk is not an " elective officer," 
in the sense of the law, and for this reason I am of opinion 
that the appointment, as made, is illegal. 



Delinquent Assessors, — Penalty, — District Attorney. 

The Secretary of the Commonwealth in cases of delinquent returns from 
assessors should request the District Attorney where they reside to 
proceed for the enforcement of the penalty prescribed by Pub. Sts., 
c. 11, §56. 

In reply to yonr inquiry as to the proper proceedings to be To the 
taken for the enforcement of the returns of assessors, under 1592 
Pub. Sts., c. 11, § 56, I have to say that the penalty therein ^^^o^f^rso. 
provided is to be enforced by action of tort, or indictment in 
the Superior Court ; and it will l)c proper for you to put the 
names and residences of the delinquents, with the particulars 
of the case, before the District Attorney of the district in which 
they reside, requesting him to proceed for enforcement of the 
penalty. 



74 



OPINIONS OF THE ATTORNEY-GENERAL 



To the 
Governor. 

1892 
December 1. 



Cities and Towns, — Failure to appoint Inspectors of Domes- 
tic Animals, -^Penalty. 

Cities and towns are not liable for the penalty provided by St. 1887, c. 252, 
§ 14, for failure to appoint inspectors as required by St. 1892, c. 432. 

In reply to your inquiry, in behalf of the Board of Cattle 
Commissioners, whether St. 1887, c. 252, § 14, for the sup- 
pression of contagious diseases among domestic animals, laying 
a penalty upon any person who fails to comply with a regula- 
tion made or order given by the commissioners in the discharge 
of their duty, applies to the failure of a city or town to appoint 
inspectors as required by St. 1892, c. 432, so that a delinquent 
city or town thereby becomes liable to the penalty, I have the 
honor to say that, in my opinion, the penalty in question can- 
not be applied to such a case. 



To the 

Insurance 

Commissioner. 

1892 
December 3. 



Insurance, — . Distributing Policies as Advertisements, — 
License, — Insurance Agent. 

The purchasing of policies of accident insurance by wholesale and distributing 
them as advertisements is not prohibited by law. The distributor must 
be duly licensed as an insurance broker, or have a certificate of authority 
to act as an insurance agent. 

I have your letter of inquiry whether accident insurance 
policies of a foreign company, lawfully transacting business 
here, can be purchased by wholesale from a licensed agent or 
broker here, and given away hy the purchaser as an advertise- 
ment of his own business or as otherwise stimulating his trade ; 
and whether, in such case, the purchaser and distributor of the 
policies must be licensed as an insurance agent or broker, in 
order to lawfully transact this portion of the business. 

As to the first inquiry, whatever may be said of the policy 
or expediency of such a practice, and howsoever it might be 
regarded by the courts in an action against the company on 
such a policy, I find nothing in the law to forbid it, either 
expressly or by necessary implication, and no penalty which 
can be applied to it. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 75 

As to the second inquiry, it is plain that the purchaser and 
distributor of the policies, under the circumstances stated, if 
not a duly licensed insurance broker, must be deemed an 
insurance agent, within the description of St. 1887, c. 214, 
§ 87. He transmits for persons other than himself policies of 
insurance from the company, and offers and assumes to act in 
the negotiation of such insurance. Under the form of policy 
submitted with your statement, there is no completed contract 
until the autograph signature of the insured is affixed to the 
policy. The purchaser and distributor is the person who 
brings the insured to the company, or brings him to the making 
of a contract with the company ; and the contract is made, 
presumably, upon his suggestion or invitation to or solicitation 
of the person to be insured, and is presumably made and 
delivered in his place of business, and under his supervision ; 
and he is the only person who comes in contact with the insured 
in the negotiation or completion of the contract. 

I am of opinion, therefore, that such business cannot be law- 
fully transacted by any person not duly licensed as an insurance 
broker, or having a proper certificate of authority as an insur- 
ance ao;ent. 



Legacy Tax Act, — Exemption of Charitable Institutions. 

Legacies to "literary, benevolent, charitable and scientific institutions" in- 
corporated in Massachusetts, are not subject to the legacy tax. A legacy 
to such an institution incorporated in another State and exorapt from 
taxation there, is subject to the legacy tax. Real estate in another State 
or country not converted into personalty by the operation of the vv^ill is 
not " property within the jurisdiction of the Commonwealth." 

Personal estate held in trust by a resident of Massachusetts for the benefit of 
a resident of another State for life, with a power or duty in the trustee 
to thereafter dispose of it by his own will, which he does, is subject to 
the legacy tax. 

I reply as below to your request to be advised as to the ap- To the 
plication of St. 1891, c. 425, to certain bequests under the will 1892 " 
of George A. Stevens, late of Essex County, where the will December 17. 
was proved. 

First. — If the National Sailors' Home and the Boston Marine 
Society come within the description of " literary, benevolent, 



76 



OPINIONS OF THE ATTORNEY-GENERAL. 



charitable, and scientific institutions incorporated within this 
Commonwealth," they are exempt from taxation, and the lega- 
cies to them are not subject to the legacy tax. 

Second. — In my opinion the legacy to the Marine General 
Hospital of Portland, i\Ie., is subject to the tax. The exemp- 
tion of § 1 of the legacy tax act extends, I think, only to such 
institutions whose property is exempted from taxation by our 
own law. And the fact that such an institution of another 
State may be exempted from taxation by the law of that State 
does not, in my opinion, bring it within the exemption of § 1. 

Third. — Real estate in a foreign State or country, at least 
unless converted into personalty by the operation of the will, 
which is not the case here, is not "property within the juris- 
diction of the Commonwealth," in the sense of § 1. The real 
estate in Calais, Me., is, therefore, not subject to the tax. 

Fourth.— T\iQ fund of $4,293.39 held in trust by the testa^ 
tor under the will of his wife for the benefit of a resident of 
Maine for her life, and thereafter to be disposed of by the 
testator in the manner requested by his wife in her will, is 
property within the jurisdiction of the Commonwealth and 
passed by the will of the testator, and is, therefore, witliin the 
description of § 1, and is subject to the tax. 



Legacy Tax Act. 



To the 
Treasurer. 

1893 
February 13. 



It is not the duty of the Treasurer of the Commonwealth, under St. 1891, c. 
425, to determine whether, in the case of a bequest in trust for a sister- 
in-law of the testator during life, with remainder upon her death to nieces 
of the testator, it is proper for the executors to have the life estate 
appraised and the amount of the tax thereon paid by the sister-in-law, 
and this amount deducted from the whole tax, the balance to be paid on 
the remainder, but this question must be settled by the court in accord- 
ance with the statute. 

In reply to your inquiry under the legacy tax act (St. 
1891, c. 425), whether, in the case of a bequest in trust for 
a sister-in-law of the testator during life, with remainder upon 
her death to nieces of the testator, it is proper for the executors 
to have the life estate appraised and the amount of the tax 



A. E. PILLSBURY, ATTORNEY-GENERAL. 77 

thereon paid by the sister-in-law and this amount deducted 
from the whole tax, the balance to be paid on the remainder, 
I have to say that in my opinion your duty does not require 
you to determine nor to concern yourself with this question. 
The executors and trustees must settle it with the court, in 
accordance with the statute, and I see no reason why it should 
be your duty, or how you have any authority, to give them 
any directions upon it. Even in the case provided for by § 2 
of the statute, of a bequest to a direct heir for life or years 
with remainder to a collateral heir, it is, in the first instance, 
at least, the duty of the executor or trustee, and not the duty 
of the treasurer of the Commonwealth, to see that the life estate 
is properly appraised and the tax paid. Inasmuch as in the 
present case the whole legacy is taxable, and as you have under 
§ 1 a remedy against the executors or trustees for the whole 
tax, and as the statute makes it the duty of the executors or 
trustees in all cases to have the proper appraisal made and to 
deduct and pay over the tax before settlement of their final 
account, I see no reason why questions of the time or method 
of appraisal, division or payment, should be cast upon you to 
determine. They must ultimately be determined by the court 
in any case, and the executors or trustees can go to the court 
at any proper time for determination of such questions, if they 
are unable to determine them without assistance. 



Insurance, — Nature of Contract, — Advertisement. 

The offer of a newspaper to pay a certain amount to a certain class of 
advertisers in case of death or disabling accident is, in effect, a contract 
of insurance, and unlawful. 

Upon your inquiry concerning the legality of an oifer of a Totheinsur- 
newspaper to pay a certain amount to a certain class of adver- sioner. 
tisers in case of death or disabling accident, I see no reason to April 26. 
doubt that the case is covered by my opinion given you under 
date of December 2, 1891,* in a similar case, that the transac- 
tion is in efiect a contract of insurance and is unlawful. 

* See p. 33, atite. 



78 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
Governor. 

1893 
Mays. 



Surveyor of Lumber. 

It is not the duty of the surveyor-general of lumber or his deputies to deter- 
mine the question of the liability of a person, not a sworn officer, who 
measures and marks lumber, and gives an account of the same for settle- 
ment under Pub. Sts., c. 63, § 19. 

There appears under the statute to be no duty of the sur- 
veyor-general of lumber, or his deputies, which requires them 
to determine such a question as that submitted to you by him 
under Pub. Sts., c. 63, § 19, and while it is probable that a 
person acting as described in his letter would render himself 
liable to the penalty, the proper way to raise and determine 
the question is to apply to the district attorney of the district 
in which any such supposed offence is committed, to prosecute 
it under the statute. 



Insurance, — Termination of Endowment Business of Fraternal 
Beneficiary Organizations, — Legislature, — Attempted Ex- 
ercise OF Judicial Power, — Constitutional Law. 



To the 
Governor. 

1893 
May 9. 



The Legislature may properly terminate the endowment business of fraternal 
beneficiary corporations by repealing the law under which it is transacted, 
but it cannot determine in advance the rights of all parties in the property 
of the corporations and require it to be so distributed among them. That 
is a judicial duty. 

It is doubtful whether the Legislature can provide that any person who may 
be appointed by an executive officer to examine books and accounts of 
corporations shall have power to summon and examine under oath any 
officer or agent of such corporation and any other person. 

In compliance with your request for my opinion of the con- 
stitutionality of the bill entitled ' ' An Act to terminate the 
endowment business of fraternal beneficiary corporations," * I 
have examined the bill, and notwithstanding the presumptions 
in favor of legislative acts, I am unable to avoid the conclusion 
that some of its provisions are in conflict with the Constitution. 

There is no doubt of the power of the Legislature to jiut an 
end to the endowment business of these corporations by with- 

* The bill was returned at the request of the Senate, amended, and finally enacted 
as St. 1893, c. 418. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 79 

drawing the legislative authority under which it is done. If 
the bill, after doing this, had provided for the winding up of 
the business by the courts in accordance with the rights of the 
various parties in interest under the law, it would be free of 
any constitutional objection. The stoppage of the business will 
leave the corporations with certain funds in their possession, 
some of them applicable to general, and others, it may be, only 
to special uses, and with a variety of contracts of diflerent 
classes upon their hands, which presumably they will be unable 
to fulfil. The rights of all the parties when the business stops 
are fixed by law. The inquiry into and determination of these 
various and perhaps conflicting rights, and the distribution of 
the assets among the various claimants, is essentially and 
necessarily a judicial duty, which must be left to the courts, 
proceeding according to the rules of law. But the bill, in 
§§3 and 4, provides for the appointment of a receiver to take 
possession of all the moneys and properties of the corporation, 
of which one common fund is to be made, without regard to 
particular rights in special funds, or to particular uses to which 
alone they may be held, and from this common fund to pay, 
first, the expenses of winding up the business ; second, the 
debts of the corporation contracted in the endowment business, 
in full, and third, to distribute the balance among the certificate 
holders or their beneficiaries in proportion to the amount of 
their claims at the passage of the act, on the basis of the amount 
paid by each in assessments. 

The bill thus undertakes to determine in advance what the 
rights of each class of claimants shall be, and what disposition 
shall be made of the assets among them. This, in my opinion, 
is in efiect an exercise of judicial rather than legislative powers, 
and is not within the province of the Legislature. It is possible, 
though not likely, that the bill may deal with the rights of the 
various claimants and dispose of the assets among them exactly 
as the court would do upon proper judicial proceedings. But 
this does not avoid the difficulty. The Legislature has no more 
power to do a judicial act correctly than to do it incorrectly. 
And unless the bill in fact deals with all the claimants and dis- 
poses of all the assets exactly as they would be dealt with and 



80 OPINIONS OF THE ATTORNEY-GENERAL. 

disposed of in court in accordance with law, or, in other words, 
if under the operation of the bill any money would go to one 
claimant which the courts, dealing with the subject in accord- 
ance with the established rules, might determine to belong to 
another, it is plain that such operation, which must to some 
extent be anticipated, would amount to undue interference with 
vested rights, if not also to the impairment of the obligation of 
contracts and deprivation of property without due process of 
law. 

There are other minor difficulties, especially in § 2. If the 
Legislature can confer the extraordinary powers therein speci- 
fied, to examine books and papers and summon and examine 
witnesses under oath, etc., upon a sworn and responsible 
executive officer, I doubt whether they can be conferred in 
advance upon any person to be appointed by him for the pur- 
pose, as the bill provides, without any official sanction or 
responsibility. 



Obstruction of Street, — Electric Wires, — Surveyors of High- 
ways, — Attorney-General, — Gas and Electric Light Com- 
missioners. 

If electric wires are erected in the streets of a town without authority, and 
materially impair public safety and convenience in travel, they may be 
removed by the surveyors of highways. It is a general rule that Attorney- 
General will not interfere if there is a remedy in hands of local authorities, 
or if the violation of the public right is not serious, or if his interference 
is sought chiefly for the protection of private interests. 

To the Gas and J havc vour communicatiou relatino; to the complaint of the 

Elect nc Light »' o i 

coramiasionerB. selectmen of Braintrcc to your Board, that certain persons have 
June 8. erected electric lighting wires in the streets of Braintree without 

authority. 

If these wires constitute an obstruction of the streets in the 
sense of the law, or if they materially aftect or impair the 
public safety and convenience in travel, I know of no reason 
to doubt that it is within the powers of the local surveyors of 
highways to remove them ; and there are expressions in some 
of the later decisions of the court indicating that electric light- 



A. E. PILLSBURY, ATTORNEY-GENERAL. 81 

ing wires may be so regarded. It is a general rule of law, 
applicable to these cases, that the court will not interfere if 
there is an adequate remedy in the hands of the local authori- 
ties ; and as a rule, therefore, it is held inexpedient by the 
occupants of tliis office to proceed in such a case. And if this 
were not so, I doubt if any Attorney-General would regard the 
unlawful erection of an electric lighting wire in any part of the 
State as a sufficient violation of the public right to call for his 
interference by proceedings in court. So far as it is desired to 
remove these wires for the purpose of preventing or avoiding 
competition with an existing electric lighting company, it 
clearly is not the duty of the Attorney-General to interfere ex 
officio. If the case is within St. 1887, c. 382, as amended by 
St. 1892, c. 274, your Board, as you are aware, is at liberty to 
proceed in it if it is considered of sufficient importance to make 
it your duty so to do, but from your present communication I 
do not infer that you have so determined the matter. 



Unauthorized opening of Streets, — Gas Company, — Quo War- 
ranto FOR Forfeiture of Charter, — Attorney-General. 

The unauthorized opening of streets by a gas company is such an improper 
exercise of its franchises as justifies the Board of Gas Commissioners in 
reporting it to the Attorney-General under St. 1885, c. 314, for such action 
as he deems expedient. 

Where a gas company has authority under its charter to supply gas in Boston, 
and opens the streets of Boston under a permit from the superintendent 
of streets, and the board of aldermen does not interfere, even if such per- 
mit is void there is no such improper exercise of its franchise by the gas 
company as to call for q\io loarranto for forfeiture of its charter; neither 
is there such a serious invasion of the public right as to call for the 
intervention of the Attorney-General. 

No construction of a statute is to be favored which requires the intervention 
of the law officer of the Commonwealth solely or principally for the pro- 
tection of the private interests of a business corporation. 

At the request of the Brookline Gas Light Company and il^ecu^Sn'^ 
others having an interest in the subject of your report to me Commissioners. 
that the Brookhne company is violating the provisions of its J une le . 
charter and of the Public Statutes by digging up the streets of 



82 OPINIONS OF THE ATTORNEY-GENERAL. 

Boston for the purpose of laying gas pipes therein without the 
consent of the board of aldermen, I have heard them and their 
counsel upon the questions involved, and it is proper for me 
to inform you of my conclusion. 

It was objected that the case is not within the gas commis- 
sion act (St. 1885, c. 314), and that your Board has no concern 
with it, as you are not charged with the care of the streets of 
Boston. While the statute literally includes all violations of 
law by a gas company, there are doubtless some offences to 
which it is not to be applied. If, for example, a gas company 
should publish a libel, I do not suppose the statute requires 
your Board or the Attorney-General to interfere. But if the 
Brookliue company has opened the streets of Boston without 
the consent of the board of aldermen or some equivalent au- 
thority, it is an irregular or improper exercise of its franchise, 
which, in my opinion, you are justified in noticing and report- 
ing to the Attorney-General for such proceedings as, in the 
language of the statute, he may deem expedient. Such pro- 
ceedings, however, must be at common law, as there is no ex- 
press statutory remedy in this case ; and the question arises 
whether any remedy is a})plicable or is likely to be maintained. 
The principal question of law involved is of the validity of 
the permits issued by the superintendent of streets of Boston, 
which constitute the only authority the Brookline company has 
or claims to have for opening the streets. There is much 
reason for the view which you seem to have adopted, that it 
does not rest with the superintendent of streets to determine 
whether one gas company or several shall supply the people 
of Boston, and while it may be for this executive officer to say 
when, where or how particular streets shall be opened by a 
company having authority, it is not for him to say whether 
they shall be opened at all by any particular company. On 
the other hand, it is argued with force that as the Brookline 
company has authority under its charter to supply gas in Bos- 
ton, it needs nothing more except leave to open the streets 
here and there, as its operations may require ; and that to 
o-rant this leave is an executive or administrative act, to be 
performed, under the charter amendments of 1885, by the 



A. E. PILLSBURY, ATTORNEY-GENERAL. 83 

executive officer having charge of the streets. The true view 
may be that it is, in the first instance, an executive act within 
the power of the superintendent of streets, unless and until 
the board of aldermen sees tit to interfere. In this view, the 
permits are not void, though voidal^le by the action of the 
aldermen. But I do not find it necessary to come to a definite 
conclusion upon the correctness of either of these views, as 
there are other considerations which, under the circumstances, 
determine the question whether I ought to proceed. 

The supposed violation of law liy the Brookline company 
consists, first, in an irregular or improper exercise of its fran- 
chise ; and second, in creating a nuisance by obstructing the 
public streets. As to the first point, the facts do not present 
a case which calls for the extreme remedy of quo warranto for 
forfeiture of the charter ; and apart from the nuisance, there 
seems to be no sufficiently clear and serious invasion of the 
public right to call for the intervention of the Attorney-Gen- 
eral, in view of other circumstances. 

As to the alleged nuisance created by opening the streets, 
the attitude of the local authorities is important to be considered. 
The executive branch of the city government is promoting the 
work, having made the contract under wliich it is being done. 
The board of aldermen does not attempt to interfere, and has 
yet taken no action either way. If the permits are void, the 
whole matter is in the hands and control of that Board. And 
whether they are void or not, it appears to me that under the 
company's charter of 1854 (St. 1854, c. 104, § 4), or Pub. 
Sts., c. 106, § 77, or in the exercise of the general legislative 
or judicial powers which they still retain, the aldermen have 
authority to prevent the opening of the streets by the Brookline 
company, unless they are now debarred from exercising it by 
the contract made with the company by the mayor ; and if the 
obligation of the contract puts the matter beyond their reach, it 
puts it also beyond mine. The aldermen may yet consent to 
the operations of the Brookline company, or affirm the action 
of the superintendent of streets ; and this would at once put an 
end to any proceedings in court. The court will not ordinarily 
interfere to abate or prevent a nuisance upon information of 



84 OPINIONS OF THE ATTORNEY-GENERAL. 

the Attorney-General while there is an adequate renied}^ in the 
hands of the local authorities, nor unless the invasion of the 
public right is of a substantial character and is clearly established 
and there is no other adequate and sufficient remedy. In this 
case there are other remedies liesides that in the hands of the 
local authorities, by indictment, or action for trespass, or per- 
haps under Pub. Sts., c. 186, § 17, though doubtless none of 
these are so efficient as a proceeding by the Attorney-General 
if maintainable. If all these rules should not be strictly applied 
to this case, they at least make it uncertain whether, in the 
present position of the matter and in view of the attitude of the 
board of aldermen, any proceeding in court can be maintained 
or will even enable the court to reach and determine the ques- 
tion of the validity of the permits or any other important 
question. If the local authorities appeared to be wilfully disre- 
garding the public interests, or consenting to a serious violation 
of the public right which clearly ought not to be permitted, the 
court would doubtless be more willing to interfere, but the 
circumstances do not appear to present such a case. 

It is contended by a competing company that the Brookline 
company can lawfully enter those parts of the city covered by 
the contract only under St. 1885, c. 314, § 10, after a public 
hearing before the board of aldermen, with a right of appeal to 
your Board on the part of any other company aggrieved l)y the 
decision ; and that I ought to interfere, as otherwise competing 
companies will be deprived of this right. It may lie possible 
to so construe this section, but you evidently do not so construe 
it, as your report is not put upon this ground, and it clearly is 
not necessary ; and a construction is not to be favored which 
requires the intervention of the law officer of the Commonwealth 
solely or principally for the protection of the private interests 
of a business corporation. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 85 



Legacy Tax Act. 

The Treasurer of the Commonwealth has no power to determine nor duty to 
advise in advance upon the question whether a particular legacy is sub- 
ject to a legacy tax, or as to the amount of a tax, or when it becomes 
payable, or any other similar question. 

It is clear that under the legacy tax act (St. 1891, c. 425), Treasurer. 
the Treasurer of the Commonwealth has neither the power to ^^^^ 

. . . June 19. 

determine nor the duty to advise in advance m any case as to 

whether a particular legacy is taxable, or for how much it is 
taxable, or when the tax shall be paid, or any other such ques- 
tion. The statute makes it the duty of executors, adminis- 
trators and trustees to ascertain, or cause to be ascertained, the 
amount of all taxes due the Commonwealth, and to pay them 
within a prescribed period, and makes it the duty of the court 
to find that all such taxes have been paid before allowing settle- 
ment of the accounts. The probate court is the only place in 
which such questions can be determined, and is vmdoubtedly 
the only place in which the Legislature intended to have them 
determined. There is no reason to believe that the Legislature 
intended to cast this duty or any part of it upon the Treasurer 
of the Commonwealth, and much less upon the county treasurers, 
to whom in any case the tax may be paid. I think it is clearly 
the duty of the several probate courts to take care of the interests 
of the Commonwealth in respect of this tax, in the settlement 
of the accounts of executors, administrators and trustees, as it 
is their duty to take care of the interests of all parties concerned, 
whether represented before the court by council or not ; and I 
presume there is no doubt or diflerence of opinion upon this 
among the judges of probate. The provisions of the statute 
which require notice to the Treasurer of all taxable cases, by a 
copy of the inventory or otherwise, and which give him power 
to proceed for administration, to have a special appraisal made 
in certain cases, and other like provisions, are intended to give 
and do give him a sufficient standing in court to work out the 
rights of the Commonwealth in all cases ; but they neither 
authorize nor require him to deal with these cases out of court. 
I think, therefore, that you are warranted in saying, and to 



86 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Adjutant- 
General. 



June 26. 



avoid difficulty will be obliged to say, in substance, in reply to 
all such inquiries, that you cannot undertake to answer or advise 
upon them, but that you claim in each case the maximiuii amount 
wliich may be due the Commonwealth under any construction 
of the statute ; and that executors, administrators and trustees 
must proceed upon this assumption, and must deduct and pay 
such amount unless and until the court determines otherwise. 



Firearms. 



Muskets or rifles are " firearms " in the sense of St. 1893, c. 367, § 124, though 
defective or disabled for firing. 

I have your request for my opinion whether under St. 1893, 
c. 367, § 124, a percussion muzzle-loading Springfield or other 
musket or rifle, the nipple of which is removed or plugged, or 
a breech-loading rifle of any pattern, of which the firing mech- 
anism is removed, is to be considered a firearm in the sense 
of that section. 

In my opinion there can be but one answer to this question. 
It is plain that a firearm is none the less a firearm because it 
may be temporarily disabled for efiective use. Nobody would 
doubt or dispute that in the common understanding such arms 
as you describe are firearms, notwithstanding their temporary 
defects. It is clear also that the reasons of the legislation 
against the organization or parade of unauthorized bodies with 
firearms are not met or avoided by the circumstances stated in 
your inquiry. Such firearms as you describe must, therefore, 
be taken to be within both the language and the intent of the 
statute. 



Appropriation, — Legislative Intent. 

A sum of money appropriated to Joseph Tilton may be paid to Josiah H. Til- 
ton if he is in fact tlie person for whom the appropriation is intended, 
and is identified as such by the description of him in the resolve. 

To the I have your request for my opinion whether under Res. 1893, 

Governor and »/ j .y x 

Council. c. 36, the payment therein directed to be made to Joseph Til- 

june26. tou cau lawfully be made to Josiah H. Tilton, for whom it was 



A. E. PILLSBURY, ATTORNEY-GENERAL. 87 

in fact intended. I understand that Josiah H. Tilton is in fact 
the only survivor of the men who attempted to rescue the crew 
of the "Aquatic; " that the name Joseph Tilton was inserted 
in the resolve with the intent to describe the sole survivor, and 
in the belief that his name was Joseph Tilton ; and that there 
is in fiict no such person as Joseph Tilton having any connec- 
tion with the matter. Under these circumstances I think the 
recipient of the payment is sufficiently identified by being de- 
scribed in the resolve as the survivor of the men who attempted 
the rescue ; and that, in view of tliis and the other facts, the 
mistake in the name may be disregarded, and the payment 
made to Josiah H. Tilton. 



Inquest, — Stenographer's Bill, — Railroad. 

A private freight railroad track owned and operated by a copartnership is not a 
railroad within the meaning of St. 1888, c. 365, so as to authorize payment 
by the Commonwealth of a stenographer's bill for taking evidence at an 
inquest on a death by accident on such road. 

In reply to your inquiry arising under St. 1888, c. 365, J^^^^^^^. 
I have to say that in my opinion this statute cannot be con- is^s 

strued to require payment by the Commonwealth of a bill for * 

reporting the evidence at an inquest upon the death of an 
employee killed by accident upon a private freight railroad 
track owned and operated by a copartnership. Very likely the 
Legislature would have included such cases if they had been 
thought of; but the purpose of the statute evidently is to put 
these bills upon the same footing as the expenses of the Board 
of Railroad Commissioners, and to require papiient of them 
by the Commonwealth only so far as they can be assessed upon 
and collected of the railroad corporations, No part of the 
expenses of the commissioners has ever been assessed upon or 
collected of the individual owners of private freight railroad 
tracks, and under the existing statutes I do not think they can 
be ; and the case appears to be the same as to these bills 
incurred under the act of 1888. 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Secretary. 

1893 
September 6. 



Caucuses. 

Caucuses for the nomination of town officers and delegates to conventions — 

how called. 

I reply as below to your inquiries under date of August 29 
as to the holding of caucuses : — 

First. — In any town in which ballots for town officers are 
provided at the expense of the town, under St. 1898, c. 417, 
§ 293, a caucus for the nomination of any town officers who are 
required to be elected by ballot must be called and held under the 
provisions of §§ 71-74 ; but a caucus for the nomination of any 
officer not required to be elected by ballot njeed not be so called 
and held. In any town in which ballots for town officers are not 
provided at the expense of the town, as above, a caucus for the 
nomination of any town officer need not be so called and held. 

Second. — A caucus for nominating delegates to a convention 
cannot be called and held otherwise than under and according 
to the provisions of §§ 71-74. The prohibition at the end of 
§ 71 appears to be general, and to apply to the selection of all 
deleo-ates to all conventions. 



To the Gas and 
Electric Light 
Commissioners. 

189.3 
September 6. 



Obstruction of Streets, — Electric "Wires, — Surveyors of 
Highways, — Attorney-General. 

It was not the intention of the Legislature that the Attorney-General should 
go into court against the unauthorized erection of electric lighting wires 
in violation of St. 1887, c. 382, § 3, as amended by St. 1892, c. 274, under 
any and all circumstances, in any part of the Commonwealth, but that, as 
a rule, he should act in such cases only under circumstances involving a 
substantial violation of the public right and interest which the local 
authorities are unable or unwilling to prevent. 

So far as I can judge from the statement of facts accompany- 
ing your report of a violation, by Alonzo W. Perry of Boston, 
of St. 1887, c. 382, § 3, as amended by St. 1892, c. 274, the 
case is such as to come within the intimation given you in my 
communication of June 16, 1893,* that as a rule the Attorney- 
General ought not to be required to go into court solely or 
principally for the prevention of business competition ; and it 
may also be a case in which it is within the power of the local 

* See p. 84, ante. 



A. E. PILLSBURY, ATT0RNEY-GENP:RAL. 89 

authorities to control the matter and prevent the violation of 
law, if any. If the wires constitute an obstruction of the public 
streets, they are within the reach of the surveyors of highways. 
Under these circumstances it does not appear to me at present 
that I am called upon to interfere. I do not think the Legis- 
lature ever intended the Attorney-General to go into court 
against the unauthorized erection of any and every electric 
lighting wire, under any and all circumstances, in any part of 
the Commonwealth ; and it appears to me that he should, as a 
rule, act in such cases only under circumstances involving a 
substantial violation of the public right and interest, which the 
local authorities are unable or unwilling to prevent. 

I know no reason why the Legislature should not give a 
remedy directly to any person or corporation aggrieved in such 
a case as this appears to be. This would be much more con- 
venient to the parties, who need not and ought not to be com- 
pelled to rely upon the intervention of the Attorney-General. 
If a change in or addition to the existing law is necessary for 
this purpose, as it may be, I have little doubt that the Legislat- 
ure will make it, if attention is called to the subject. 

If the case in hand is one in which your Board may lawfully 
proceed under St. 1885, c. 314, § 13, and if you desire so to do, 
you will of course be furnished with the necessary legal assistance 
from this office. Whether you may so proceed is not entirely 
clear, but from St. 1885, c. 314, and St. 1887, c. 382, taken to- 
gether, there is at least an implication that the Board may proceed 
under § 13 of the former act to enforce § 3 of the latter. 



Gas and Electric Light Commissioners, — Jurisdiction. 

St. 1885, c. 314, §§ 10 and 16, do not confer upon the Board of Gas and 
Electric Light Commissioners the authority to adjudicate upon the ques- 
tions presented by the appeals of the Boston Gas Light Company from 
the granting of permits to the Brookline Gas Light Company by the 
superintendent of streets of Boston. 

I reply as below to your inquiry of August 3, whether St. To the Gas and 

^ -^ "^ 1 J fe ' Electric Light 

1885, c. 314, §§10 and 16, apply to the appeals of the Boston commissioners. 
Gas Light Company and others from the granting of permits to September 7. 



90 OPINIONS OF THE ATTORNEY-GENERAL. 

the Brookline Gas Light Company by the superintendent of 
streets of Boston, so as to confer upon your Board authority to 
adjudicate upon the questions presented by the appeals. My 
reply has been delayed in order to give parties in interest an 
opportunity to be heard. 

The only right of appeal to your Board conferred by § § 10 
and 16 is from the decision of the mayor and aldermen of a 
city, or selectmen of a town, after a public hearing before 
them. There has been in this case no action of the mayor 
and aldermen of Boston, and the action appealed from is 
that of the superintendent of streets. If the powers of the 
mayor and aldermen in such cases have been transferred by the 
charter of Boston to the superintendent of streets, as has been 
claimed, it may be that his action will support an appeal. But 
this is, in my opinion, doubtful, and it is clear that, taking the 
statute as it reads, there has been no such action as to form the 
foundation of an appeal. 

But apart from this, it appears to me upon the facts stated 
that the Brookline company must be considered as existing in 
active operation in the city of Boston, in the sense of the 
statute, at the time of its application for and the granting of 
the permits appealed from. If this view is correct it disposes 
of the question, as the requirement of a public hearing with the 
right of appeal does not apply to such a company. 

I am of opinion, therefore, that these sections of the statute 
do not confer upon your Board the authority to adjudicate upon 
the questions presented by these appeals. 



Board of Agriculture, — Agricultural Society, — Representa- 
tion, — Bounty. 

The right of an agricultural society to representation in the Board of Agri- 
culture in any year depends on its title to receive a bounty that year. 

A society's title to l)ounty and to representation is to be determined by its 
returns between January 10 and the first Wednesday of February each 
year. 

A society is not entitled to a bounty in any year unless it has awarded and 
paid premiums to the same amount during the preceding year. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 91 

The application of a bounty to the general encouragement or improvement of 
agriculture or manufactures does not by itself entitle a society to a bounty 
or to representation in the Board. 

The requirement of $1,000 invested capital in order be be entitled to a bounty 
applies to all societies and means an actually existing invested capital. 

The title of a society to representation in the Board accrues year by year, and 
the membership of a representative of a society terminates when his 
society ceases to be entitled to representation, though within three years 
from the time when he took his seat, subject to reinstatement when the 
society again acquires the right to representation. 

I have to reply as below to your request for my opinion uiion To the 

., . .,. ,. i.i/» Governor. 

the questions raised in relation to the rights of representation 1393 
of certain agricultural societies in the Board of Agriculture. ^ ''^°^^'" ^' 
The statutes bearing upon the subject are more or less compli- 
cated and confused, and are difficult of construction, but upon 
careful consideration I am satisfied that the conclusions stated 
below embody the only practicable and intelligible construction 
which can be put upon them. I will state the matter somewhat 
more fully than might otherwise be necessary, in order, if 
possible, that the whole case may he fully understood, with a 
view to any changes in the law which may l)e thought necessary 
or desirable. I do not understand that Pub. Sts., c. 114, § 11, 
is material in the case of either of the societies now in question, 
and I have dealt with the matter only in view of such provisions 
as seem to be applicable to them upon the statement of facts 
presented by you, which of course I assume to be correct and 
sufficiently full for the purpose. 

By Pub. Sts., c. 114, §§1 and 6, the right of any society 
to receive any bounty in a particular year depends upon its 
having awarded and paid the same amount in premiums, and 
complied with all the requirements of law and the regulations 
of the Board during the preceding year. The right of any 
society to rei)resentation in the Board in a particular year 
depends upon its title to receive bounty in that year. Section 
2, as now amended, and § 5 require each society to make the 
proper return on or before the 10th of January in each year, 
of the facts which show whether it is or is not entitled to a 
payment of bounty in the following October ; and the theory 
of the law undoubtedly is that between the 10th of January, 



92 OPINIONS OF THE ATTORNEY-GENERAL. 

when these returns are supposed to be in, and the first 
Wednesday of February, when new members take their seats 
in the Board, the title to representation in the Board shall be 
determined by and upon the returns. 

It thus appears that the right of each society to representa- 
tion in the Board must be determined at the time when the 
new meml)ers take their seats, on the first Wednesday of 
February, according to what the society has done or omitted 
to do during the preceding year, as shown by its returns. 
And as the provision of § 1, that no society shall receive any 
larger bounty in any year than it has awarded and paid in 
premiums during the preceding year, and of § 6, that a society 
which neglects in any year to comply with the requirements 
of law or regulations of the Board shall not 1)e entitled to 
bounty, are expressed in prohibitory language, I think they 
must be construed as peremptory conditions of representation 
in the Board, failure to comply with any of which forfeits the 
right of representation. 

The question has been raised whether the application of the 
bounty or its equivalent for the general purpose of the encour- 
agement or improvement of agriculture or manufactures, under 
the permission of § 7, is not an equivalent for the earning of 
bounty, so as by itself to entitle a society to representation. 
I do not think the statute can be so construed. The provision 
that no society shall receive a larger ])ounty than it has awarded 
and paid in premiums during the preceding year was a special 
enactment, by St. 1870, c. 258, passed w^hile substantially all 
the other provisions of the law were and had been in force at 
least for some years ; and this clearly indicates the purpose of 
the Legislature that the right to bounty shall depend absolutely 
upon the award and payment of premiums during the preced- 
ing year, and, as has already appeared, the right of represen- 
tation in the Board depends upon the right to bounty. The 
requirement of § 7, to apply the bounty to the general encour- 
agement or improvement of agriculture or manufactures if it 
is not ofiered in premiums, is undoubtedly binding upon every 
society ; l)ut while compliance with it fulfils the obligation of 
that section, it does not necessarily entitle a society to repre- 



A. E. PILLSBURY, ATTORNEY-GENERAL. 93 

sentation in the Board, as the bounty is not received and there- 
fore cannot be expended until October, wliile the right of the 
society to representation in that year depends upon its having 
oflered and paid in premiums during the preceding year an 
amount equivalent to the bounty. In other words, under § 7 
a society may apply a bounty either in premiums or to the 
general encouragement or improvement of agriculture or manu- 
factures ; but the latter application of it would not entitle the 
society to representation in the Board during the succeeding 
year, while the former application of it would, if the other re- 
quirements were fulfilled. 

The question is raised also whether the requirement of Pub. 
Sts., c. 114, § 1, of an invested capital of one thousand dollars, 
is satisfied if a society has ever had and invested a capital 
equivalent to that amount. Section 1 provides that two classes 
of societies shall be entitled to bounty upon compl^dng with 
the other requirements, namely, societies which were entitled 
to bounty before May, 18G6, of which one thousand dollars 
capital w^as then as now a condition, and other societies whose 
grounds are not within twelve miles of any others, which have 
raised and invested the same capital. As by § 1 the bounty 
is to a certain extent measured by the capital, and as the 
reasons for requiring a capital seem to apply alike to all socie- 
ties, it appears to me that this requirement applies to all. I 
think the reason of this provision, if not the language, can be 
satisfied only by an actually existing investment of capital of 
that amount at the time when the question of the right of the 
society to representation arises ; and that a previous investment 
of such capita], which has been expended or lost, does not 
fulfil this requirement ; the purpose of which seems clearly , 

to be to require an existing and invested capital of at least one 
thousand dollars as a sort of guaranty that the society is doing 
or is prepared to do some actual work in the cause of agri- 
culture. 

I understand also that the question is raised whether a mem- 
ber taking his seat in the Board on the first Wednesday of 
February, by virtue of what his society has done and returned 
during the preceding year, is entitled to serve during the full 



94 OPINIONS OF THE ATTORNEY-GENERAL. 

term of three years, or whether his membership may be ter- 
minated during that time by the failure of his society to con- 
tinue entitled to bounty ; and that I am desired to express an 
opinion upon this question. Pub. Sts., c. 20, § 2, provides 
that persons appointed shall hold their offices for three years, 
and provides for the filling of vacancies " in the same manner," 
namely, by the governor and council, or by the societies. As 
the right to bounty in any year depends on what the society 
has done during the preceding year, and as the right to mem- 
bership in any year depends upon the title of the society to 
bounty in that year, and as the title both to l)ounty and to 
membership accrues year by year if it accrues at all, and has to 
be shown l)y the returns of the society on or l^efore the 10th of 
January in each year, I am of the opinion that a society which 
does not show by its returns on or before January 10 that it is 
entitled to a payment of bounty in the following October, is 
not entitled to representation in the Board on or after the first 
Wednesday of February following ; and therefore that the 
membership of a representative of a society which does not 
show by its returns on or before the 10th of January that it is 
entitled to a pajonent of bounty in the following October 
ceases on the first Wednesday of February following the mak- 
ing of or the admission to make the return ; subject, however, 
to be reinstated within the period of three years if the society 
within that time acquires the right to bounty in accordance with 
the requirements of the law as here stated. 

Applying these conclusions to the particular cases now in 
question, as they appear by the statement of facts furnished me, 
I am of opinion that the Massachusetts Society for Promoting 
. Agriculture is not at present entitled to representation in the 

Board, as it did not ofler or pay any premiums last year, nor 
make any returns as required by law ; that the Bay State Agri- 
cultural Society and the Middlesex Agricultural Societj^are not 
at present entitled to representation, as they awarded and paid 
no premiums last year, and therefore did not become entitled 
to receive any bounty this year, and as their returns do not 
show the re(iuisitc capital. As to the Hampden Society, its 
return fails to show the requisite capital. The returns of the 



A. E. PILLSBURY, ATTORNEY-GENERAL. 95 

Hampshire, the Hampshire Franklin and Hampden and the 
Highkmd societies show the necessary capital. 

This disposes of all the questions raised in any case on the 
statement of facts before me. 



Pauper Returns, — Cities and Towns, — Penalties, — Board of 
Lunacy and Charity. 

Where cities and towns have incurred penalties for failure to make pauper 
returns under Pub. Sts., c. 84, it seems to be the better practice for the 
Board of Lunacy and Charity to certify to the Treasurer the amount 
of the reimbursement, if any, due for relief from the Commonwealth to 
the cities or towns, and the penalty in each case, leaving the adjustment 
to be made by the Treasurer, by whom the settlement must eventually be 
made. 

I acknowledge the receipt of your inquiry, whether it is the To the 
duty of your department to enforce penalties imposed on cities 1893 
and tow^ns for failure to make pauper returns under Pub. Sts., October 4. 
c. 84, by making them part of the account in the regular 
settlements with the Commonwealth, or whether the officers 
charged with the making up of the accounts against cities and 
towns for the support of paupers should include the penalties 
therein. 

The statute does not seem to determine the matter either 
way, and it must therefore be determined on such general 
considerations of convenience and expediency as apply to it. 
There seem to be two classes of these cases : First, cases in 
which reimbursement for relief is due from the Commonwealth 
to the city or town, against which the penalty may be set off; 
and second, cases in which the city or town has incurred the 
penalty and notliing is due it for reimbursement, or, if any- 
thhig, a less sum than the amount of the penalty. In the latter 
case the Board of Lunacy and Charity cannot work out the 
proper result in their accounts, but must report the penalty to 
you for collection ; and in the former case, while the Board 
may set off the penalty and deduct it from the amount due for 
reimbursement, reporting only the latter to you, I am given to 



96 OPINIONS OF THE ATTORNEY-GENERAL. 

understand that this practice would dciorive the Auditor's office 
of the detailed information as to the whole amount of the 
receipts and disl)ursements of the Commonwealth on the pauper 
account, which it is necessary for the Auditor to have in order 
to the proper discharge of his duty. As all collections and 
disbursements in both classes must be made by your depart- 
ment, this seems to be an additional reason for ascertaining the 
balance therein in all cases, and for dealing with all cases by 
one uniform rule. I assume of course that you are always 
properly informed by the Board as to the exact amount due 
the city or town for reimbursement, as well as the amount of the 
penalty, so that you can first set off the penalty against the 
amounts due for reimbursement, if any, and if nothing is due 
for reimbursement, against any other moneys due the city or 
town, as required ])y Pub. Sts., c. 84, § 37. 

Upon such information as I have, it seems to me for these 
reasons the better practice for the Board of Lunacy and 
Charity to certify to your department the amount of the reim- 
bursement and penalty in each case, leaving the adjustment to 
be made in your department, where the settlement must 
eventually be made. 



Trustees of State Primary and Reform Schools, — Lyman 
School for Boys, — State Industrial School for Girls, — 
Supervision of Children. 

It is the duty of the trustees of the State Primary and Reform Schools to 
exercise a general oversight and supervision of all children committed to 
the Lyman School for Boys and the State Industrial School for Girls 
during their minority, or until their discharge in some manner provided 
by law. 

To the I have your request for my opinion upon the question sub- 

1893 mitted by the trustees of the State Primary and Reform 

O ctober 26. gehools, whetlicr it is their duty to supervise during minority 

children committed to the Lyman School for Boys and the 

State Industrial School for Girls. 

I am not sure that I understand precisely what the trustees 



A. E. PILLSBURY, ATTORNEY-GENERAL. 97 

desire to learn, nor what their idea is of the meaning of the 
word " supervise," as used in the statute. It is without doubt 
their duty to exercise such supervision as the statute prescribes 
over the inmates of these schools while they remain inmates 
thereof. And I incline to the opinion that while the system 
of apprenticeship established by Pub. Sts., c. 89, §§ 38-44, 
was in use, it was their duty to exercise such supervision over 
boys or girls so apprenticed or bound out as to keep themselves 
reasonably informed of the condition of the child, with a view 
to continuing or terminating the apprenticeship as the interest 
of the child might require. This is clear as to girls from § 46, 
and is at least implied as to both sexes by § 40. I understand, 
however, that this system has gone entirely out of use, and 
that the inmates of these schools are now placed on probation 
with families as opportunity offers, without formal indentures. ' 
There seems to be no express authority for this practice in the 
statute, but perhaps sufficient authority is implied by the 
apparent recognition in §§ 53-56 that inmates of such institu- 
tions may be placed "in charge of" a person, as distinguished 
from the formal binding out by indenture as an apprentice or 
servant. The provisions of §§ 53 and 54, requiring the State 
Board to look after children in this situation, do not necessarily 
conflict with the duty of the trustees to do the same, nor 
necessarily relieve them from that duty. There is also in § 47 
a provision for the transfer of girls to the Reformatory Prison 
for Women, but it is also provided that upon application of the 
trustees of the school a girl so transferred may be returned to 
the school ; which seems to imply that it is the duty of the 
trustees to keep themselves informed of her condition and prog- 
ress even while in the Reformatory. 

On the whole, I am of opinion that it is the duty of the 
trustees of the State Primary and Reform Schools to exercise a 
general oversight and supervision of all children committed to 
these schools during their minority or until their discharge in 
some manner provided by law. 



98 



OPINIONS OF THE ATT0RNEY-GP:NERAL. 



Bay State Gas Company, — Cancellation of Note. 



To the Com. 
missioner of 
Corporations. 

1893 
November 27. 



Under St. 1893, c. 474, it does not appear to be necessary or material for the 
Commissioner of Corporations, or for the Attorney-General to determine 
the regularity or validity of the proceedings of the Bay State Gas Com- 
pany in effecting or attempting to effect the cancellation or surrender of 
the note given by it for $4,500,000. The Commissioner of Corporations 
under the statute appears to have no power or duty but to take what the 
company offers without admission or acknowledgment of anything. 

In compliance with your request I have examined the papers 
presented to me by Mr. Chandler in behalf of the Bay State 
Gas Company, relating to the cancellation and surrender of the 
$4,500,000 note under St. 1893, c. 474. 

I observe in them several things which mio:ht affect the 
validity of the proceedings as a sufficient compliance with the 
statute, namely, the meeting of the Bay State Gas Company of 
Delaware at which the surrender was voted appears by the 
copy of the record to "have been held November 21, 1893, 
while the assignment executed in pursuance of that vote refers 
to it as a meeting held November 18, 1893 ; the vote authorizes 
the president of the Delaware company to assign and deliver 
the note to the Mercantile Trust Company for cancellation and 
surrender, while the assignment produced is in form the act 
of the company and not of the president ; and it does not 
clearly appear whether Mr. Dening, the secretary of the Mer- 
cantile Trust Company, has sufficient authority to execute the 
power to cancel and surrender the note, which was voted hj 
the gas company to the trust company and not to its secretary 
or other officer. There may be other like irregularities, or 
seeming irregularities, though I at present notice no others ; 
and I express no opinion as to the eflect of these. It does not 
appear to me to be necessary or material for you, nor therefore 
for me, to determine the effect of these omissions or the regu- 
larity or validity of the proceedings of the gas company in 
effecting or attempting to effect the cancellation and surrender 
of the note. Under the statute you appear to have no power 
and no duty in the premises but to take what the company 
offers, without admission or acknowledgment of anything. 



A. E. PILLSBURY, ATTORNEY-GENERAL. 99 

which I think you are not required to make and which probably 
would not l)ind the Commonwealth if made. The company, 
under the statute, must see to it that a legal and etFectual can- 
cellation and surrender of the note is made before December 1, 
1893, — failing which, its charter stands repealed. It appears 
to me, therefore, that all questions of the regularity and suffi- 
ciency of the proceedings to effect the cancellation and surrender 
in accordance with the statute are their questions and not 
yours. 

I have called Mr. Chandler's attention to the points above 
noted, and understand from him that steps will be taken to 
properly cover them and any others which may be discovered, 
if any, before filing the papers. But in my opinion your posi- 
tion and duty in the case, now and hereafter, are only as I have 
above stated. 



Histories, — Purchase by Commonwealth. 

St. 1893, c. 413, applies to new editions of histories originally published before 
the passage of the act, if such new edition contains a substantial amount 
of new and valuable matter, and if it also fulfils the other requirements 
of the act. 

In compliance with the request of the Executive Council to Tothe 
be advised upon the question whether St. 1893, c. 413, entitled ''*^°'i893^' 
' ' An Act to authorize the purchase of historical works relative December 6. 
to the services of Massachusetts volunteers during the late civil 
war," applies to new editions of histories originally published 
before the passage of the act, I have to say that, in my opinion, 
the act may be construed to include a new edition of a previously 
published history, if such new edition contains a substantial 
account of new and valuable matter, and if it also fulfils the 
other requirements of the act. The purchase of copies l^y the 
Commonwealth is in every case within the control of the 
Governor and Council and the Secretary, who are to determine 
whether the history in question fulfils all the requirements of 
the act, without which the purchase is not to l)e made. 



100 OPINIONS OF THE ATTORNEY-GENERAL. 



Trade-mark, — Label, — Filing and Recording. 

A label or trade-mark may be filed and recorded under St. 1893, c. 443, not- 
withstanding it consists of several words or devises on separate pieces of 
paper, or is described as a " label and trade-marli." The rules, regulations 
and forms prescribed by the Secretary under § 6 relate only to the filing, 
and not to tlie form of the label, etc. It is the duty of the Secretary to 
see that the label, etc , as presented is not in such form as to be mistaken 
for one previously recorded. The rights of parties as to the form of 
labels, etc., are to be determined by the courts. 

To the J have your request to be advised upon an application for 

1893 filing certain labels or trade-marks, under St. 1893, c. 443, 

ecem^r . -y^lietlier, in the case of a label or trade-mark consisting of two 
or more distinct parts, on separate pieces of paper, each part 
must be treated as a separate label or trade-mark, and whether 
a paper descril^ed by the applicant as a " label and trade-mark " 
should under the law be described either as a label or as a 
trade-mark and not as both. 

1. In my opinion the Secretary of the Commonwealth has 
neither the duty nor the power to prescribe, nor, with a single 
exception mentioned below, to interfere with the form of the 
label or trade-mark itself. He is to take it as presented by 
the applicant, who must take the risk of filing the labels, etc., 
in such form as may be proper and sufficient in the judgment 
of the courts, which nmst eventually determine the matter if 
any question is raised, to secure the protection of the law. 
The applicant may have a right to treat a combination of several 
words or devises on separate pieces of paper, to be affixed 
to one bottle, box or package, as one label or trade-mark, 
althouo-h the word or device on either piece of paper by itself 
mio-ht be incapable of forming a valid label or trade-mark under 
the law. It must ]3e left to the courts to determine such rights. 
The Secretary can neither enlarge nor abridge them by any rule 
or reo-ulation of his office. The rules, regulations and forms 
which the Secretary is authorized by § G to prescribe are only 
"for the filing" of the labels, trade-marks, etc., and cannot 
extend so far as to interfere with or control the form of the 
labels, etc., themselves as the parties choose to present them. 
The duty of the Secretary appears to be only to see that such 



A. E. PILLSBURY, ATTORNEY-GENERAL. 101 

rules, regulations and forms as he may prescribe "for the 
filing" are complied with, and that the label, trade-mark or 
advertisement ofiered for filing conforms to all the require- 
ments of § 4. 

The exception above referred to is this : By the last clause 
of § 4 it is clearly the duty of the Secretary to pass upon the 
question whether the label, trade-mark or advertisment offered 
for record might reasonably be mistaken for one previously 
recorded. This question he must determine in the first instance, 
leaving the applicant, if aggrieved by his decision, to such 
remedy as the courts may aflbrd. 

The statute appears to be similar in some respects to the 
patent laws of the United States, under which an applicant files 
such description, specifications, etc., as he chooses, and the 
courts eventually determine, as they must here, whether and 
how far he has secured the protection of the law. 

2. As to the second question, in my opinion the Secretary 
cannot assume that the same paper may not properly be de- 
scribed as both a label and trade-mark, nor require it to be 
described either as the one or the other, if the applicant chooses 
to describe it as both, as he may have a right to do under 
the law. 



Metropolitan Park Commission, — Expenses. 

The expenses of the Metropolitan Park Commission, specified in St. 1893, 
c. 407, §§ 1, 2, may be appropriated under that act, and are to be charged 
upon the fund of #1,000,000 thereby provided. 

In reply to your request for my opinion whether an appro- To the 
priation is authorized by St. 1893, c. 407 for the salaries, ofiice i893 
expenses and travelling expenses of the MetropoHtan Park December 21. 
Commission for the ensuing year, estimated at $10,000, and 
if so, whether it is to be paid from the loan of $1,000,000 
authorized by that act, or from other funds in the treasury, I 
have to say that if the estimate includes only such expenses as 
are expressly allowed by §§ 1 and 2, it is authorized by the 
act, and is to be charged upon the fund of $1,000,000 thereby 
provided. It is, of course, within the power of the Legislat- 



102 OPINIONS OF thp: ATTORNFA'-GENERAL. 

ure to make a special appropriation for the purpose, l)ut the 
fund of $1,000,000 is expressly provided "to meet the ex- 
penses incurred under the provisions of this act," of which the 
expenses of the commission are a part ; and other provisions 
of the act have some tendency to indicate the intention of the 
Legislature that they should be charged upon this fund. A 
like provision in other recent legislation of similar character 
has received the same construction. The fact that these ex- 
penses were met by special appropriation last year has, under 
the circumstances, no tendency to indicate a purpose of the 
Legislature that they are not to l)e charged upon the general 
fund. The special appropriation of last year covered all pur- 
poses for which money was required under the act, and was 
undoubtedly made only for the reason that the general fund 
had not then become available. 



Civil Service Act, — Rules, — Piece Work, — Employment. 

Under the civil service act rules may be made to include persons doing 
ordinary clerical work by the piece or quantity. The present rules may 
be construed to include such a case if there is an attempt to evade the 
law. 

To the I have vour request for my opinion whether a clerk in the 

Civil Service "^ ^ /. i i • 

comraif.sioner8. ^.vatcr iucomc department of Boston, whose duty is to make out 
December 22. uud mail biUs for water rates for a compensation of one cent 
each, agreed on with the head of the department, by which he 
earns about three dollars per day, is within the classified ser- 
vice, or whether the agreement for his services and the manner 
of compensation take the case out of the civil service act 
(St. 1884, c. 320) and the rules. 

As to your suggestion of the claim that ' ' the personal service 
rendered by the clerk under an agreement to pay by the piece 
is not an employment within the meaning of the civil service 
act and rules, but a contract engagement outside of the rules," 
I do not thiidv such a distinction between an "employment" 
and a ' ' contract engagement " can be maintained, at least in 
the present case. I have already said or intimated to the com- 



A. E. PILLSBURY, ATTORNEY-GENERAL. 103 

missioners that in my opinion a case which the law intends to 
include is not to be taken out of it, nor taken from the class in 
which it belongs and put into another, merely by the form 
under which the person may be selected or engaged for the 
service, especially if such form is adopted for the purpose of 
evading the law.* The position of this clerk is a position of 
employment, in the sense of the statute, and the precise form 
of the contract of employment is immaterial. The case turns 
on the question whether a person working by the piece, whose 
compensation depends on the amount of work done, as dis- 
tinguished from one who receives a fixed salary or compensation 
measured by time, is within the operation of the system. 

I see no reason to doubt that the statute is broad enough to 
cover such cases, or that under it the rules may be extended, 
with the exceptions expressed in § 15, to all positions required 
to be filled by appointment, and all positions of employment, 
for labor or other service. The express exception of certain 
cases indicates the purpose of the Legislature to include all 
which are not so excepted. 

But the statute also provides that the rules may be made 
from time to time, and may be given a general or limited appli- 
cation ; and the question here is whether the present rules 
extend far enough to include this case ; and this depends on the 
question whether the clerk is included within the description 
of Schedule A, class 1 or class 2, as a " person whose annual 
compensation is at a rate less than $800 " or "a person whose 
annual compensation is at the rate of $800 and over." 

This description might be construed to include a person 
regularly working by the piece, at least if his annual compen- 
sation could be so nearly determined l^eforehand as to make it 
certain whether he belongs in class 1 or class 2 ; and in a case 
of palpable evasion or attempt to evade the rules, perhaps it 
ought to be so construed. But I am informed that the rules 
have not heretofore been generally understood as extending to 
persons working by the piece or quantity ; and as it is within 
the power of the commissioners to so extend them, if necessary 
or expedient, by an amendment, making it clear not only that 

* See page 72, ante. 



104 



OPINIONS OF THE ATTORNEY-GENERAL. 



such cases are included but so defininsr them that there will be 
no difficulty in applying the rules to any particular case and 
no room for evasion, I think it is better to bring them within 
the system in this way if at all, rather than by a construction 
of the present rules which might be regarded as doubtful. 

I conclude, therefore, that unless the commissioners are 
satisfied that the form of employment in this case is in fact an 
attempt to evade the law, it should not be treated as within the 
present rules. 



Insurance, — Massachusetts Standard Policy. 



To the 

Insurance 

Commissioner. 

1S93 
December 23. 



It is lawful to modify tlie Massacliusetts Standard Policy by the addition, in 
the manner prescribed in the seventh excepting clause of St. 1887, c. 214, 
§ 60 of provisions differing from the standard form ; but a policy so 
modified ceases to be and is not to be called the Massachusetts Standard 
Policy. 

Mr. Atkinson's inquiry whether it is permissible to modify 
the Massachusetts Standard fire insurance policy l:»y the addi- 
tion of a sio-ned slip insuring aijainst fire occasioned bv riot or 
civil commotion, upon which you request my opinion, appears 
to be substantially covered by the opinion which I gave you 
under date of December 18, 1891 ; * and much that was there 
said need not be repeated, 
• It is clear that under the seventh excepting clause of St. 
1887, c. 214, § 60, additions to or modifications of the Stan- 
dard Policy may be made by a signed slip or rider or other- 
wise, as therein prescribed ; and I see no reason to doubt that 
this permits the addition of a provision insuring against fire 
originating in riot or civil commotion. The obvious and only 
purpose of this clause is to authorize the insertion in fire poli- 
cies of provisions more or less inconsistent with those of the 
standard form. But the policy so modified ceases to be the 
Massachusetts Standard Policy, and is not to be so designated. 

The purpose and efi'ect of the legislation concerning the 
Standard Policy, as now embodied in § 60, is to establish a 
standard form as therein set out, to be known as the Massa- 



* See page 34, ante. 



A, E. PILLSBURY, ATTORNEY -GENERAL. 105 

chusetts Standard Policy, which shall contain nothing more 
nor less than the statutory form includes, except as permitted 
by the first five excepting clauses of that section. The addi- 
tion of anything permitted by these five clauses still leaves it 
the Massachusetts Standard Policy, and by the express pro- 
vision of the sixth clause it may be so called. The seventh 
excepting clause is designed to permit such other modifications 
of the standard form as may be permissible on general princi- 
ples pf law ; but the modifications must be made in the manner 
therein prescribed, and a policy so modified is not and is not 
to be described as the Massachusetts Standard Policy. 



Corporation, — Acceptance of Statute. 

The provision of a statute, passed March 26, 1891, that it shall take effect 
April 14, 1891, if accepted by the corporation, is an implied limitation of 
the time for acceptance, and an acceptance voted by the corporation 
October U, 1892, is ineffectual. 

I have your request to be advised whether St. 1891, c. 118, Tothe 

•^ i ^ ' ' Secretary. 

approved March 26, 1891, amending the charter of the Worces- 1894 
ter Natural History Society, took efi'ect upon its acceptance ^^!^^ 
by the sdciety, at a meeting held October 14, 1892, and has 
become a law by virtue of such acceptance ; § 3 of the act pro- 
viding that ' ' this act shall take efi'ect on the fourteenth day of 
April in the year 1891, provided that a majority of the members 
of said association present and voting thereon at a meeting duly 
called for the purpose shall vote to accept its provisions." As 
the question may be of importance to the society I sent them 
notice of your request, to which they have made no response. 
The question is whether this section raises an implied limita- 
tion of the time within which the act could be eff*ectually 
accepted and take efiect. In view of the familiar rule that a 
statutory grant is to be construed strictly as against the grantee, 
and of the doubts and diflSculties which might arise if, under 
such a provision, it should be considered that the act could be 
accepted at any time after its passage, at the convenience of the 
corporation, I think it must be held that § 3 had the effect to 



106 OPINIONS OF THE ATTORNEY-GENERAL. 

limit the time within which the act could be accepted to April 
14, 1891; and that the acceptance voted by the corporation 
October 14, 1892, was ineffectual, and therefore that the act 
has never taken effect and is not in force as a law. 

The form of this provision is ol)jectionable, as opening the 
way to uncertainty which can easily be avoided by prescrib- 
ing definitely in the statute the time within which it shall be 
accepted, if at all, which is usually done in recent legislation 
of this character. It ought not to be left in doul)t for a long 
period whether an act of the Legislature has taken effect as a 
law. St. 1883, c. 100, is intended to prevent this result, and 
it indicates the policy of the Legislature to prevent it ; and I 
think it tends to confirm my conclusion in the present case. 



OPINIONS 

OF 

HOSEA M. KNOWLTON, ATTOENEY-GENERAL. 



Medfield Insane Asylum, — Building Committee, — Plans, — 
Alteration, — Contract. 

The building committee of the trustees of the Medfield Insane Asylum may at 
its discretion alter the construction of the buildings, provided that no 
substantial departure is made from the plans furnished by the commis- 
sioners appointed under St. 1890, c. 445. It may use any money available 
that is not needed for contracts already made ; and the method of expendi- 
ture is a question for its judgment. It cannot avoid contracts for 
materials made by the previous building committee. 

I have considered the matters contained in the letter of the Tothe 
building committee of the trustees of the Medfield Insane Council. 
Asylum to the Governor, dated January 17, 1894. Deeming January si. 
the statements contained in the letter to be insufficient to enal)le 
me to answer the questions satisfactorily, I have conferred 
personally with the committee, and have examined its contracts 
and plans so far as was necessary to understand the questions 
submitted. 

By St. 1890, c. 445, it was provided that commissioners 
should be appointed to obtain a tract of land for an asylum, 
and to procure plans, specifications and estimates for the erec- 
tion of buildings thereon ; and the act further provided that 
"the cost of said land, buildings and all the appurtenances 
thereto shall not exceed the sum of $500 per inmate." I am 
informed that under this act commissioners were appointed ' 
who purchased the tract of land in Medfield upon which the 
buildings are now being erected, and who caused to be pre- 
pared certain plans and specifications therefor. 

The act authorizing the construction of the asylum is St. 
1892, c. 425. By the provisions of this chapter the building 

107 



108 OPINIONS OF THE ATTORNEY-GENERAL. 

committee ' ' shall have the entire charge of tlie construction of 
said hospital huildings." It further provides, in § 2, among 
other things, that the building committee " shall cause to be 
erected . . . suitable buildings for an asylum for the chronic 
insane . . . substantially in accordance with the plans, specifi- 
cations and estimates submitted by the commissioners appointed 
under "the act alwve referred to. "Said building committee 
of the trustees shall have power to make all contracts and to 
employ all agents necessary for carrying into effect the pro- 
visions of this act." The only limitations upon its authority, 
in addition to the requirement above quoted, that it is to follow 
the commissioners' plans "substantially," are a proviso that 
' ' all contracts for the erection of buildings and the completion 
thereof and the equipment of the same . . . shall be approved 
l)y the Governor and Council ; " and a further proviso that ' ' the 
aggregate expenses and liabilities incurred by virtue thereof 
shall not exceed the sum of $500,000, exclusive of the compen- 
sation provided for the building committee." 

The act appropriates a sum not exceeding $500,000, for the 
expenses incurred by the building committee in the erection of 
the hospital, with a proviso that the appropriation shall be 
divided so that no more than $150,000 shall be appropriated 
during the year 1892, $200,000 during the year 1893, and 
$100,000 during the year 189-4. By St. 1893, c. 395, the 
committee is authorized to expend for the purposes of said act 
(St. 1892, c. 425), and under the conditions prescribed by said 
act, the further sum of $200,000, provided that no portion 
of this sum shall be "expended" during the years 1893 and 
1894. 

In view of the provisions above quoted, which include all 
those relating to the authority of the committee, and the limita- 
tions imposed upon it as to the construction of the buildings and 
the expenditure of the appropriation, it is plain that it has full 
authority to make any changes in the construction of the l>uild- 
ings from time to time which in its judgment will be for the 
interests of the Commonwealth and the safety and convenience 
of the patients for whom the institution is erected ; provided 
such changes are not substantially a departure from the plans 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 109 

and specifications furnished by the commissioners appointed 
under St. 1890, c. 445 ; and provided, further, that it does not 
incur contracts which call for the expenditure of more money 
than has been appropriated by the various acts authorizing the 
construction of the asylum. 

But the building committee informs me that the plans and 
specifications prepared by the commissioners were quite gen- 
eral in their nature, and did not purport to furnish sufficient 
details for the work. The committee further informs me that 
the "radical changes in the construction," which it states in 
its letter of inquiry to the Governor and Council as desirable 
to be made, are not changes from the plans and specifications 
furnished by the commissioners, for the reason that the matters 
as to which it desires to make changes are not detailed at all 
in those plans, but are changes from the specifications in the 
existing contracts. That being so, it follows that the commit- 
tee has the right to make the changes it desires, and to con- 
tract therefor, or cause modifications, for that purpose, to be 
made in existing contracts, with the approval of the Governor 
and Council, provided it does not contract in excess of its ap- 
propriation. 

Replying to the second and third inquiries of the committee, 
I have to say that there is no specified designation of the pur- 
pose for which any of the money appropriated is to be ex- 
pended, but only provisions as to when it shall be expended. 
The committee, therefore, has power to use any money avail- 
able that is not needed in payment for contracts already made. 
There is nothing in the law which prevents it from making 
changes that it deems essential, even though such changes will 
make it probable that the six buildings not yet contracted for 
cannot be erected for the balance of the whole appropriation 
not covered by contracts already made and by such changes. 
The question with which it is confronted is not one of law, but 
one which addresses itself to the judgment of the committee as 
commissioners. They are bound to see that suitable buildings 
are erected substantially in accordance with the plans prepared 
by the commissioners above referred to. But they cannot ex- 
ceed their appropriation. If that appropriation is not enough 



110 OPINIONS OF THE ATTORNEY-GENERAL. 

for the purpose, it is for them to decide at what part of the 
work they will stop. It becomes, therefore, a question for the 
exercise of their judgment as commissioners whether they shall 
proceed to contract for the erection of the remaining buildings, 
if they find that they can do so with the balance of the appro- 
priation remaining uncontracted for, and then go to the Legis- 
lature for an additional appropriation to make the changes 
which they deem necessary ; or whether they shall make said 
changes now, and then go to the Legislature for an additional 
appropriation for the erection of the remaining buildings. 
They are limited in their expenditure to the sum named in the 
acts above referred to, and are bound to use their best judg- 
ment to secure, if possible, the erection of the buildings for 
that sum. If the work cannot be done for that money, they 
are not responsible. As to when it is their duty to call the 
attention of the Legislature to the fact that the existing appro- 
priation will be insufficient, is not for me to express an opinion. 
Perhaps they may, with the approval of the honorable coun- 
cil, deem it best to proceed to make the changes desired as a 
matter of economy at the present time, and ask later for an 
additional appropriation to complete the buildings. But, in- 
asmuch as the present committee is not responsible for the 
existing situation of affiiirs, but is still charged with the duty 
of seeing that the appropriations are not exceeded, it would 
seem to be the more desirable course for it at once, through 
the Governor and Council, to call the attention of the Legislat- 
ure to the facts, and discharge itself of the responsil)ility of 
determining in which way the balance of the appropriation 
available shall be expended. This, however, is not a matter 
as to which it is incumbent upon me to give advice. 

As to the fourth inquiry propounded by the committee, I 
have to say that I have examined the contracts in reference to 
the material to which it refers in its letter, and I am of the 
opinion that, as to material to which it refers in said inquiry, 
the former building committee, having had the right of accept- 
ance or rejection of such material, and having clearly elected, 
with full knowledge of the facts, to accept the material offered, 
and the contractors having acted upon such action by the com- 



HOSE A M. KNOWLTON, ATTORNEY-GENEEAL. Ill 

mittce in the purchase of said material, the present committee 
cannot reverse said action of its predecessors, so far as the 
same relates to material already purchased or contracted for 
by the contractors, without giving the contractors the right to 
recover damages therefor, as for a breach of contract on the 
part of the Commonwealth. 



Insurance, — Boston Marine Insurance Company, — Corpora- 
tion, — Special Statute. 

The Boston Marine Insurance Company may avail itself of the provisions of 
St. 1886, c. 102, authorizing it to transact fire insurance business. St. 
1887, c. 214, § 28, neither limits nor controls the power conferred upon it 
by this chapter. 

Replying to your letter of February 1, 1894, relating to the To the 
Boston Marine Insurance Company, I have to say : — commissioner. 

The Boston Marine Insurance Company, having long prior February i. 
to 1886 been incorporated and carrying on business as an 
insurance company, may at any time avail itself of the pro- 
visions of St. 1886, c. 102, authorizing it to do fire insurance 
business. 

• St. 1887, c. 214, § 28, providing that if any domestic com- 
pany shall not commence to issue policies within one year after 
the date of its incorporation, or if, after it has commenced to 
issue policies, it shall cease for a period of one year to make 
new insurances, its corporate power shall expire, does not limit 
or control the powers conferred upon this company by the 
statute of 1886 above referred to. This section is obviously 
intended to apply, in the first place, to failure of new com- 
panies to commence business within one year; and, in the 
second place, to a complete cessation of insurance business 
on the part of existing companies. 



112 



OPINIONS OF THE ATTORNEY-GENERAL. 



Trustees of State Primary and Reform Schools, — Agent, — 

Appropriation. 



To the House 
Coramittee on 
Finance. 
1894 
February 8. 



There is no existing legislation authorizing an appropriation to pay for the 
services of an agent appointed by the trustees of the State Primary and 
Reform Schools to visit the children transferred to families from the 
Lyman School for Boys. 

I am in receipt of your letter asking me if "the statutes 
authorize and require the trustees of the State Primary and 
Reform Schools to visit the children placed in ftimilies from the 
Lyman School for Boys, and to inquire into the condition of 
such children, and make such investigation in relation thereto 
as they may think best." 

It would be a sufficient answer to this inquiry to quote the 
opinion of my learned predecessor, given to the Governor on 
October 25, 1893,* in which he says, in the concluding para- 
graph : — 

" On the whole, I am of opinion that it is the duty of the 
trustees of the State Primary and Reform Schools to exercise a 
general oversight and supervision of all children committed to 
these schools during their minority, or until their discharge in 
some manner provided by law." 

This opinion I see no occasion at present to re-examine or 
modify. 

I understand, however, that the precise question before the 
committee is, whether there is any existing legislation which 
will authorize an appropriation to pay for the services of an 
agent to be appointed by the trustees to make such visitations. 
I have been unable to find any such legislation. Whatever 
duty of supervision is entrusted to the trustees of boys placed 
on probation is general in its nature, and must be exercised by 
them as a Board, and not by a paid agent. In this connection 
it will be observed that the statute establishing the State Board 
of Health, Lunacy and Charity (St. 1879, c. 291) expressly 
provides that it ' ' may assign any of its powers and duties to 
agents appointed for the purpose, and may execute any of its 
functions by such agents." No such authority for agency, at 



* See page 96, a7i(e. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 113 

least in respect to visitation, is delegated to the trustees of the 
various primary and reform schools. I am of opinion, there- 
fore, that there is no authority in existing legislation for such 
an appropriation. 

In the consideration of this question, it has been stated to 
mc that the usual way of placing out boys from the Lyman 
School is not under the provisions of Pub. Sts., c. 89, § 38, 
but by sending them back to their homes or elsewhere on pro- 
bation, without any formal contracts of service or apprentice- 
ship. Whether there is any authority for such a course, I do 
not deem it necessary at this time to consider or determine. 



Insane Criminal, — Transfer, — "Worcester Lunatic Hospital, — 
State Farm, — State Prison. 

The trustees of the State Farm have no authority to recommit to the State 
Prison a prisoner who, having become insane, has been removed from the 
State Prison to the Worcester Lunatic Hospital, and thence transferred 
to the State Farm. The right to adjudge vrhen he shall be recommitted 
remains with the officers of the Worcester Lunatic Hospital. 

I have the honor to acknowledge the receipt of your letter. To the 
enclosing the communication of the superintendent of the State i894 
Farm, dated February 7, and to reply to the inquiry contained February lo. 
therein as follows : — 

William Allison, who had been sentenced to the State Prison 
in 1890 for a term of seventeen years, was adjudged insane 
under the provisions of Pub. Sts., c. 222, § 10, and by warrant 
of the Governor removed to the Worcester Lunatic Hospital. 
The language of the warrant was as follows : ' ' You are hereby 
authorized to cause the said convict to be removed to the 
Worcester Lunatic Hospital, there to be kept until, in the 
judgment of the superintendent and trustees thereof, he should 
be returned to prison." This warrant issued February 26, 
1892, and he was thereupon removed to the Worcester Lunatic 
Hospital. 

Subsequently, to wit, August 22, 1892, by order of the State 
Board of Lunacy and Charity, he was transferred from the said 



114 OPINIONS OF THP: ATTORNEY-GENERAL. 

Worcester Lunatic Hospital to the State Farm, and placed in 
charge of the superintendent thereof. This was done under 
the provisions of St. 1887, c. 367, which authorizes the State 
Board to transfer to any other State charitable institution con- 
victs who have previously been committed to a State lunatic 
hospital. 

It now appearing that Allison has become sane, the trustees 
and superintendent of the State Farm are of opinion that he 
should be returned to prison, and desire to know if, under the 
provisions of Pub. Sts., c. 222, § 10, they have authority to 
order his recommitment. I am of opinion, though not without 
some doubt in the matter, that they have no such authority. 
I am led to this conclusion in view of two considerations : — 

Fii'st. — Said § 10 provides that when duly adjudged insane 
he is "to be removed to one of the State lunatic hospitals, 
there to be kept until, in the judgment of the superintendent 
and trustees of the hospital to which he may be committed, 
he should be returned to prison." By St. 1887, c. 367, he 
may be transferred from the Worcester Hospital to the State 
Farm ; but the power of adjudging that he should be returned 
to prison does not seem so to be transferred, but must still be 
exercised by the superintendent and trustees of the hospital 
"to which he was committed." It is so expressed in terms in 
the warrant of commitment, and such is the clear language of 
the statute. It would undoul^tedly be wise to transfer the 
power of ordering a return to the prison, when the convict 
himself is transferred from one institution to another ; but the 
Legislature failed so to provide in terms, and I do not think 
that the statute in question, § 10, can be construed to read in 
by implication such a delegation and transfer of authority. It 
is a statute dealing not with an object of the Commonwealth's 
charity, but with a convict ; and it is therefore to be construed 
strictly, and not to be enlarged or extended as against the 
convict. 

Second. — Even if the power of returning could be trans- 
ferred from the officers of one State lunatic hospital to another, 
so that, for example, the convict, having been transferred to 
the Taunton Lunatic Hospital could have been by the officers 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 115 

of that institution returned to prison, yet it is very doubtful 
whether the State Farm can be called a State lunatic hospital, 
under the terms of Pub. Sts., c. 222, § 10. The words " State 
lunatic hospital" seem to be used technically in the section, and 
as distinguished from a mere asylum or receptacle for the 
insane. The State Farm has been made by the Legislature a 
receptacle for pauper insane, St. 1886, c. 219; Res. 1888, c. 
89. But, without determining whether this legislation makes 
it a State lunatic hospital for any purpose, as that term is used 
in the legislation of the Commonwealth, I certainly do not 
think the trustees and superintendent of the State Farm can be 
said to be trustees and superintendent respectively of a State 
lunatic " hospital," within the meaning of that word as used in 
Pub. Sts., c. 222, § 10. 

It follows, therefore, that the only way in which the convict 
can be transferred is to retransfer him to the Worcester Lunatic 
Hospital, and have the judgment of the officers of that institu- 
tion endorsed upon the order of commitment. 



Insurance, — Admission of Foreign Company. 

A foreign insurance company, in every way qualified to do an insurance busi- 
ness in this Commonwealth, is not to be debarred therefrom because by 
its charter it has a right to transact and is transacting in a foreign State 
the additional business of a trust company. 



the 



lance 
Coraiuissioner. 
1894 



In reply to your communication of February 17, 1894, J^J^ 
inquiring whether a corporation organized under the laws of 
another State, whose principal business is that of a trust com- March i . 
pany, but which also transacts an insurance business, can bo 
admitted under our statute to transact the business of insurance 
in this Commonwealth, I reply as follows : — 

I understand that in answering your inquiry it is to be 
assumed that the company in question is in a situation to 
comply with the requirements of law in reference to a foreign 
insurance company upon its entrance into business in this 
Commonwealth, and that no question is made about the form 
of the agreement, or any reference to any other matter except 



116 OPINIONS OF THE ATTORNEY-GENERAL 

the simple question whether or not a foreign insurance com- 
pany, in every respect qualified to do an insurance business 
in this Commonwealth, is to l)c debarred therefrom because by 
its charter it has a right to transact, and is transacting, also the 
additional business of a trust company. 

In my opinion, there is nothing in the legislation or decisions 
of this Commonwealth to prevent such a company from lawfully 
transacting its insurance business. Of course it is entirely 
within the power of the Insurance Commissioner to see to it 
that only the insurance business that a corporation may lawfully 
do in this Commonwealth is carried on separate and apart from 
any other business. It seems that under the insurance act (St. 
1887, c. 214) the power of the commissioner is ample to give 
to every person insured, and all parties interested in the insur- 
ance business of such a corporation, all the protection which 
could be had if the company was authorized to do, and did, 
only an insurance business.* 



Extradition Papers, — Statutes to be complied with. 

Extradition papers from a foreign State, which comply with the laws of the 
United States and also with the statutes of the demanding State, are 
sufficient to authorize the governor to surrender the fugitive demanded, 
although said papers do not comply with a Massachusetts statute requir- 
ing affidavits by persons having actual knowledge of the offence charged. 

To the In the matter of the demand made by the governor of the 

Governor. "^ ^ ■-; 

1894 State of Nebraska for the extradition of William Clark, and 

Marchj5. upon the question of the sufficiency of the papers and documents 

accompanying the same, I have to say : — 

By the Revised Statutes of the United States, § 5278, it is 
provided that ' ' 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 Terri- 
tory, charging the person demanded with having committed 

• See also page 1, ante. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 117 

treason, felony, or other crime, certified as authentic by the 
governor or chief magistrate of the State or Territory from 
whence the person so charged has fled," it shall be the duty of 
said executive to cause the person demanded to be arrested, etc. 

The demand in question is accompanied by a paper entitled 
"an information," authorized by the laws of Nebraska, and 
which is in fact an affidavit made before a magistrate of the 
State of Nebraska, charging the said William Clark with having 
committed the crime set forth therein. 

The papers, therefore, comply with these provisions of the 
Revised Statutes of the United States. They are also in com- 
pliance with the provisions of the State of Nebraska. 

It is suggested, however, that they do not comply with the 
provisions of Pub. Sts., c. 218, § 1, requiring further that the 
demand be accompanied by a duly attested copy of an indict- 
ment ; or of a complaint, accompanied by affidavits of the facts 
constituting the ofience charged, by persons having actual 
knowledge thereof. Where application is made to the Governor 
of the Commonwealth of Massachusetts to demand from the 
executive of another State the extradition of a person in that 
State, these provisions of our statutes, which are supplementary 
and in addition to the provisions of the Revised Statutes, may 
well govern the acts of the Executive of this Commonwealth. 
But where they are in conflict with the provisions of the Revised 
Statutes of the United States, they are inoperative, for the 
reason that the United States has full jurisdiction of the whole 
matter. The Legislature of Massachusetts has no power to 
enact a law interferino; with the execution of an interstate riffht 
given by the authority of the law of the United States. And 
if it appears that a demand for extradition made upon the 
governor of a State is in compliance with the laws of the United 
States and of the State from which the demand issued, the 
executive upon whom the demand is made cannot lawfully 
refuse to grant the extradition because the papers do not comply 
with the provisions of the statutes of the State upon which the 
demand is made. 

I am of opinion, therefore, that the extradition must be 
granted. 



118 



OPINIONS OF THE ATTORNEY-GENERAL. 



New York, New Haven & Hartford Railroad Company, — 
Old Colony Railroad Company, — Lease, — Corporation, — 
Consolidation, — Contract. 

Under authority of legislation in Connecticut, and likewise in Massachusetts, 
the Hartford & New Haven Railroad Company, a Connecticut corporation, 
and the Hartford «Sb Springfield Railroad Company, a Massachusetts cor- 
poration, became united under the name of the Hartford & New Haven 
Railroad Company. Subsequently, under authority from both States, the 
latter company consolidated with the New York & New Haven Railroad 
Company, a Connecticut corporation, the consolidated body assuming the 
name of the New York, New Haven and Hartford Railroad Company. 
This company, under authority from Connecticut, acquired the New York, 
Providence & Boston Railroad Company, a corporation whose tracks con- 
nected at Providence with the Boston & Providence Railroad Company, 
the latter being leased to the Old Colony Railroad Company. 

The New York, New Haven & Hartford Railroad Company then procured a 
lease of the Old Colony Railroad Company, the lease being made under 
the provisions of a Massachusetts statute, authorizing two railroad cor- 
porations created by this Commonwealth, whose roads enter upon or con- 
nect with each other, to execute a lease of the one to the other, the two 
roads being deemed to connect if one connected with a road leased to the 
other. 

The connecting roads at Providence are the roads of two railroad corporations 
created by the Commonwealth within the meaning of the statute. It is 
immaterial that the connection is made without the limits of the Com- 
monwealth. 



To the Senate 
and House of 
Repreeenta- 
tives. 

1894 
March 16. 



I have the honor to acknowledge the receipt of the order of 
the Legislature, adopted February 1, requesting my opinion as 
to the legality of the lease of the Old Colony railroad to the 
New York, New Haven & Hartford Railroad Company, and to 
reply thereto as follows : — 

I beg leave to suo'gest to the honorable Senate and House of 
Representatives that, under the terms of the order, it is doubt- 
ful, to say the least, whether I am required to do more than to 
examine the lease referred to, and to determine whether its 
provisions appear to be conforma])lo to law. No statement of 
facts accompanies the order, nor is my attention called to any 
special question touching its legality, excepting, perhaps, such 
as may arise upon inspection of the instrument itself. 

But I assume that the order was intended to have a much 
broader scope, and that I am desired to inquire into all the facts 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 119 

material to the transaction, whether appearing of record or not, 
and to consider not only whether in its provisions the lease 
appears to conform to the law, but also its legality in view of 
all the attendant and antecedent circumstances, and of the 
history and status of the contracting corporations. In defer- 
ence, therefore, to what I assume to be the wishes of the 
honorable Senate and House of Representatives, and in view 
of the importance of the question and the wide-spread interest 
felt in it by the public, I have endeavored to ascertain, so far 
as possible, all the facts touching the transaction, including the 
legislative history of the contracting parties, not only in this 
Commonwealth, but in Rhode Island and Connecticut as well. 
In so doing, however, I do not yield my contention that the 
investigation of facts is a matter peculiarly within the province 
of the Legislature through its committees, and that it cannot be 
devolved as of right upon the Attorney-General. 

No special authority for the lease was granted by the Legis- 
lature of this Commonwealth. Its legality, therefore, depends 
upon whether it is authorized by Pub. Sts., c. 112, §§ 220, 
221. These sections, so far as they affect this transaction, 
provide substantially that two railroad corporations created by 
this Commonwealth, whose roads enter upon or connect with 
each other, may execute a lease from one to the other ; and 
that they shall be deemed to connect if one of the roads enters 
upon or connects with a road leased to the other. 

The lease purports to be between the Old Colony Railroad 
Company as lessor and the New York, New Haven & Hartford 
Railroad Company as lessee. It describes both corporations as 
"existing under the laws of the Commonwealth," and recites 
that their " roads connect with each other." If the recitals in 
the lease are true, it is within the provisions of the statute. It 
is necessary, however, to go further, and to ascertain whether 
in fact the parties to the lease are both corporations created by 
the Commonwealth of Massachusetts ; and whether their roads 
connect, and where ; and whether such connection is a connec- 
tion contemplated by the statute. 

There is no claim, as I am informed, that there is any con- 
nection between the roads of the contracting parties excepting 



120 OPINIONS OF THE ATTORNEY-GENERAL. 

at two points. One connection is in Providence, in the State 
of Rhode Island, between the tracks of the Boston & Providence 
Raih'oad Company, a raih'oad company leased to the Old 
Colony Railroad Company, and the tracks which were con- 
structed by the corporation known as the New York, Providence 
& Boston Railroad Company, which it is claimed have been 
acquired and made a part of the road of the New York, New 
Haven & Hartford Railroad Company. The other connection 
is at a point in Massachusetts near the Blackstone River, 
between the tracks of the said Boston & Providence Railroad 
Company and the tracks of the Providence & AVorcester Rail- 
road Corporation, a railroad operated by the New York, New 
Haven & Hartford Railroad Company under a lease. 

I do not deem it important to consider at length the latter 
connection. It is sufficient to say that it is not within the terms 
of the statute, which authorizes a lease only when the connec- 
tion is between the roads of the two parties to the lease, or 
between the road of one party and a road leased to the other. 
A connection formed by two leased lines is not, in my opinion, 
a sufficient connection to authorize a lease under the statute of 
Massachusetts. 

The legality of the lease, therefore, must stand upon the con- 
nection at Providence. This raises two questions : — 

First. — Is a connection between the roads of the contracting 
parties without the limits of the Commonwealth a sufficient 
connection within the words of the statute authorizing the leas- 
ing of railroads ? 

Second. — Are the connecting roads at Providence the roads 
of two railroad corporations " created by this Commonwealth," 
within the meaning of said statute ? 

Upon the first question it is to be observed that there is 
nothing in the words of the statute which can be construed to 
limit the connection required of roads proposing a lease to a 
connection in this State. It must be presumed to have been 
within the knowledge of the Legislature, when the law was 
enacted, that the roads of many of the railroad corporations 
"created by this Commonwealth" extended into other States. 
If in view of this fact it had l)een intended to limit the connec- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 12] 

tion to tracks within the State, the act would doubtless have 
read " whose roads enter upon or connect with each within this 
Commonwealth.'^ The omission of the words italicized, or any 
words of similar import, cannot be regarded as unimportant. 

Nor do I find anytliing in the purpose of the statute which 
requires such a limitation of the provisions regarding connecting 
roads. Two restrictions upon the leasing of railroads appear 
to have been intended by the Legislature in enacting this law. 
One was, that both railroads should be Massachusetts corpora- 
tions. This preserved the control by the State of the leased 
road notwithstanding the lease. Another was, that there should 
be a physical connection between the roads wdiich were to be 
jointly operated under a lease. It is to be remembered that 
all statutes granting privileges to railroad companies are pre- 
sumed to be enacted with a view to the advantage of the com- 
munity for whose use and benefit railroads are chartered. The 
obvious intent of the statute under consideration is to declare 
it to be for the advantage of the public to permit two railroads 
to be united under one management whenever they are so con- 
nected that they can be operated as one line. It is the fact of 
physical connection that is of importance, not the place where 
it happens to exist. A lease between two railroads whose 
tracks do not connect does not benefit the public. But if they 
connect, even though the connection be outside the limits of 
the State, the lease enables them to be operated together as one 
line, and inasmuch as both derive their existence and franchise 
from the Legislature of the Commonwealth, they are still under 
its control, notwithstanding the lease. 

Supposing, for example, there were no general laws author- 
izing a lease between railroad companies, and it was proposed 
that the Legislature should authorize a lease to be made between 
the Providence & Worcester Kailroad Company and the New 
York & New England Railroad Company, whose tracks con- 
nect at Blackstone. The point of junction is said to l)e almost 
exactly upon the line between Massachusetts and Rhode Island. 
The question to be considered being whether such a lease would 
be beneficial to the community served by the two companies, 
could it be said that, inasmuch as both roads derived their cor- 



122 OPINIONS OF THE ATTORNEY-GENERAL. 

porate existence from, and were subject to the jurisdiction of 
Massachusetts, it would make the slightest difference, in deter- 
mining the question as a matter of public policy, whether the 
physical connection between them happened to be on one side 
of the line or on the other ? 

I am not aware that this question has been considered by the 
courts of this Commonwealth. Such decisions as I have 
examined in other States turn upon the language of the statutes 
of those States, none of which are similar in form or substance 
to the statute now under consideration. But I am clearly of 
opinion that a sound and consistent interpretation of the stat- 
ute does not require or justify the interpolation of the words 
' ' within this Commonwealth " after the words relating to the 
physical connection of the roads between which a lease is 
authorized ; that the Legislature, not having in terms so limited 
the connection prescribed, did not intend so to limit it ; and 
that it is not necessary to the legality of a lease under that 
statute that the connection between the roads shall be in this 
Commonwealth. 

The second question, to wit, whether the connecting roads 
at Providence are the " roads " of " two corporations created 
by this Commonwealth," within the meaning of the statute, 
requires an examination of the legislative history of the two 
corporations by whose roads it is claimed the connection is 
made. These are the Boston & Providence Railroad Company 
(the lessee of the Old Colony Railroad Company), coming 
from the north, and the New York, New Haven & Hartford 
Railroad Company, coming from the south. 

The Boston & Providence Railroad Company was incorporated 
in Massachusetts by St. 1831, c. 56. By the terms of its 
charter it was authorized to construct a line from Boston to the 
line of the Conmionwealth in Pawtucket or Seekonk. Statutes 
Massachusetts, 1846, c. 158, authorized the corporation to con- 
struct a branch from Dodo^eville westward to the line of the 
State of Rhode Island. Section 3 of the same chapter further 
provided that said corporation was "authorized to expend of 
their capital stock, such sum as the directors may deem expedient 
for constructing a railroad, which shall be a continuation of the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 123 

branch railroad hereinbefore authorized to be constructed, with 
the raih'oad of the Providence & Worcester Corporation, for 
the laying of a track or tracks from the point of junction of said 
road to the city of Providence, for the purchase of depots and 
a,cconimodations in Providence, and for the making of other 
arrangements, etc." What is now known as the main line of 
the Boston & Providence Kailroad Company southerly from the 
State line was constructed under tliis statute, and under a con- 
tract between the Boston & Providence Railroad Company and 
the Providence & Worcester Railroad Company, providing for 
its joint use by both companies. 

It is well settled that a railroad corporation chartered under 
the laws of a State may, under authority from that State, extend 
its line into another State, if permitted to do so by the other 
State. It still remains throughout its entire length the cor- 
poration of the State from which it derives its charter. It is 
clear, therefore, that the road of the Boston and Providence 
Railroad Company in Providence is the road of a railroad cor- 
poration " created by this Commonwealth," within the meaning 
of Pub. Sts., c. 112, § 220. 

The history of the New York, New Haven & Hartford Rail- 
road Company is as follows : In 1833 the Hartford & New 
Haven Railroad Company was incorporated by the Legislature 
of Connecticut, with authority to construct a railroad from 
Hartford to New Haven. In 1842 the said company was 
authorized by the Legislature of Connecticut to extend its rail- 
road to the north line of the State, and, with the consent of 
Massachusetts, thence to Springfield ; and it was further author- 
ized to form a union with the Hartford & Springfield Railroad 
Company, a Massachusetts corporation. 

In 1839, by c. 101, the Hartford & Springfield Railroad Cor- 
poration was incorporated by the Legislature of Massachusetts, 
with authority to construct a railroad from a point in Spring- 
field to the north line of the State of Connecticut ' ' with a view to 
unite said railroad with a railroad authorized by the Legislature 
of Connecticut, from Hartford to the line of the State of Massa- 
chusetts." In 1844, l)y c. 28, § 2, the Legislature of Massa- 
chusetts provided as follows : " The persons who now are, or 



124 OPINIONS OF THE ATTORNEY-GENERAL. 

may hereafter be stockholders of the Hartford & New Haven 
Railroad Company, a Connecticut corporation, shall be stock- 
holders of this corporation (the Hartford & Springfield Rail- 
road Company) , together with such persons as are now or may 
hereafter become stockholders of this corporation ; and when 
the stockholders shall by vote have assented thereto, the said 
corporations shall become united in one corporation hy the 
name of the New Haven & Springfield Railroad Company." 
The statute of Connecticut of the year 1844, above referred to, 
enacted substantially similar provisions in respect to the Hart- 
ford & New Haven Railroad Company. In each State the 
charter was conditioned upon the granting of a similar charter 
by the other State. By Statutes Massachusetts, 1847, c. 244, 
it is provided that when the union thus authorized shall l)e ac- 
complished " the united corporation shall l)e called the Hart- 
ford & New Haven Railroad Company." Section 2 of the same 
chapter further provided "that the said corporation, so far as 
their railroad is situated in Massachusetts, shall be subject to 
the general laws of this Commonwealth to the same extent as 
though their road were wholly therein." 

The effect of these statutes was to unite, so far as could be 
done l)y concurrent acts of the Legislatures of the two States, 
the entire railroad from New Haven to Springfield under one 
corporation, called the Hartford & New Haven Railroad Com- 
pany. 

In 1844 the Legislature of Connecticut incorporated the New 
York & New Haven Railroad Company, with authority to con- 
struct a railroad from the city of New Haven westerly to the 
west line of the State towards the city of New York. I am 
informed that in 1870, by indentures duly authorized under the 
statutes of the State of Connecticut, the New York & New 
Haven Railroad Company was made lessee by a perpetual lease 
of the railroad company called the Shore Line Railway, whose 
line extended from New Haven eastward to the city of New 
London. The New York & New Haven Railroad Company 
thereby acquired prior to 1871 a line of railroad from the west 
line of Connecticut through the city of New Haven eastward 
to the city of New London. 



HOSEA M. KNOWLTON, ATTORNF.Y-GENERAL. 125 

In the year 1871 an act was passed by the Legislature of 
Connecticut, approved July 26, which, after reciting that the 
New York & New Haven Railroad Company and the Hartford 
& New Haven Railroad Company had on the third day of 
August, 1870, entered certain covenants and agreements under 
authority of and in accordance with the laws of the State, by 
which covenants and agreements the entire railways and prop- 
erties of said corporations had been merged into a joint estate, 
and after further reciting that it would be for the convenience 
and best interests of said companies and of the travelling and 
shipping public having dealings with them that said companies 
should have a single corporate existence, enacted that the Hart- 
ford & New Haven Railroad Company might sell, transfer, 
merge and consolidate its corporate rights, powers and estates 
to, into and with the New York & New Haven Railroad Com- 
pany, upon such considerations, terms and conditions as might 
be agreed upon between said corporations ; that the directors 
might enter into joint articles of agreement for the sale, trans- 
fer, purchase, merger and consolidation thus authorized, pre- 
scribing the terms thereof, and providing that the number of 
shares should not exceed "the present authorized capital of 
said companies ; " which agreement should be suljmitted to the 
stockholders of each of said corporations separately ; and if 
approved in the manner directed in said act, and a certified 
copy of the agreement of the certificate of adoption of the same 
by the stockholders of the two corporations filed in the office 
of the secretary of the State of Connecticut, that thereupon the 
said Hartford & New Haven Railroad Company should be and 
become merged and consolidated into and with the said New 
York & New Haven Railroad Company ; and that the consol- 
idated corporation should continue a body politic and corpo- 
rate under the corporate name of the New York, New Haven & 
Hartford Railroad Company, and should possess, hold and 
enjoy all the rights, powers, franchises and privileges thereto- 
fore vested in either of said corporations ; and that thereupon 
all the property, real and personal, belonging to either of said 
corporations should be deemed and taken to be transferred to 
and vested in the corporation into which such merger was 



12(3 OPINIONS OF THE ATTORNEY-GENERAL. 

made. It was further provided that the consolidated corpora- 
tion should be subject to the charter of the corporation into 
which said merger was made (to wit, the New York & Xew 
Haven Railroad Company), with the proviso that when any 
special duty or liability was imposed, or any special privilege, 
franchise or immunity was conferred upon the corporation so 
merged (to wit, the Hartford & New Haven Railroad Com- 
pany), such duty and liability and such franchise and privilege 
should attach to the consolidated corporation, " so for as the 
same were applicable to the right and franchise of said merged 
corporation. It was further enacted in § 6 that said consolida- 
tion should at " all times be subject to the power, control and 
legislation of the General Asseml^ly of the State." 

In the following year (Statutes Massachusetts, 1872, c. 171), 
the Legislature of Massachusetts passed an act almost identical 
in its terms with the Statute of Connecticut above recited, au- 
thorizing the merger of the Hartford & New Haven Railroad 
Company into the New York & New Haven Railroad Com- 
pany ; and providing that when such agreement was made, 
approved and filed in the ofiice of the Secretary of the Com- 
monwealth, the two companies should be merged into one cor- 
poration under the name of the New York, New Haven & 
Hartford Railroad Company. The only material difference in 
the provisions of the two charters is that, instead of § 6 of the 
Connecticut charter above recited, the Massachusetts charter 
provided as follows : "Said consolidated corporation shall at 
all times be subject to the Legislature of this State as to that 
portion of its road in this State, as heretofore ; and shall be 
subject to the general laws of this State as to its whole road 
so far as such laws may be applicable thereto." 

In pursuance of these charters, an agreement was entered 
into by the directors of the two railroad companies, which was 
duly ratified by the stockholders of both companies and filed in 
the office of the Secretary of this Commonwealth on the sixth 
day of August, 1872, and in the office of the secretary of the 
State of Connecticut on the second day of March of the same 
year. This agreement conformed to the provisions of said 
charters, and recited that "the Hartford & New Haven Rail- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 127 

road Company doth hereby sell, transfer, merge and consolidate 
its corporate rights, powers and estate to, into and with the 
New York & New Haven Railroad Company," under the name 
of the New York, New Haven & Hartford Railroad Company. 
It further provided that the capital stock of the consolidated 
corporation should be $15,500,000, "which is the amount of 
the present authorized capital of the two companies." 

By a statute of Connecticut, approved June 14, 1889, the 
New York, New Haven & Hartford Railroad Company was 
authorized to increase its capital stock for the purpose of pay- 
ing its funded and floating debt, "and to make permanent 
additions and improvements." It was further authorized to 
" increase its capital stock up to and during the year 1899 for 
the shares of the capital stock and for the oljligations of any 
railroad company whose property it may hold by virtue of a 
lease for a term as long as fifty years ; and, in case of roads to 
be leased hereafter, whose railroad is located in whole or in 
part within this State." By § 3 it was further provided that 
" in case the said New York, New Haven & Hartford Railroad 
shall retire all of the capital stock of any such leased line by 
purchase or exchange, the officers of said respective companies 
shall certify the same, by certificate to be filed in the office of 
the State Secretary ; and the said stock of said leased line and 
all its franchises shall thereupon be and be deemed to be forever 
transferred to and merged in the stock and franchise of said 
New York, New Haven & Hartford Railroad Company." 

I am informed that on the first day of April, 1892, an 
indenture, purporting to be a lease for the term of sixty years, 
was executed between the New York, Providence & Boston 
Railroad Company, " a corporation existing under the laws of 
the States of Rhode Island and Connecticut," owning and 
operating a railroad from New London to the city of Provi- 
dence, and there connecting with the tracks of the Boston & 
Providence Railroad Company, as lessor, and the New York, 
New Haven & Hartford Railroad Company, "a coi-poration 
existing under the laws of the States of Connecticut and Massa- 
chusetts," as lessee, by which the lessor demised to the lessee 
its railroad, franchises and property. The lease contained a 



128 OPINIONS OF THE ATTORNEY-GENERAL. 

further covenant as follows : ' ' And the lessee further covenants 
that, under the provisions of a certain resolution of the General 
Assembly of Connecticut amending the charter of the New York, 
New Haven & Hartford Railroad Company, approved June 14, 
1889, and the amendment thereto approved June 22, 1889, it 
will make prompt application to the committee constituted by 
§ 2 of said resolution for the approval of terms of exchange 
whereby shares of the capital stock of the lessee may be ex- 
changed for shares of the capital stock of the lessor, share for 
share ; and so soon as said terms of exchange shall have been 
approved by said committee, the lessee will increase its capital 
stock by the amount of the capital stock of the lessor, and will 
give notice thereof to each stockholder of the lessor by mail ; 
and thereafter, upon the assignment to the lessee of any share 
or shares of the capital stock of the lessor, and the surrender 
of the certificate or certificates therefor, the lessee will, when- 
ever its stock transfer-books are open, issue to the owner of 
said share or shares, in exchange therefor, a certificate for a 
like number of shares of the capital stock of the lessee, as pro- 
vided in said resolution, and will make an equitable adjustment 
in cash for the diflerence in the dates upon which the quarterly 
dividends of the respective companies have been paid." This 
lease was authorized under the General Statutes of Connecticut, 
§ 3472, which provided that " any railroad company may make 
lawful contracts with any other railroad company with whose 
railway its tracks may unite or intersect with relation to its 
business or property ; and may take a lease of the property or 
franchise of, or lease its property or franchise to, any such 
railway company." 

The Legislature of Rhode Island, on the sixth day of April, 
1892, passed an act providing that the New Y'ork, Providence 
& Boston Railroad Company should be authorized and em- 
powered to lease its railroad, property and franchise to the 
New Y^'ork, New Haven & Hartford Railroad Company, for a 
term not exceeding ninety-nine years ; and upon such terms 
and conditions as had been or should be agreed upon by said 
companies; and "the New Y^ork, New Haven & Hartford 
Railroad Company is hereby authorized and empowered to 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 129 

accept such lease, and to hold and use said demised railroad, 
property and franchise, and to acquire the same, in accordance 
with the terms and conditions of said lease ; and thereupon 
shall succeed to and have, use, exercise and enjoy all the 
rights, privileges and powers heretofore granted and belonging 
to the said New York, Providence & Boston Eailroad Company." 

I am further informed that under the provisions of said lease 
the stock of the New York, Providence & Boston Railroad 
Company was all delivered to and retired by the New York, 
New Haven & Hartford Eailroad Company in exchange for 
stock of that company, prior to the third day of February, 
1893. On the last-named date, the New York, Providence & 
Boston Railroad Company executed and delivered to the New 
York, New Haven & Hartford Railroad Company what pur- 
ported to be a quit-claim deed of its entire property, franchises 
and privileges. On the twenty-fourth day of February, 1893, 
the Legislature of Rhode Island passed an act reciting that the 
New York, New Haven & Hartford Railroad Company had 
succeeded to the rights, privileges and powers, and become 
subject to the duties, obligations and liabilities of the New 
York, Providence & Boston Railroad Company. As a result 
of these transactions, and by virtue of the legislative acts of 
the States of Connecticut and Rhode Island, it appears that the 
New York, New Haven & Hartford Railroad Company acquired 
and succeeded to all the property, franchises and privileges of 
the New York, Providence & Boston Railroad Company ; and 
that the tracks in Providence connecting with the tracks of the 
Boston & Providence Railroad Company became, before the 
date of the lease now in question, were and are the tracks of the 
New York, New Haven & Hartford Railroad Company. 

None of these proceedings, however, subsequent to the 
charter of 1872, were authorized or ratified, at least in express 
terms, by the Legislature of Massachusetts. On the other 
hand, there were statutes of this State in force when the charter 
of 1872 was granted which, it maybe claimed, the proceedings 
above recited are in conflict with, if not in violation of. Mas- 
sachusetts Statute, 1871, c. 392 (now Pub. Sts.,c. 112, § 59), 
provided, in sul:)stance, that when a railroad corporation was 



130 OPINIONS OF THE ATT0RNP:Y-GENERAL. 

authorized to increase its caj)ital stock, it should, if the market 
vahie of its shares was above par, sell the new stock at auction 
in the city of Boston. The act contained a further provision 
as to the methods of advertising and conducting said sale. 
Massachusetts Statute, 1868, c. 310, provided that no railroad 
corporation should create any additional new stock, or issue 
certilicates thereof, unless the par value of the shares so issued 
be first paid in cash to the treasurer of said corporation ; and 
that all certificates of stock issued in violation of the foregoing 
provision should be void, and the directors issuing the same 
should 1)6 liable to a penalty of one thousand dollars each, to 
be recovered by indictment in any county where any of said 
directors resided. This act was incorporated into the general 
railroad law of 1874, and was re-enacted by Pub. Sts., c. 112, 
§ 61 ; with the additional provision that if a railroad corpora- 
tion, without authority of the General Court, should increase 
its capital stock beyond the maximum fixed in its act of incor- 
poration, or in conformity with the provisions of the general 
railroad law of Massachusetts, the certificate so issued should 
be void. It may be assumed that these provisions of the laws 
of the Commonwealth were not observed in the proceedings of 
the New York, New Haven & Hartford Railroad Company, above 
recited. There is another statute, first enacted in Massachu- 
setts Statutes, 1871, c. 389, and now forming the last sentence 
of Pub. Sts., c. 112, § 61, which provides that : " If a railroad 
corporation owning a railroad in this Commonwealth and con- 
solidated with a corporation in another State owning a railroad 
therein increases its capital stock, or the capital stock of such 
consolidated corporation, except as authorized by this chapter, 
without authority of the General Court, or without such au- 
thority extends its line of road, or consolidates with any other 
corporation, or makes a stock dividend, the charter and franchise 
of such corporation shall be subject to be forfeited and to 
become null and void." 

This apparent conflict l^etween tlie legislation of Massachu- 
setts and of Connecticut, so fiir as the same has reference to a 
railroad company holding a charter from each, raises important 
questions, the determination of which involves the exact issue 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 131 

now under consideration, to wit, whether the road constructed 
by the New York, Providence & Boston Raih'oad Company and 
connecting Math the road of the Boston & Providence Railroad 
Company at Providence had become and was on the fifteenth 
day of February, 1893 (the date of the lease in question), the 
"road" of the New York, New Haven & Hartford Railroad 
Company, a corporation "created by the Commonwealth of 
Massachusetts." These questions may be stated to be : — 

First. — What is the eflect of reciprocal statutes enacted by 
two or more States, purporting to form one consolidated cor- 
poration into which are merged two or more corporations pre- 
viously existing in each State respectively ? 

Second. — To what extent does each State retain control over 
a consolidated corporation so formed? 

To state the first question more explicitly in its relation to the 
present issue, do the two charters create one corporation, which 
is endowed with the rights granted by each charter, including 
the power of enlargement, gro'v\i;h and extension in each State 
under the authority of the Legislature of that State ? Or do 
they create two separate and distinct corporations, in the sense 
that each holds its property under a separate title, so that a 
contract made under the authority of one State does not enure 
to the l)enefit of both corporations, l)ut only to the corporation 
of the State authorizing the contract ? 

These questions are of grave importance. Among other 
Massachusetts corporations, the Boston & Albany, the Boston 
& Maine, the Eastern, the New York & New England and the 
Nashua & Lowell were incorporated by similar concurrent 
legislation of this and other States ; and the same questions 
are liable to arise at any time affecting the rights and duties of 
those corporations. I am not aware that the questions sug- 
gested here have been passed upon by our courts. In Attorney- 
General V. The Boston & Maine Railroad Company, 109 
]\Iass. 99, the whole matter was ably discussed by counsel, from 
whose briefs 1 have derived much valuable assistance. But in 
view of certain special legislative provisions applicable to the 
defendant corporation, the questions raised were not adjudi- 
cated. In his opinion in that case Mr. Justice Morton says : 



132 OPINIONS OF THE ATTORNEY-GENERAL. 

' ' If the government of Massachusetts had taken no action upon 
the subject, the case would present the important questions, 
ably argued by counsel as to the relative powers of the several 
States by whose concurrent action a consolidated corporation 
like this has been created, acting independently of each other, 
over the corporation, and particularly over that part of its road 
situated within their limits. But we have not found it neces- 
sary to consider these questions, because," etc. 

Consolidating statutes similar in form have been enacted in 
many of the United States. Early in the history of railroads, 
the advantag-es of through trunk lines made such legislation 
obviously necessary to facilitate intercommunication between 
different parts of the country. The status of such corporations 
has been elaborately considered in many cases both in the 
Federal and the State courts ; but, as far as I can discover, 
the precise question involved in the present inquiry, to wit, the 
power of a corporation to increase its capital stock. and extend 
its road in one State by the authority of that State, but without 
the sanction or against the prohibition of another State, has not 
been adjudicated. 

There has been, moreover, some apparent conflict among the 
cases, even before the same tribunal, in discussing the character 
and scope of such consolidations. For example, in Railroad 
Company v. Harris, 12 AY all. 65, a case in the Supreme Court 
of the United States, Mr. Justice Swain, in delivering the 
opinion of the court, said: "We see no reason why several 
States cannot, by competent legislation, unite in creating the 
same corporation, or in coml)ining several pre-existing cor- 
porations into a single one." On the other hand, in N'ashua <& 
Lowell Railroad Corporation v. Boston tC Lou'ell Railroad Cor- 
poration, 136 U. S. 356, a case before the same tribunal, INIr. 
Justice Field delivering the opinion of the majority of the 
court, in speaking of the statutes of Massachusetts and New 
Hampshire, which purport to consolidate the corporation in 
each State known as the Nashua and Lowell into one corpora- 
tion, said: "The new corporation created by ISIassachusetts, 
though having the same name, composed of the same stock- 
holders and designed to accomplish the same purpose, is not 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 133 

the same corporation with the one in Xew Hampsliire. Identity 
of names, powers and purposes does not create an identity of 
origin or existence, any more than any other statutes, alike in 
language, passed by different legislative bodies, can properly 
be said to owe their existence to both. To each statute and 
to the corporation created ])y it there can be but one legis- 
lative paternity." The chief justice and Justices Gray and 
Lamar, however, dissented from this opinion. In Rmlicay 
Co. V. Auditor- General, 53 Michigan, 79, Cooley, J., said : 
"It is impossible to conceive of one joint act, performed 
simultaneously by two sovereign States, which shall bring a 
single corporation into being, except it be by compact or 
treaty." On the other hand, in Home v. BoMon <& Maine 
Railroad Company, 62 jST. H. 454, the court, speaking of the 
Boston & Maine Railroad Company, said, "the defendants are 
a single corporation, having its powers from, and existing by 
the laws of Maine, New Hampshire and Massachusetts." And 
in Covington Bridge Company v. Mayer, 31 Ohio, 317, speak- 
ing of the effect of similar consolidating statutes upon the cor- 
poration so formed, the court said: "It is in truth a single 
corporation with the power of two. It acts under two charters, 
which are in all respects identical, except as to the source from 
which they emanate. What is authorized by one of these 
charters is authorized by both. What may be lawfully done 
under one may be lawfully done under both." 

But, notwithstanding the apparent inconsistency of these 
views, in my opinion they may lie largely reconciled Ijy con- 
sideration of the true essence of corporations, and of the 
different but not inconsistent definitions of those bodies which 
may be given, according to the point of view from which they 
are regarded. These different aspects of corporations gi'ow 
out of the nature of the issues before the court in the several 
cases to which I have alluded ; and they go far toward explain- 
ing the seeming conflict in the views expressed. 

A recurrence to definitions may therefore be of assistance in 
determining the question now under discussion. Regarded as 
a creature of the sovereign, a corporation has been defined to 
be "an artificial being, invisible, intangible and existing only 



134 OPINIONS OF THE ATTORNEY-GENERAL. 

in contemplation of law." As such, it is obvious that there can 
be no sucli thing as a corporation which owes its existence to 
two or more independent sovereigns. Two States cannot unite 
in one legislative act. As an artificial person, created by an 
act of legislation, it is the child only of the Legislature by 
which it was created. It cannot have two parents. 

But such a definition, although entirely accurate, and in some 
respects sufficient, falls far short of describing a corporation in 
fact. For all purposes, excepting such as relate to its origin, 
domicile and similar matters, a corporation may he defined as 
a collection of persons united in one body under a special 
denomination, having perpetual succession under an artificial 
form, and capable of taking and granting property, of suing 
and being sued, of making contracts, of enjoying privileges and 
immunities in common, and of exercising the right conferred 
upon it by its charter. In other words, as has been well said 
by an able writer (Morawetz on Corporations, § 1), a corpora- 
tion is not "in reality a thing distinct from its constituent 
parts. The Avord ' corporation ' is but a collective name for the 
corporators or members who compose an incorporated associa- 
tion." 

Bearing in mind these diflerent, but by no means inconsistent, 
definitions, it is not difficult to understand the status of a con- 
solidated corporation, like the New York, New Haven & Hart- 
ford Railroad Company. With respect to its origin, creation 
and domicile, and regarding it as an artificial person or entity 
created l)y legislation, it is a distinct cor})oration in each State. 
But, as to all the purposes for which it w^as created, it is, and 
must have been contemplated l)y each Legislature to be, one 
corporation in both States. It is but one body of men, formed 
into one company. All the property of its constituents (the 
two domestic corporations and their stockholders) has been 
merged into one joint and indivisible stock, represented by one 
set of shares, managed by one set of officers, and in all respects 
dealt Avith as one property and ))usiness. It may connnit torts, 
and torts may be committed upon it as one corporation. It 
makes its contracts as one corporation. It grants and acquires 
property as one corporation. It has no machinery by which it 



HOSEA M. KNOWLTON, ATTORNF.Y-GENERAL. 135 

can act in a dual capacity. So far as respects its charter, it is 
two corporations. As to its property, contracts and business, 
it is one and indivisible. In short, to quote the words of the 
Ohio court above cited, it is, in fact, "one corporation with 
the power of two corporations." 

An examination of the case oi Attorneij- General v. Boston & 
Maine Railroad Comj^any, above cited, goes far to contirm 
this position. Though it is not so declared in express terms, 
yet throughout the opinion the Boston & Maine Kailroad Com- 
pany, holding charters from the legislatures of three States, is 
regarded and spoken of as one corporation, and not as three 
corporations acting together. 

It follows that whatever property it has acquired by contract, 
whether upon its joint credit or in exchange for its joint stock 
or its joint surplus, is added to and becomes a part of its 
property as one corporation. To hold otherwise would be to 
destroy at once the unity of action and interest which both 
legislatures must have contemplated, and would divide it into 
two corporations, in fact, where only one was intended and 
created. Whether it be a locomotive, a station, a bridge, an 
addition to its track or its location, a new branch, or even the 
property and franchise of a connecting road, whatever is pur- 
chased by the joint assets of the corporation becomes a part of 
the joint property of the corporation. 

The acquiring and retiring of the stock and the purchase of 
the property, road and franchises of the New York, Providence 
& Boston Railroad Company was a transaction differing not in 
kind, but only in degree, from the acquisition of any other 
property. Being acquired, it l)ecame and was the property of 
the corporation ; and the road at Providence became and was 
the road of the corporation. It was no less its property be- 
cause it was a corporation created by the Commonwealth of 
Massachusetts and by the State of Connecticut as well. 

It remains to consider whether and how far the transactions 
by which the Ncav York, New Haven & Hartford Eailroad 
Company acquired the road of the New York, Providence & 
Boston Railroad Company are affected by the provisions of 
the statutes of this Commonwealth, above recited, relating to 



136 OPINIONS OF THE ATT0RNEY-GP:NERAL. 

the increase of capital stock of railroad companies, it being 
conceded that they were not observed in those transactions. 

Certain preneral principles, in the light of which these statutes, 
as well as the statutes of consolidation, must l)e regarded, 
underlie the discussion of this question. The States of the 
Union in respect to the control of persons and property within 
their liorders are as to each other sovereign. Xo State can be 
hampered or hindered by another State in the full and effectual 
control of its subjects and their property within its limits. In 
the matter of concurrent legislation by two States, creating a 
consolidated corporation out of two domestic corporations, 
neither State has precedence over the other. Each retains all 
the rights it had before within its jurisdiction, and no legisla- 
tion of the other State can affect or impair them. 

The charter by Massachusetts of the New York, New Haven 
& Hartford Railroad Company (St. 1872, c. 171), must be 
regarded as concurrent legislation with the charter of Connecti- 
cut. The Massachusetts act does not, indeed, refer in terms 
to the Connecticut act. But it purports to create a new cor- 
poration which should succeed to the rights of two existing 
corporations, one chartered solely by Connecticut and the 
other by the two States expressly concurring, and which new 
corporation should operate and maintain a railroad line in both 
States. This, obviously, could not be done except by con- 
currence of Connecticut ; and such concurrence must have 
been in contemplation by the Legislature of Massachusetts 
when it gave a charter professing to deal with a Connecticut 
corporation. Moreover, the Massachusetts charter was granted 
the next year after the Connecticut charter, and was so identical 
in its terms and provisions that it is inconceivable that the 
similarity could have been accidental. The agreement for 
merger tiled in the office of the Secretary of the Common- 
wealth, which was a necessary antecedent to the taking effect 
of the charter, recited that it was executed in [)ursuance of 
authority granted by the legislatures of both States. 

Acting, therefore, with full knowledge of and acquiescence 
in the fact that the railroad company it incorporated had 
already received a similar charter from Connecticut, the Leg- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 137 

islature of Massachusetts must be presumed to have conceded, 
by implication, the right to the consolidated corporation to 
have and exercise such powers as the State of Connecticut, act- 
ing upon matters within its exclusive jurisdiction, should grant 
to it by virtue of its sovereignty ; and to reserve to itself the 
right to exercise exclusive control over the corporation only as 
to such matters as should be within its exclusive jurisdiction. 
Any other construction of the rights conceded and reserved by 
the reciprocal charters would tend to cripple, if not to destroy, 
the power of the corporation to carry on the business for which 
it was created. 

To illustrate these propositions, suppose, when the charters 
were granted, the road in Connecticut w^as constructed with a 
single track ; and that subsequently the Legislature of that 
State had enacted a law requiring all railroads in the State to 
be equipped with double tracks, and had further authorized an 
increase of the capital stock of this road to meet the expense 
of such equipment, prohibiting the payment for it out of sur- 
plus earnings, or by incurring a debt therefor. All these 
matters would be exclusively within the jurisdiction of that 
State. Such an increase of the capital of the company would 
be necessary to the continuance of its franchise in Connecticut, 
and would l)e obviously valid. Even though Massachusetts 
were to pass a law prohibiting such an increase under penalty 
of indictment, and declaring such certificates of new shares 
void, it would be ineflectual, because it would be an attempt 
to impair the control by Connecticut over the consolidated road 
as to matters under the exclusive jurisdiction of that State. 

The same principle holds equally true of extensions of the 
railroad within the limits of either State. Such extensions are 
authorized by the Legislature liecause they are presumed to be 
for the advantage of the State and its citizens. It is for the 
State within which the railroad is situated to determine when 
the leasing or acquiring of a connecting road, the building of a 
branch or the extension of its existing road is required in the 
interest and for the convenience of its citizens. For either 
State to pass laws purporting to interfere with or limit the 
exercise of this prerogative by the other State is to deny to 



138 OPINIONS OF THE ATTORNEY-GENERAL. 

that State the right to legislate for the benefit of its people as 
to matters Avithin its own jurisdiction. 

To regard the statutes of Massachusetts now under consid- 
eration as intended to impair the validity of acts done under 
the authority of Connecticut, legislating upon matters within 
its jurisdiction, is inconceivable. It follows, therefore, that 
those statutes must be regarded as relating only to railroad 
corporations chartered solely by the Commonwealth and under 
its exclusive control ; or, if applicable to consolidated corpora- 
tions, that they contain the implied exception that they are not 
intended to prohibit or invalidate acts lawfully done under the 
authority of another State legislating upon matters over which 
it has full jurisdiction. 

But what remedy, it may be asked, has the Commonwealth, 
if its consolidated corporations do things under the authority 
of another State, lawfully exercised, which are contrary to the 
spirit and policy of its own legislation ? Whether there be 
other remedies, which may be doubtful, there is certainly one 
which is eifectual. It may revoke its charter. It may even 
go further, and declare that such acts shall be a revocation of 
its charter. The Legislature of Massachusetts has not pro- 
ceeded to this extent. It has contented itself with the declara- 
tion in St. 1871, c. 389 (now Pub. Sts., c. 112, § 61), that 
such acts shall render the charter subject to forfeiture. The 
liistory of the law^ sheds much light upon the view^ taken by 
the Legislature as to its powders of remedial legislation for 
evils that might result from the exercise of franchises Ijy a 
consolidated corporation, granted to it by another State in 
contravention of the pohcy of Massachusetts. It originated 
in an order instructing the railroad committee to consider the 
effect of the consolidation of the Boston & Albany Railroad 
Company with other corporations in the State of New York. 
In the report of that committee made to the Legislature the 
questions now under consideration were fully discussed, and 
the possibilities growing out of the exercise of a double fran- 
chise were clearly set forth. The report closes with these 
words : ' ' To assert any direct control over the corporations 
of other States would, of course, be futile ; but there seems no 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 139 

objection in law or justice to coupling with a grant of a fran- 
chise any reasonable conditions and limitations. No complaint 
can justly be made by a corporation created by and receiving 
its privileges from this State, if the State requires that its 
action and the exercise of its powers under the charter granted 
l)y another State shall be subject to all the limitations upon its 
rights in this State, and that the attempt to exercise greater 
powers without the assent of this State shall be ground for a 
forfeiture of its franchise in this State." 

With this report was submitted a bill similar to the law as 
it now stands, excepting that it provided that if such a railroad 
corporation should increase its capital stock, etc., without the 
authority of the Legislature of this Commonwealth, "the 
charter and franchise of such corporation shall be forfeited and 
become null and void." This bill was amended by the Legis- 
lature so that it read "shall be subject to he forfeited and l)e- 
come null and void ; " and as thus amended it became a law. 
It is scarcely necessary to say that as amended the law amounts 
to nothing more than a declaration of the policy of the State, 
and that it does not pretend to prohibit, much less to make un- 
lawful, the acts of a consolidated corporation done in another 
State, and under the lawful authority of the Legislature of that 
State. 

I am, therefore, of the opinion that the railroad which con- 
nects with the road of the Boston & Providence Railroad Com- 
pany at Providence is the "road" of the New York, New 
Haven & Hartford Railroad Company, a corporation " created 
by the Commonwealth of Massachusetts." I am not disturbed 
in this conclusion by the suggestion which has been made that 
it could not have been intended by the Legislature that a con- 
struction should be put upon its statutes, which would permit 
a lease to be executed, under which extensive railroad systems, 
like the Old Colony and Boston & Providence, should pass into 
the control of a corporation largely owned and controlled in 
another State, and owning but a few miles of track in this 
Commonwealth. The intent of legislative acts is to l)e judged 
by their scope. It will not be seriously questioned, I presume, 
that, by virtue of its connections at Springfield, the New York, 



140 



OPINIONS OF THE ATTORNEY-GENERAL. 



New Haven & Hartford Railroad Company might have acquired 
a lease of the Boston & Albany railroad system, or even of the 
Boston & Maine system. And yet the evils, if any, of such a 
transaction, would be no less than the lease of the Old Colony 
Railroad. 

My attention has l>een called to some j^rovisions in the lease 
providing for an exchange of the stock of the lessor for the 
stock of the lessee. The clause begins with these words ; 
"And the lessee further covenants that as soon as it lawfidli/ 
may, it will prior to January 1, 1900, issue in proportion of 
nine shares of its own stock for ten shares of the capital stock 
of the lessor," etc. It is plain that this covenant does not 
invalidate the lease, because it only provides for a "lawful" 
issue and exchange. Whether, since the execution of the 
lease, unlawful acts have been done under this covenant, does 
not affect the legality of the lease, and is not within the scope 
of the inquiry submitted to me. 

Upon all the facts, therefore, I am of the opinion that the 
lease is legal. 



Justice of the Peace, — Appointment, — Commission, — Consti- 
tutional Law. 

The appointment of a justice of the peace is complete when the seal of the 
Commonwealth is affixed to the commission. 



To the 
Governor. 

1894 
March 29. 



I have the honor to acknowledge the communication of Your 
Excellency, dated March 28, requesting my opinion upon the 
following question, to wit: a citizen of this Commonwealth 
has been appointed justice of the peace, and his commission as 
such has been duly signed by the Governor, and the seal of the 
Commonwealth affixed l)y the Secretar}'. The commission has 
not been delivered to him, but he has paid the fee therefor. 
Can the commission now be revoked ? 

The Constitution of the Commonwealth appears to provide 
that the successive steps in the constitution of judicial offices 
shall be as follows : first, the appointment ])y the Governor ; 
second, confirmation by the Council ; third, the signature of 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. Ul 

the Governor to the commission ; fourth, the affixing of the 
seal of the Commonwealth l)y the Secretary of State. To these 
may be added the delivery of the commission. 

In my opinion, the appointment is complete when the seal 
of the Commonwealth is affixed to the commission, if not before. 
The person named in the commission then holds the office to 
which he has been appointed, and, the tenure of the office being 
fixed by the Constitution, his commission cannot be revoked. 
Pub. Sts., c. 21, § 1. 

I am not aware that the question has been decided in this 
Commonwealth, but under substantially similar provisions of 
the Federal laws it has been held hy the Supreme Court of the 
United States that the office is constituted by the signing and 
sealing of the commission, and that the delivery of the commis- 
sion is not a necessary precedent. 

In United States v. Le Baron, 19 How. 73, Mr. Justice 
Curtis at p. 78 says : " When a person has been nominated to 
an office by the president, confirmed by the senate, and his 
commission has been signed by the president, and the seal of the 
United States affixed thereto, his appointment to that office is 
complete. . . . The transmission of the commission to the 
officer is not essential to his investiture of the office. If by any 
inadvertence or accident, it should foil to reach him, his posses- 
sion of the office is as lawful as if it were in his custody. It is 
but the evidence of those acts of appointment and qualification 
which constitute his title, and which may be proved by other 
evidence." 

To the same effect is Marbury v. Madison, 1 Cranch, 137. 
In this case Chief Justice Marshall in delivering the opinion 
says (p. 157) : " Some point of time must be taken when the 
power of the executive over an officer, not removable at his 
will, must cease. That point of time must ])e when the con- 
stitutional power of appointment has been exercised. And this 
power has been exercised when the last act, required from the 
person possessing the power, has been performed. This last 
act is the signature of the commission." And again, on p. 160 : 
" The transmission of the commission is a practice directed by 
convenience, l)ut not by law. It cannot, therefore, be neces- 



142 OPINIONS OF THE ATTORNF.Y-GENERAL. 

sary to constitute the appointment, which must precede it." It 
may be observed that the case of Marbury v. Madison was 
touching the commission of a justice of the peace for the 
District of Columbia, as to whose appointment the provisions 
of the Constitution of the United States and of the statutes 
were substantially similar to those of the Commonwealth of 
Massachusetts for the like olficer. 



State Officials, — Expenses incurred in Travelling outside 
Limits of Commonwealth. 

Bills for expenses In attending conventions and travelling without the limits 
of the Commonwealth cannot be paid out of an appropriation for inci- 
dental and contingent expenses of a commission, when sucli attendance 
or travel is not included among the official duties of the commission. 

To the In reply to your letter of March 3, inquiring whether ex- 

1894 ' penses incurred by boards, commissioners and other officials 

Marchsi. ^^^ travelling outside the limits of the Commonwealth, more 

particularly to attend conventions, etc., can be properly al- 
lowed from existing appropriations, I have to say as follows : — 
The expenses to be allowed out of an appropriation depend 
entirely upon the purpose for which the appropriation is made ; 
and this can be ascertained only by examining each act making 
such appropriation. In answering your questions, therefore, 
I confine my opinion to the expenses of the officials whom you 
mention specifically and to their expenses under the laws of 
1893, such being the appropriations concerning which these 
questions have arisen. 

As to the Insurance Commissioner, an appropriation was 
made "for incidental and contingent expenses in the depart- 
ment of the Insurance Commissioner." A bill for the expenses 
of the commissioner and deputy in attending an insurance con- 
vention outside the Commonwealth cannot be paid from such 
an appropriation. 

The insurance commission is established by statute with cer- 
tain well-defined duties. Attendance at insurance conventions 
is not among them. The fact that such attendance might have 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 143 

a tendency ultimately to increase the utility of the commission 
does not authorize the expenses so incurred to be paid out of 
an appropriation limited by its terms to the expenses of its 
statute duties. 

For the same reason, bills incurred by members of the Board 
of State Lunacy and Charity in attending the conference of 
charities cannot be paid out of an appropriation made "for 
expenses of the Board of Lunacy and Charity, including travel- 
ling and other expenses of members." Neither can a bill in- 
curred by a member of the Bureau of Statistics of Labor in 
attending a statistical convention outside the limits of this 
Commonwealth be paid out of an appropriation ' ' for such 
expenses of the Bureau of Statistics of Labor as may be 
necessary." 

For the same reason, a bill for expenses by the Warden of 
the State Prison, the Superintendent of the Massachusetts 
Keformatory and the Superintendent of the Reformatory Prison 
for Women, incurred in attending prison congresses and other 
satherings outside the limits of the Commonwealth, cannot be 
paid out of an appropriation "for the payment of salaries, etc., 
and for the current expenses of said institution ; " nor can a 
bill of expenses for travelling outside the limits of the Com- 
monwealth in attending conferences, incurred by officials of the 
State Almshouse, State Farm, the Lyman School for Boys, 
State Industrial School for Girls and the State Primary School 
at Monson, be paid out of an appropriation made "for other 
current expenses at said institution." 

The State Board of Health has an appropriation ' ' for the 
general work of the State Board of Health, including all neces- 
sary travelling expenses." The duties of the Board are defined 
in Pub. Sts., c. 80, and the various amendments thereto. 
Section 1 of this chapter provides that ' ' It shall make sanitary 
investigations and inquiries in respect to the cause of disease 
and especially of epidemics, and the source of mortality and the 
eflects of localities, employments, conditions and circumstances 
on the public health ; and shall gather such information in 
respect to those matters as it may deem proper for diffusion 
among the people." 



144 OPINIONS OF THE ATTORNEY-GENERAL. 

By this section the Board is especially granted the power to 
gather such information in respect to those matters as it may 
deem proper. Therefore a bill of expenses in attending outside 
the limits of the Commonwealth a meeting of those interested 
in the subject of health, drainage, etc., is incurred in the exer- 
cise of official duties authorized by statute, and can properly 
be paid from the appropriation. 

You likewise inquire whether " a bill incurred for travelling 
outside the Commonwealth by the Gas and Electric Light Com- 
missioners can l)e paid from an appropriation " for travelling 
and incidental expenses. I cannot answer this (juestion with- 
out knowing for what purpose the travelling was done. The 
mere fact that travelling is without the limits of the Common- 
wealth is immaterial, if done in the exercise of the official duties 
of the commissioners. 



County Commissioners, — Expenses, — Hotel Bill. 

St. 1893, c. 273, does not authorize a county commissioner to charge for the 
expenses of a hotel bill. 

To the I have the honor to acknowledge the communication from 

Governor. ~ 

1894 Your Excellency, dated March 30, requesting an opinion 

-^^" upon the construction of St. 1893, c. 273, relating to the travel- 

ling expenses of county commissioners. 

The chapter in question provides that "there shall be allowed 
and paid to each of the county commissioners of the several 
counties the actual, necessary and proper expenses for trans- 
portation paid by him in the discharge of his duties." You 
inquire whether under the act a county commissioner can 
charge for a hotel l)ill. 

Whatever distinction may be made between the word "travel," 
as used in some similar statutes, and the word "transporta- 
tion," here employed, and whether there is any difference in 
the meaning, it does not seem necessary now to decide. I am 
quite clear, however, that the word "transportation" in this 
statute must l)e taken to have its ordinary and usual significa- 
tion, and that the proper expenses of transportation are the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 145 

expenses of conveyance in going and returning. It cannot 
include expenses incurred after transportation has ceased. 

I am of opinion, therefore, that under the provisions of this 
act a commissioner is not entitled to charge for the expense of 
a hotel bill. 



Governor. 

189-1 
April 4. 



Ancient and Honorable Artillery Company, — Officers, — 
Commission, — Governor. 

The Governor has no authority to commission the officers of the Ancient and 
Honorable Artillery Company. He may at his discretion issue a certifi- 
cate to the effect that he has inducted the officers of the company into 
office in accordance with ancient custom. 

I have the honor to acknowledge the communication of Your To the 
Excellency, dated March 29, asking my opinion upon two i894 
questions submitted by the Adjutant-General, and to reply 
thereto as follows : — 

The questions are : — 

First. — Can the Governor commission, by written commis- 
sion, the oiEcers of the Ancient and Honorable Artillery Com- 
pany ? 

Second. — If not, can he issue a certificate saying that he has 
inducted into office, in accordance with ancient custom, the 
officers of said company? 

The position of the Ancient and Honorable Artillery Com- 
pany, and its relations to the Commonwealth, are in many 
respects unique. It is not a part of "the military forces of 
the State," as that expression is used in the Constitution c. 2, 
§ 1, art. 7, and has no standing as such. The Governor, there- 
fore, is not its commander-in-chief. As a military body, how- 
ever, it has been frequently recognized by the Legislature, and 
granted many privileges. St. 1893, c. 367, concerning the 
volunteer militia, expressly provides in § 161, that nothing done 
in said act ' ' shall be construed as affecting the right of the 
Ancient and Honorable Artillery Company to maintain its 
organization as a military company, according to ancient usage, 
and agreeably to the provisions of its Constitution and by-laws, 
provided the same are not repugnant to the laws of this Com- 



146 OPINIONS OF THE ATTORNEY-GENERAL. 

mon wealth, or do not restrain the lawful parade or exercise of 
the active militia." By § 124 of the same chapter this organi- 
zation is exempt from the general provisions that no l)ody of 
men, other than the regularly organized militia, shall associate 
themselves together as a company for drill or parade with iire- 
arms, etc. By § 153 of the same chapter it is provided that 
the company shall annually furnish rolls of its membership to 
the mayor and aldermen of the city of Boston. The members 
of the company are exempt from jury duty Pub. Sts., c. 170, 
§ 2. By Res. 1859, c. lOG, the thanks of the Legislature 
were extended to the company for escort duty tendered to the 
Legislature. By Res. 1888, c. 77, an appropriation was made 
to enable the company to celebrate its two hundred and fiftieth 
anniversary. 

There are also some usages connected with the company for 
which no legislative authority exists. Such is that part of the 
ceremony of the annual installation of officers, in which the 
Governor receives the insignia of office from the retiring 
officers and bestows them upon their successors. This custom 
has existed from time immemorial, but rests for its authority 
upon usage only. 

But, notwithstanding the recognition which has been ac- 
corded the company by legislation and by usage, the fact 
remains that it has no existence as a part of the State militia. 
Its officers do not derive their authority from the Common- 
wealth. It is clear, therefore, that there is no authority in 
the Governor to issue a commission to such officers. 

As to the second question, whether he may issue a certificate 
saying that he has inducted the officers of said company into 
office in accordance with ancient custom, I can only say that 
it is a proceeding for which there is no legislative sanction, 
and which is not in accordance with ancient usage. As the 
representative of the Commonwealth, the Governor has nothing 
to do with the installation of officers, and his conferring of 
the insignia of office is an act of courtesy merely. It gives the 
officers no additional authority, and is not necessary to the 
validity of their title thereto. Such a certificate, therefore, is not 
an act which is included in the duties of the office of Governor. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 147 

Whether as a further act of courtesy Your Excellency shall 
deem it proper or expedient to sign and issue such a certificate, 
is not a question coming within the province of the Attorney- 
General to give advice upon, further than to say that I see 
nothing unlawful in so doing. 



Union op Towns for Employment of Superintendent op Schools, 

— Dissolution. 

The increase above the limit of two and one-half millions in the valuation of 
one of the towns of a union formed under the provisions of St. 1888, 
c. 431, for the purpose of the employment of a superintendent of schools, 
whether before or after the period of three years, does not of itself dis- 
solve the union. 

Your favor of the 2d inst., asking for my opinion as to the Tothe 
construction of St. 1893, c. 200, § 2, was duly received, and 1894 
I have to reply as follows : — ApnM. 

I understand the facts upon which the inquiry is based to be 
that three towns formed a union under St. 1888, c. 431, for 
the purpose of the employment of a superintendent of schools, 
all being at that time towns whose valuation did not exceed 
two and one-half millions. The union has continued three 
years, and the valuation of one of the towns is now increased 
to an amount in excess of said limit of two and one-half 
millions, no other change having taken place. The question 
submitted to me is, whether, under the provisions of the last 
sentence of said § 2, such increase dissolves the union. The 
clause in question is as follows : " When such a union has been 
efTected it shall not be dissolved because any one of the towns 
shall have increased its valuation so that it exceeds $2,500,000, 
nor because the number of schools shall have increased beyond 
the number of fifty or decreased below the number of twenty- 
five, nor, for any reason, for the period of three years from the 
date of the formation of such union, except by vote of a 
majority of the toAvns constituting the union." 

The exact question is, whether the words "for the period of 
three years from the date of the formation of such union " relate 
to the whole sentence, or to that part of the sentence beginning 



148 OPINIONS OF THE ATTORNEY-GENERAL. 

"nor for any reason," etc. If the former construction is 
adopted, the union referred to has l)een dissolved l)y the in- 
crease of one of the towns beyond the limit. 

I am of opinion, however, that the phrase " for the period of 
three years," etc. , relates only to the last division of the sentence, 
beginning "nor for any reason," etc. ; and that the meaning 
of the sentence is that the union shall not be dissolved because 
any one of the towns has increased its valuation, etc, ; and 
that it shall not be dissolved because the number of schools has 
increased or decreased, etc. ; and that it shall not be dissolved 
for a period of three years for any reason, excepting hy vote 
of a majority of the towns. If the meaning of the Legislature 
had been that a union should not be dissolved for a period of 
three years because one of the towns had increased its valua- 
tion or had increased its number of schools, the phrase "for 
the period of three years," etc., would properly and naturally 
have been inserted after the words "shall not be dissolved," 
etc. The phrase then would have limited the whole sentence. 
In the place where it is inserted, however, it refers only to 
part of the sentence in which it is interpolated. 

The statute purports to provide that a union once formed 
shall not be dissolved : first, because one of the towns has in- 
creased its valuation ; nor, second, because the number of 
schools has increased or diminished ; nor, third, for any reason, 
for a period of three years, excepting by a vote of a majority 
of the towns. 

The history of the act in question confirms this view. As 
originally reported (Senate Doc. No. 126) , the bill provided 
that: "When such a union has been effected, it shall not be 
dissolved because either of the towns shall have increased its 
valuation so that it exceeds $2,500,000, nor because the num- 
ber of schools shall have increased beyond the numl)cr of fifty 
or decreased below the number of twenty-five, nor for any 
reason except l)y vote of a majority of the towns constituting 
the union." 

It being deemed inadvisable, apparently, to impose an un- 
willing membership in a vmion upon a single town for an in- 
definite period, the liill was amended by inserting the phrase 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 149 

"for a period of three years," etc. This phrase was inserted 
not at the beginning of the sentence, where it naturally would 
have been placed if it had been intended to limit the whole 
sentence, but in the third division, relating to the dissolution 
of the union by vote of a majority of the towns. 

It is not a safe or recognized rule of construction to inter- 
pret a statute by considering the views and desires of those 
by whom it was promoted. It is satisfactory, however, to be 
assured that the initiation of the act in question was a petition 
from the inhabitants of one of the towns of the union now in 
question, which asked, in terms, for the enactment of a law by 
which the increase of valuation of a town above the statute 
limitation of two and one-half millions at any time should not 
operate as a dissolution of the union. 

I am of opinion, therefore, that the increase of the valuation 
of one of the towns above the limit of two and one-half mil- 
lions, whether before or after the period of three years, does 
not of itself dissolve the union. 



miesioners 



Savings Banks, — Legal Investments, — Railroad Bonds. 

Bonds executed jointly and severally by two railroad companies and secured 
by a first mortgage on one of the roads, when the mortgaged road, 
although leased to the other, has paid dividends on its entire issue of 
capital stock out of the rentals received from the lease, are legal invest- 
ments for savings banks under the provisions of Pub. Sts., c. 116, § 20, 
cl. 3, as amended by St. 1889, c. 305. 

I have the honor to acknowledge your communication of coimiu 
April 11th, asking my opinion as to whether certain bonds Baukl!"^^ 
therein described are a leo;al investment for savings banks of ^^^^ 

. . ° April 14. 

this Commonwealth, under the provisions of Pub. Sts., c. 116, 

§ 20, cl. 3, and amendments thereof. 

What purports to be a copy of the form of the bond in 
question shows that it is an instrument executed jointly and 
severally by the European & North American Railway and the 
Maine Central Railroad Company. It is said to be secured by 
a mortgage of that part of the railroad of the European & North 
American Railway lying between Bangor and Winn in said 



150 OPINIONS OF THE ATTORNF.Y-GENERAL. 

State of Maine. It is also stated that the European & North 
American Railway has leased its railroad, including the part 
described in said mortoao-e, to the Maine Central Railroad 
Com})any for a term of nine hundred and ninety-nine years. 

These bonds are the several oljligations of each railroad cor- 
poration executing them. They are the several l)onds of the 
European & Xorth American Railway, and are secured by a 
mortgage of its road. They are also the several oljligations 
of the Maine Central Railroad Company. The fact that both 
companies join in executing the bonds does not operate to 
destroy their character as the several obligations of each 
company. 

Pul). Sts., c. 116, § 20, cl, 3, provides that savings banks 
may invest in the "first mortgage bonds of any railroad com- 
pany incorporated under the authority of any of the New 
England States, and whose road is located wholly or in part in 
the same, and which is in possession of and operating its own 
road, and has earned and paid regular dividends for the two 
years next preceding such investment," These bonds do not 
come within this description. While they are the bonds of the 
Maine Central Railroad Company, they are not its first mort- 
gage bonds, for they are not secured by mortgage of any part 
of its railroad. The Maine Central Railroad Company, it is 
true, is the lessee for a term of nine hundred and ninety-nine 
years of the railroad described in the mortgage, but it is not 
the owner of that railroad. It is only lessee, and the lease may 
be avoided, and the possession of the railroad return to the 
owner by the liai)pening of several contingencies, some of 
which are specifically set forth in the lease. A lessee, even for 
a period of nine hundred and ninety-nine years, may not exe- 
cute an indefeasible mortgage of the leased road. On the 
other hand, although they are the first mortgage bonds of the 
European & North American Railway, that corporation is not 
in possession of and operating its own road. 

The clause further provides as follows : " or in the first mort- 
gage bonds guaranteed by any such railroad company (to wit, 
a railroad company which has earned and paid regular divi- 
dends, etc.) of any railroad company so incorporated, whose 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 151 

road is thus located." These bonds are not guaranteed by the 
Maine Central Railroad Company ; technically, therefore, they 
are not within the class of railroads to which this operation of 
the statute has reference. It is to be remarked, however, that, 
although the Maine Central Railroad Company is not a guar- 
antor, technically speaking, it is in fact a guarantor, and more, 
for it is an original obligor upon the bonds. A guarantor may 
have certain defences such as laches, want of notice, etc. 
None of these defences could be set up by an original promisor. 
The obligation of the Maine Central Railroad Company is that 
of a guarantor, but is stronger, for it is open to none of the 
defences which might be set up by a guarantor. Looking, 
therefore, at the spirit of the statute, rather than its language, 
it appears to me quite plain that these bonds are a permissible 
investment by our savings banks. The greater includes the 
less ; and it can scarcely be supposed that the Legislature in- 
tended to exclude a character of investments which contained 
all the elements of security set forth in the statute, with other 
elements of strength added. 

But whether this be so it may not be necessary to decide. 
Upon the facts submitted to me, the bonds in question appear 
to fall within the description of St. 1889, c. 305, which pro- 
vides that savings banks may invest " in the first mortgage 
bonds of any railroad company incorporated under the author- 
ity of any of the New England States, and whose road is lo- 
cated wholly or in part in the same, and has earned and paid 
regular dividends for the two years next preceding such invest- 
ment on all its issues of capital stock, notwithstanding the road 
of such company may be leased to some other railroad com- 
pany." If the European & North American Railway has paid 
dividends on all its issues of capital stock out of the rentals 
received by the lease, such dividends have been earned within 
the meaning of that statute ; and the bonds in question fulfil 
the description of this statute. The fact that by the same 
instrument the Maine Central Railroad Company has become 
bound to pay them, does not as above stated, diminish or 
detract from their validity as the first mortgage bonds of the 
European & North American Railway. 



152 OPINIONS OF THE ATTORNEY-GENERAL. 



Court Sittings. 

If the courts of Middlesex County devote more time to tiieir sittings in Cam- 
bridge tiian In Lowell, the remedy is by application to the court itself or 
to the Legislature. 

J° ^^^ „ I have the honor to acknowledo;e the communication of Your 

Crovernor. o 

1894 Excellency, dated April 13, asking for my opinion upon the 

questions stated in a communication from Charles R. Blaisdell 

enclosed therein. 

So far as I am able to understand the letter of Mr. Blaisdell, 
he asks what relief can be had, first, by reason of the alleged 
fact that much more of the time of the sitting of the courts in 
Middlesex County is given to Cambridge than to Lowell, 
including the probate court ; and, second, for disagreement of 
juries. 

As to the first matter of inquiry, I find, upon examination 
of the statutes, that the same number of sittings for civil busi- 
ness are appointed for Lowell as for Cambridge. Pub. Sts., 
c. 152, § 17. It is further provided that sittings of the court 
may be adjourned from one shire town in the county to another. 
Pub. Sts., c. 153, § 25. It would appear, therefore, that so 
far as the statutes are concerned the sittings of the court are 
fairly proportioned between the two portions of the county. 
If, as is alleged, a disproportionate amount of the business of 
the court is transacted at Cambridge, the remedy of the parties 
interested would seem to be, first, by an application to the 
court itself, which is presumed to see that justice is done in 
the matter of assignments ; and, second, if such course proves 
inefiectual, by application to the Legislature. 

The statutes also provide that sittings of the probate court 
shall be held on the first, second and fourth Tuesdays of every 
month at Cambridge ; and on the third Tuesdays of January, 
March, May, July, September and November at Lowell. This 
being a matter within the jurisdiction of the Legislature, if 
injustice is done under the present law, the remedy of the 
parties aggrieved would seem to be by application to the Legis- 
lature. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL 153 

As to this matter, therefore, it does not seem to be witliin 
the province of the Executive to furnish the desired relief. 

As to the second complaint, that juries do not agree, I know 
of no remedy excepting the improvement of the character of 
jurymen, a subject which I understand is already under con- 
sideration by the Legislature. 



Corporation, — Purpose to register Employees and provide 
Employment, — Insurance. 

A corporation whose purpose is to register employees and provide such as 
register with employment in case they are discharged or suspended, is 
not entitled to be organized under Pub. Sts., c. 106, § 14. Its purpose is 
to do insurance business. 

I am in receipt of your communication of April 16, request- To the com- 

^ ^ I. ' J. missioner of 

ing my opinion as to whether a corporation whose purpose is corporations. 
stated to be " to register employees and provide such as register April 20. 
with employment in case they are discharged or suspended 
from employment " is entitled to be organized under Pub. 
Sts., c. 106, § 14. 

The section referred to reads as follows : — 

' ' For the purpose of carrying on any lawful business not 
mentioned in the seven preceding sections, except buying and 
selling real estate, banking, insurance, and any other business 
the formation of corporations for which is otherwise regulated 
by these statutes, three or more persons may associate them- 
selves, with a capital of not less than one thousand nor more 
than one million dollars." 

The question which arises is, whether the purpose stated 
comes within the definition of the word "insurance," as used 
in that section. 

If the only purpose of the proposed corporation was to con- 
duct an employment bureau, it would be a lawful business, and 
not one included within any of the exceptions set forth in said 
section. If this were the only purpose, it could be stated in 
unmistakable lan2;uao;e. 

But I am of opinion that the statement of the purpose quoted 



154 OPINIONS OF THE ATTORNEY-GENERAL. 

above plainly indicates a purpose to guarantee employment, or 
its equivalent. It does not provide for a register of persons 
seeking employment, but deals only with those already em- 
ployed. It undertakes to provide such employees as register 
with employment. Inasmuch as such a contract might not be 
capable of execution if a situation were not open, the purpose 
therefore must be to provide indemnity for such as fail of 
securing employment under such a contract. That this con- 
struction is correct is confirmed by the fact that, as I am 
informed, such is stated to be the purpose of the proposed 
corporation. 

This is plainly insurance ; and it was with a view of exclud- 
ing from corporate rights in Massachusetts such corporations 
that the exception was made in the statute quoted. The 
statutes relating to the business of insurance carefully limit 
the forms of insurance which are permitted in this Common- 
wealth, and many subjects of insurance are declared by impli- 
cation to be contrary to the policy of our laws. 

Taking the statutes as a whole, they plainly point to a 
purpose on the part of the Legislature to restrain the forma- 
tion of corporations for the purpose of doing insurance business 
to such as are specified in the statutes relating to that subject. 
The purpose declared by this corporation is not so included ; 
and if this corporation were chartered, it would acquire rights 
which the insurance statutes intended to forbid. 



• Chief of District Police, — Attorney-General. 

The Chief of the State District Police has the exclusive right to the advice of 
the Attorney-General in relation to the rights and duties of the State Dis- 
trict Police. ■• 

"To the I have the honor to acknowledge the communication of Your 

Governor. ~ 

1894 Excellency, dated April 16, referring to me certain questions 

— — ■ relating to the rights and duties of the Chief of the State Dis- 

trict Police force in the matter of fire-escapes for buildings, 
under St. 1888, c. 426. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 155 

The Chief of the State District Police force is not an officer 
who has the right to take the opinion of the Attorney-General. 
Bnt under § 12 of said c. 426 it is made the duty of his depart- 
ment to bring proceedings in the Supreme Judicial and Superior 
Courts for the enjoining of persons who use or occupy build- 
ings contrary to the provisions of said act. In such cases, if 
the suit is brought in the Supreme Judicial Court, it is, under 
other statutes, the duty of the Attorney-General to appear in 
behalf of the Commonwealth. The State police department, 
therefore, has the right to my services in the enforcement of 
the provisions of the statutes, to which the questions submitted 
to Your Excellency and referred to me relate. 

This being so, it would be obviously improper for me to give 
advice as to the rights and duties of the Chief of the District 
Police force under said chapter to any one excepting him and 
at his request. It would be especially improper to advise per- 
sons upon such matters who may at any time become or be 
interested in behalf of defendants in suits brought by the State 
police force, and in which I may be called upon to appear. 

I do not doul^t that Your Excellency will upon consideration 
fully agree with me that in the matters referred to the Chief of 
the District Police force has the exclusive right to my services 
and advice ; and that other parties seeking information as to 
rights in such matters must go elsewhere. 



Insurance, — Fraternal Beneficiary Corporations, — Real 

Estate. 

A fraternal beneficiary corporation organized and transacting business under 
St. 1888, c. 429, as amended by St. 1890, c. 341, cannot hold real estate, 
except a limited amount in a building for its use and occupancy as a home 
office in this Commonwealth. 

I am in receipt of your letter of May 4, inquiring whether Totbe 

Insurance 

a fraternal beneficiary corporation organized and transacting commissioner. 
business under St. 1888, c. 429, as amended by St. 1890, May is. 
c. 341, can hold real estate, other than as permitted in § 9, to 



156 OPINIONS OF THE ATTORNEY-GENERAL. 

a limited amount, in a building for use and occupancy l3y the 
corporation. Your letter also states that the moneys proposed 
to be invested in said building did not belong to any of the 
beneficiary funds, but are received from donations, entertain- 
ments and the like sources. 

The statutes referred to in your letter provide in § § 8 and 9 
for the payment of benefits to sick members, for the payment 
of benefits at the end of a fixed period, and for payments to 
beneficiaries of deceased members. A provision is also made 
for a death and reserve fund ; and there are provisions author- 
izing assessments for these purposes. 

The rapid increase of the endowment insurance business un- 
doubtedly led to the more elaborate provisions contained in 
St. 1890, c. 341, specifying the amount of funds which such 
corporations might hold, and the manner of their investment. 
Under this act by amended § 9 the corporation is allowed to 
invest not exceeding twenty per cent, of the emergency fund 
in a building for use and occupancy by the corporation as its 
home office within this Commonwealth. The only business 
contemplated by § 8 is the payment of one of the several speci- 
fied benefits, or of an endowment insurance, so called; and the 
amount of property which the corporation may acquire and 
hold, and the manner of the investment of the same, is care- 
fully specified in said acts. 

The limitations imposed by these acts upon the right of the 
corporation to acquire and hold funds is exclusive of any right 
to said corporation to receive from any other source, or to 
hold any property for any purpose, except as therein expressly 
provided. It follows, therefore, that such corporation may 
not receive money from donations, entertainments and the 
like. This being so, it necessarily follows that property which 
it is not authorized to receive or hold cannot be invested by it 
in real estate. 

This conclusion is made certain by the provision of St. 1893, 
c. 47, that " Any corporation organized as aforesaid which 
limits its membership to the permanent employees of towns and 
cities and which pays only annuities or gratuities contingent 
upon disability or long service, shall not be subject to the 



HOSEA M. KNOWLTON, ATT0RNEY-GENP:RAL. 157 

foreo-oino; limitation as to the amount of funds to be held for 
purposes of its organization, and may accept and hold gifts, 
legacies or other contributions therefor." 

I assume that your inquiry does not relate to the particular 
class of corporations described in this exception ; and I am, 
therefore, of opinion that, with the exception included in the 
provision quoted, corporations organized and transacting busi- 
ness under St. 1888, c. 429, as amended by St. 1890, c. 341, 
cannot hold real estate except in accordance with the provisions 
of § 9 as amended by the last-named act. 



Auditor. 

1894 
June 7. 



Medfield Insane Asylum, — Appropriation. 

St. 1894, c. 391, does not authorize the expenditure during the year 1894 of 
any part of the $200,000 appropriated for the construction of the Med- 
field Insane Asylum by St. 1893, c. 395. 

I have, at your request, examined St. 1894, c. 391, in refer- To the 

Audit" 

ence to the question submitted by me to you, whether that act 1894 
authorizes the immediate expenditure of the $200,000 appro- 
priated by St. 1893, c. 395, for the construction of the Medfield 
Insane Asylum. St. 1893, c. 395, provides that no portion 
of said sum of $200,000 shall be expended during the years 
1893 and 1894. The question submitted I understand to be 
whether St. 1894, c. 391, can be construed as repealing the 
prohibition as to the time of the expenditure of the $200,000. 

In my opinion, the provisions of St. 1893, c. 395, providing 
that no portion of said sum of $200,000 shall be expended 
during the years 1893 and 1894, are not afi'ected by St. 1894, 
c. 391. The last-named act provides only for the method of 
raising the money to be expended for the plan of the asylum. 
It authorizes the issuing of bonds to the amount of $700,000, 
that being the amount authorized to be expended by previous 
legislation. It does not make a new appropriation of $700,000, 
nor change the terms and conditions upon which the money 
already appropriated is to be expended. 



158 OPINIONS OF THE ATTORNEY-GENERAL. 



Insurance, — Mutual Fire Companies, — Premium Notes. 

Mutual Are insurance companies doing business upon the premium note plan 
under authority of St. 1887, c. 214, § 46, may cease such business and 
proceed upon the cash premium plan stated in § 45 of said act ; but in 
so doing they lose their right to continue under the provision of § 46. 

?n°urLce ^ '"^"^ ^^ receipt of your favor of May 21, asking for my 

^iSr'^''°°^' opinion whether a mutual fire insurance company, authorized 

June 7 . to transact business under St. 1887, c. 214, § 46, can avail 

itself of the provisions of § 45 of the same chapter. 

I understand the exact question to be this : under § 46 cer- 
tain insurance companies are authorized to issue policies of 
insurance upon the plan of taking deposit notes for a percent- 
age of the amount insured by its policy, and making a call or 
assessment thereon for the payment of losses and expenses as 
the same are incurred. One of the companies authorized to 
do business under said § 46 desires to abandon that method of 
doing business, and to conduct its business for the future upon 
the plan set forth in § 45 of the same chapter ; under which a 
full mutual premium is provided to be paid in cash upon fire 
policies, with liability to the insured to assessment to an 
amount fixed by the by-laws of the company for the payment 
of such losses and expenses as are not provided for l)y its cash 
fund. 

The provisions of § 46 are permissive, merely. The section 
provides that such fire insurance companies as at the time of 
the enactment of that section were lawfully doing business upon 
the premium note plan ' ' may " continue such system of busi- 
ness. Whether under that section companies having the right 
to conduct business upon that plan would have the right to 
issue l)oth kinds of policies may well be douljted. It would 
be impracticable to carry on business under l^oth sections. If, 
therefore, the question were whether companies authorized to 
do business under the provisions of § 46 could also do business 
under the provisions of § 45, I should feel inclined to say it 
could not be done. 

The policy of the Legislature in enacting § § 45 and 46 was 
obviously to provide that fire insurance should be done upon 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 159 

the cash premium basis as laid down by § 45, but permitting 
companies already doing business upon the premium note plan 
to continue that form of business, if they desired. If, however, 
companies having the permissive right to do business under 
§ 46 desire to abandon that plan of doing business and to l)ring 
themselves within the provisions of § 45, and in line with the 
general policy of legislation with regard to fire insurance com- 
panies, I see no reason why they may not do so. I regard the 
provisions of § 46 as creating a permissive exception only to 
the general policy as enacted in § 45. 

My answer to your question, therefore, is that the companies 
who come within the description of § 46, and who are exercis- 
ing the privilege granted by said section of doing business upon 
the premium note plan, may surrender the privilege granted 
them by § 46 and proceed upon the cash premium plan set 
forth in § 45 ; but that in so doing they lose their rights to 
continue under the provisions of § 46. 



Paupers, — Discharge, — Clothing. 

The trustees of the Danvers Lunatic Hospital cannot charge a town, under 
Pub. Sts., c. 87, § 45, for clothing furnished patients transferred by the 
Board of Lunacy and Charity to another State institution, under the pro- 
visions of Pub. Sts., c. 79, § 9. 

I acknowledge the receipt of your communication of June To the 

, . . 1 /. Trustees of the 

8, in which you request my opinion upon the following Danvers Lima- 

tic O.08pit(li. 

question : — i894 

Can the trustees of the Danvers Lunatic Hospital, under the ""^ ^^' 
provisions of Pub. Sts., c. 87, § 45, legally charge a town or 
city for clothing furnished patients transferred by the Board 
of Lunacy and Charity to another State charitable institution 
or lunatic hospital, under the provisions of Pub. Sts., c. 79, § 9 ? 
Pub. Sts., c. 87, § 45, provides that no pauper shall be 
discharged from a State hospital without suitable clothing ; 
that the trustees may furnish the same at their discretion ; and 
that the cost of said clothing shall be reimbursed to the trustees 



160 OPINIONS OF THE ATTORNEY-GENERAL. 

])V the places of local settlement of city and town paupers, and 
by the Commonwealth in the case of State paupers. No direct 
decision has been given upon this question by our court, but 
in the late case of Gould y. Lawrence, 160 Mass. 232, in re- 
ferring to this provision, the court intimates that such a charge 
as this w^ould ordinarily be made but once in the case of each 
pauper ; and it is a})parent that in the statute the meaning of 
the word ' ' discharged " imports the going out of an inmate to 
resume his status and position in the world at large, and the 
purpose of it is that he may be furnished with suital^le clothing. 
By Pub. Sts., c. 79, § 9, the State Board of Lunacy and 
Charity is given the power to transfer pauper inmates from 
one State charitable institution or lunatic hospital to another, 
or send them to any city or place where they belong ; and this 
power of transfer is limited only by the public interest or the 
necessities of the inmates, and lies wholly within the discretion 
of the Board. It is apparent, therefore, that under its pro- 
visions a case might arise in which a pauper inmate might be 
transferred many times from one lunatic hospital to another, 
and returned in the course of the transfer several times to the 
hospital to which he was originally committed. In this case, 
if the construction was given to the word ' ' discharged " that 
it might apply to the case of a transfer, it is evident that it 
would be within the powers of the trustees of a lunatic hospital 
to charge a city or town, or tlie Commonwealth, with the costs 
of suitable clothing whenever the transfer was made. It does 
not seem that such a construction can reasonably be supposed 
to have been intended by the Legislature ; and we must assume 
that the State Board would not order the transfer of a pauper 
inmate from one State institution to another when his condition 
as to clothing was such as to endanger his life or health. 

In my opinion, your question must be answered in the 
nesrative. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 161 



Contract, — State Printers. 

In a contract covering printing for all the " several departments of the govern- 
ment of the Commonwealth," county courts, or officers of any department 
which have to do only with a portion of the Commonwealth, are not 
included. For the same reasons, insolvency blanks, although furnished 
at the expense of the Commonwealth, are not within the terms of the 
contract. 

I am in receipt of jour letter of June 14, asking my opinion To the 
as to the construction of the contract between the Common- 



wealth and the State printer, a copy of which is submitted with 
your letter. 

The material portions of the contract, so far as they relate to 
the question submitted, are as follows: "The said Common- 
wealth agrees to give to said parties of the second part (the 
State printers) all the printing and other work to be performed 
by the terms of this contract for the several departments of the 
government of the Commonwealth " . . . " it is understood 
and agreed that this contract shall not apply to or include 
envelopes with printing upon them, letter paper with printed 
headings, blank books, or any form or blanks used in the 
various departments of the Commonwealth in which printed 
matter occurs, unless the printing covers one-half or more of 
the entire surface of the sheet." 

The questions stated are as follows : — 

Fi7'st. — Are judges, registers and assistant registers of pro- 
bate and insolvency "departments of the government of the 
Commonwealth " within the meaning of the expression as used 
in said contract, and, therefore, subject to the provisions of 
the clause of said contract first above quoted ? 

The contract submitted with your letter was made under the 
authority of Res. 1892, c. 90. Previous resolves referring 
to the matter of State printing are Res. 1887, c. 16, and Res. 
1882, c. 57. The resolve of 1882 sets forth a form of con- 
tract which appears to be substantially similar to the form of 
contract executed under the resolve of 1892. I am further 
informed that the contract executed under the resolve of 1887 
was substantially in the same form. I am further informed that 
all three of these contracts were with the same printers. 



1894 
June 21. 



162 OPINIONS OF THE ATTORNEY-GENERAL. 

I find upon examination of the statutes that the salaries of 
the judges and registers of probate are paid out of the treasury 
of the Commonwealth. Pub. Sts., c. 158, § 23. The blanks 
used in probate proceedings are provided by the county com- 
missioners, and are, therefore, payal)le out of the county 
treasuries. Pub. Sts., c. 156, § 42. The blanks used in in- 
solvency proceedings are furnished at the expense of the Com- 
monwealth. Pub. Sts., c. 157, § 13. Probate blanks have 
always been paid for by the county. Gen. Sts., c. 117, § 31 ; 
Rev. Sts., c. 83, § 54. Separate courts of insolvency were 
established by St. 1856, c. 284 ; and in that act (§ 23) it was 
provided that blanks used in the business of the court should 
be paid for out of the treasury of the Commonwealth. Pro- 
bate courts and insolvency courts were consolidated by St. 
1858, c. 93 ; but the provisions in regard to the payment for 
blanks have remained unchanged, and have so continued until 
the present time. The reason for charging the expense of 
insolvency to the Commonwealth is probably the fact that the 
fees received in the course of insolvency proceedings are 
rendered by the registers to the treasurer of the Common- 
wealth. Pub. Sts., c. 157, § 138. 

What is the meaning of the expression ' ' departments of the 
government of the Commonwealth," as used in the contract for 
the State printing? This contract is executed under a resolve 
which authorizes the making of a contract for the printing ' ' for 
the several departments of the government of the Common- 
wealth." Substantially similar words have been used in all 
previous resolves authorizing contracts for State printing, ex- 
cepting Res. 1857, c. 86, in which the language was " the State 
printing." See Res. 1849, c. 57 ; Res. 1852, c. 9 ; Res. 1855, 
c. 49; Res. 1856, c. 100; Res. 1857, c. 86; Res. 1866, c. 74; 
Res. 1867, c. 4; and Res. 1877, c. 69. 

I am of opinion that the words ' ' the several departments of 
the government of the Commonwealth," as used in the contract 
referred to, do not include county courts, even though the 
salaries of officers of those courts are paid from the treasury of 
the Commonwealth. It is true that the Constitution of Massa- 
chusetts recognizes the judiciary as one of the " departments'* 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 163 

of the government of the Commonwealth. Part the second of 
the Constitution is entitled " The Frame of Government." 
There are three topics under this title. Chapter I. is the legis- 
lative power, chapter II. the executive power and chapter III. 
the judiciary power ; and under the head of the judiciary power, 
in Art. 4, the judges of probate are specifically referred to. 
And the Bill of Rights provides in Art. 30 that " In the govern- 
ment of this Commonwealth, the legislative department shall 
never exercise the executive and judicial powers," and " that 
the judicial shall never exercise the legislative and executive 
powers." If, therefore, we are to look to the frame of gov- 
ernment set forth in the Constitution for the definition of the 
words ' ' the departments of the government of the Common- 
wealth," the judiciary must be regarded as a part of the gov- 
ernment, including probate courts. 

But I do not think the words are used in this contract as 
they are used in the Constitution. They are words not of law, 
but of contract, and are to be understood in a commercial 
sense ; that is, in the sense in which they are commonly used. 
As so used, the expression " the departments of the govern- 
ment of the Commonwealth " refers exclusively to those branches 
of the government which have to do with the entire Common- 
wealth, and not with a portion only. Such a definition would 
include the Governor, the Secretary, the Treasurer, the Auditor 
and the Attorney-General. It w^ould also include commissions 
having jurisdiction throughout the Commonwealth, appointed 
by the Governor or created by an act of the Legislature, — 
such as the Insurance Commissioner, the Gas and Electric 
Light Commissioners and the Harljor and Land Commissioners. 
These different Ijranches of the government of the Common- 
wealth are usually entitled " departments," such as the execu- 
tive " department," the " department" of the Attorney-General, 
the insurance " department," etc. I think the word " depart- 
ment," as used in the contract, has the same significance ; and, 
therefore, that it does not and is not intended to include 
officers, whether of the judiciary or any other department, 
which have to do with only a portion of the Commonwealth. 

Just how far practice and usage are admissible to throw light 



164 



OPINIONS OF THE ATTORNEY-GENERAL. 



upon the construction of the contract is not entirely clear ; but 
so far as they have any weight they strengthen this view ; for 
I understand that, not only in the previous contracts with the 
ji resent State printers, but in all the contracts under the various 
resolves hereinbefore cited, this construction has been put upon 
similar expressions ; and that it has never been supposed that 
any of the blanks for county courts were included in the con- 
tract with the State printer. 

Second. — Are blanks of the kind annexed to your letter 
included within the terms of the contract in question ? 

Said annexed blank is a form of petition hj a widow for the 
assignment of dower. It is a form used in the probate courts. 
Inasmuch as probate blanks are furnished by the county, as 
hereinbefore stated, it is obvious that they are not within the 
terms of the contract with the State printer ; because the Com- 
monwealth does not furnish them, and has no authority to 
contract for their printing under existing laws. 

I presume, however, that the enclosing of a probate blank 
was an inadvertence, and that your inquiry was intended to 
refer to blanks used in insolvency proceedings. Assuming 
this to be so, I reply that, for the reasons above set forth in 
answer to your first inquiry, I am of opinion that insolvency 
blanks, although furnished at the expense of the Common- 
wealth, are not within the terms of the contract with the State 
printers. 



Insurance, — Nature of Contract, — Guaranteeing Employment. 



To the Insur- 
ance Commis- 
eioner. 
1894 
June 21. 



A certificate issued by a company for a money consideration, wtiereby it agrees 
to employ the holder at a fixed salary for a limited period in case he is 
discharged from employment, is a contract of insurance within the mean- 
ing of St. 1887, c. 214, § 3. 

I am in receipt of your favor of June 13, asking my opinion 
whether the certificate issued by the United States Registration 
Company is insurance within the meaning of that term as de- 
fined by St. 1887, c. 214, § 3. 

The certificate of the United States Registration Company is 
in efiect a contract between the company and the holder thereof, 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 165 

whereby for a money consideration the Registration Company 
agrees to employ the holder of a certificate, at a fixed salary 
per week, for a period not to exceed ten weeks in any one 
year excepting at the option of the company, in case the said 
holder is discharged or suspended from employment. 

In my opinion, this is a contract of insurance under the pro- 
visions of the section above referred to. That section defines 
a contract of insurance to be ' ' an agreement by which one 
party for a consideration promises to pay money or its equiva- 
lent or to do some act of value to the assured upon the 
destrviction or injury of something in wliich the other party has 
an interest." The contract in question is for a consideration. 
It promises to do some act of value to the assured, to wit, 
to furnish him employment for ten weeks at a fixed compen- 
sation. It further promises to furnish this employment upon 
the destruction or injury of sometliing in which the other party 
has an interest, to wit, his prior contract of employment. This 
contract of employment, upon the destruction of or injury to 
which the obligation of the Registration Company arises, may 
be a contract for a fixed time and for fixed wages ; or it may 
be a more ordinary form of contract for an indefinite time, 
either at fixed wages or for a quantum meruit. In either case 
it is a contract in which the certificate holder has an interest ; 
and for the destruction, or, in other words, the cancellation or 
suspension of which he receives his indemnity in the shape of 
employment by the Registration Company. 

I do not agree to the suggestion of the representatives of 
the company, that the words ' ' upon the destruction or injury ' 
of something," are intended to include only material com- 
modities, like houses, ships and the like. Among the author- 
ized subjects of insurance set forth in § 29 of the same chapter 
are enumerated "the fidelity of persons in positions of trust,'* 
and ' ' the liability of employers for injuries to persons in their 
employment." These are schemes of insurance not against 
loss of material things, but against liabilities which may arise 
by reason of the acts of others. If these are included within 
the meaning of the expression already quoted, to wit, "the 
destruction or injury of something" in which the insured has 



166 OPINIONS OF THE ATTORNEY-GENERAL. 

an interest, I see no reason why the cancellation of a contract 
by which the assured is enabled to earn his subsistence may 
not also be included. 

It has been further suggested that the business of this com- 
pany, as set forth in its contract, amounts to nothing more than 
the carrying on of the business of an employment bureau. The 
clear distinction, however, is that an employment agency merely 
undertakes to use its best eflbrts to provide employment, while 
the contract of this company guarantees employment. 



Militia, — Quartermaster-General, — Horses. 

The quartermaster-general has no legal right to furnish horses for batteries 
for any ordered tour of duty. 

To the I have your request for my opinion whether, under the 

General. provisious of St. 1893, c. 367, the quartermaster-general can- 

June 25, fumish dircctly horses for batteries for any ordered tour of 

duty. 

In § 14 the duties and powers of the quartermaster-general 
in the provision, purchase and custody of military stores and 
property are carefully defined, and what he is to furnish is enu- 
merated with great precision. No mention is made of horses 
for the purpose named by you. The power given liim to " pro- 
vide means of transportation " I understand is for a purpose 
quite different from that for which the present requisition re- 
ferred to in your letter has been made. 

I am of the opinion that the quartermaster-general under this 
section has no legal right to furnish horses for the purpose 
named. The provisions of other sections of the act indicate 
that the intention of the Legislature was that horses for the 
purpose named should not be furnished directly by the quar- 
termaster-general, but by the officers and soldiers authorized 
by law to be mounted ; and that a fixed sum should be allowed 
in full for keeping and forage. See §§ 127, 129, 130. 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 167 



Board of Lunacy and Charity, — Jurisdiction, — Suspension op 
State Immigration Laws by Act of Congress regulating 
Immigration. 

The powers and duties of the Board of Lunacy and Charity to regulate immi- 
gration, under Pub. Sts , c. 86, are superseded by the act of Congress, 
approved March 3, 1891, vesting the regulation of immigration in United 
States officials. 

I am in receipt of your letter of June 16, asking my opinion to the Board 

. />i-i-»i iT-»i°'^ Lunacy and 

concerning the " powers and duties oi trie Board under Pub. Charity. 
Sts., c. 86, since the passage of the act of Congress approved juue25. 
August 5, 1882, and the acts supplementary thereto;" and 
" what, if any, power and duty does the Board have in relation 
to the matter of immigration from foreign countries to the ports 
of this Commonwealth." 

It is well settled that the immigration of aliens is within that 
clause of the Constitution of the United States which gives 
Congress power " to regulate commerce with foreign nations ; " 
and that whenever this power is exercised by Congress it is 
exclusive of the jurisdiction of the several States. 

While the States have no power to pass laws limiting or im- 
posing any burdens whatever upon immigration, it is undoubt- 
edly true that, so long as Congress does not exercise the powers 
conferred upon it by the Constitution, the Legislatures of the 
States may, in the exercise of the power of police supervision, 
enact laws for their ow^n benefit regulating foreign immigration, 
so as to exclude from their borders persons liable to become a 
public charge, infected with disease, or criminals. 

Pub. Sts., c. 86, was presumably enacted in the exercise of 
such a power by the Commonwealth ; and at the time of the 
enactment of the law Congress had not undertaken to inter- 
fere with the subject. Indeed, an act of Congress, approved 
August 3, 1882, authorized the Secretary of the Treasury to 
act in co-operation with the appropriate boards of the several 
States in the regulation of immigration into those States. 

Since that time, however, by act of Congress, approved 
March 3, 1891, the whole matter of the regulation of immigra- 
tion has been vested in officers of the United States, with the 



168 OPINIONS OF THE ATTORNEY-GENERAL. 

power or right on the part of such officers to act in co-operation 
with the officers of the several States. This act is similar in 
its provisions to those of Pub. Sts., c. 86, in respect to the 
prohil)ition of the immigration of persons liable to become a 
public charge, or criminals, and of those suffering from con- 
tagious diseases. 

It is well settled that when Congress exercises the powers 
conferred upon it by the Constitution, such exercise of power 
is in its nature exclusive of concurrent legislation by the several 
States. It follows that Pub. Sts., c. 86, are now inoperative, 
and cannot be sustained even in the exercise of the i^olice 
power of a State. That being so, your Board can exercise no 
power or duty in the matter of foreign immigration. 

The foregoing principles, although briefly stated, are elabo- 
rately discussed and settled in many cases in the supreme court 
of the United States, some of which, for convenience, I here- 
with cite : — 

New York v. Miln, 11 Peters, 102. 

Passenger Cases, 7 How. 283. 

Henderson v. Mayor of New York, 92 U. S. 259. 

Cht/ Lung v. Freeman, 92 U. S. 275. 

Railroad Company v. Husen, 95 U. S. 465. 

Bowman v. Chicago Ttailway Company, 125 U. S. 465, 492. 

Leisy V. Hardin, 135 U. S. 100, 108. 

Head Money Cases, 112 U. S. 580. 

Ekiu V. U. 8., 142 U. S. 651. 

Brennan v. Titusville, 153 U. S. 289, 299-306. 



Governor, — Approval of Bill after Prorogation of Legis- 
lature. 

The Governor, after the Legislature is prorogued, may sign bills that have 
been presented to him within five days before prorogation. 

To the In response to the inquiry of Your Excellency whether the 

1894 Governor has the power under the Constitution to sign a bill 

after the Legislature is prorogued, presented to him within five 
days before the prorogation, I have the honor to reply : — 



June 30. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 169 

The question has not been passed upon in this State, although 
I cannot learn upon inquiry that any Governor has ever signed 
a bill after the Legislature adjourned. 

The question has been brought before the courts, however, 
in other States. 

In Foivler v. Peirce^ 2 Cal. 165, where the Constitution 
provided that " If a bill shall not be returned by the Governor 
within ten days after it shall have been presented to him, Sun- 
days excepted, the same shall be a law in like manner as if he 
had signed it, unless the Legislature by adjournment prevents 
such return," the court held that the Governor had no power 
to sign a bill after the adjournment of the Legislature. The 
reason for the opinion is stated to be (p. 172) that "The 
Executive is, by the Constitution, a component part of the law- 
making power. In approving a law, he is not supposed to act 
in the capacity of the executive magistrate of the State, whose 
duty it is' to see that the laws are properly executed, but as a 
part of the legislative branch of the government. This power 
is a unit, though distributed ; and the parts can only act in 
unison. Whenever a part ceases to act, the whole becomes 
inoperative. The executive act owes its validity to the exist- 
ence of the legislative body. Upon the adjournment of that 
body, the power ceases, and all acts of a legislative nature are 
void." 

I have found no other case which sustains this view. 

On the contrary, in the case of the People v. Bowen, 21 
N. Y. 517, upon a provision of the Constitution substantially 
similar to that of California above cited, the court held, with 
one judge dissenting, that the Governor had the right to sign 
bills after the Legislature had adjourned. The court says : " If 
he approves, the concurrence of the whole law-making power 
is secured ; precisely as though the Legislature was in session. 
The bill has received the concurrence of all the functionaries 
which the Constitution requires should unite in enacting a 
perfect law." 

In Louisiana, in the case of Attorney-General v. Pagan , 22 
La. 545, in which State the Constitution made provision that 
when the Legislature by adjournment prevented the return of 



170 OPINIONS OF THP: ATTORNEY-GENERAL. 

the bill, the governor should return the bill on the first day of 
the next meeting of the General Assembly, or it should ])e a 
law, the court held that the Governor could sign the bill after 
the adjournment of the Legislature. The same conclusion was 
reached in Solomon v. Commissioners^ 41 Ga, 157. And in 
Seven Hickory v. EUory, 103 U. S. 423, a case decided in 
1880, — in which the opinion was delivered by Chief Justice 
Waite, — the court held that, under the Constitution of Illinois, 
the provisions of which were in many respects similar to those 
of Louisiana, the Governor might sign a bill after the Legis- 
lature had adjourned. The court says : " After a bill has been 
signed, the Legislature has nothing more to do with it.'''' 

I think it may be fairly said that the weight of authority is 
in favor of the proposition. 

It appears to me, also, that the reasons stated by the courts 
in favor of the proposition, as above briefly summarized, are 
the more cogent. The Governor is undoubtedly a part of the 
legislative department of the government, in that his signature 
is necessary to the enactment of a law. But the affixing of his 
signature is an act which is independent of the action of the 
Legislature, — an act over wliich that l)ody has no control, 
and which he does under his constitutional power as Governor. 
It does not follow that he can only perform that constitutional 
act before he has prorogued the Legislature. If he disapproves, 
the provisions as to co-ordinate action are minute and partic- 
ular ; but his approval is an independent act. 

An inspection of the language of the Constitution, Part II., 
c. I., § I., Art. II., in connection ^v^th the articles of amend- 
ment. Art. I., confirms this view. No bill shall become a law 
< ' until it shall have been laid liefore the Governor for his revisal ; 
and if he, upon such revision, approve thereof, he shall signify 
his approbation by signing." Then follow provisions for the 
return of the bill by him in case of disapproval, with the addi- 
tional provision in the original instrument that if he does not 
return \\iQ bill within five days the same shall have the force of 
a law. 

Transposing the words of the amendment, it provides sub- 
stantially that a bill or resolve shall not become a law if it shall 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 171 

be objected to and not approved by the Governor, and if the 
General Court shall adjourn within five days after the same has 
been laid l^efore him for his approbation. In other words, the 
amendment provides substantially that a bill or resolve shall 
not become a law if the Legislature adjourns within five days 
after its presentation to the Governor, in case he objects to it 
and does not approve it. The amendment does not cover, and 
has no reference to a case where the Governor does not object 
to the l)ill, but on the contrary, approves it. The provisions 
relate wholly to the fiiilure of the ])ill to become a law 
in case of his disapproval. It follows that it was not intended 
to limit his right of approval l)y the prorogation of the Leg- 
islature. 

I am aware that this view raises the very important question 
within what time the Governor may approve a bill passed within 
the five days before prorogation. In some of the cases above 
cited, it is uro;ed that to give him the riijht to sign bills after 
adjournment would put it within his power to hold them indefi- 
nitely during his term of office. In the New York case, how- 
ever, it is held that hy implication his signature must be afiixed 
within the time provided for his disapproval ; and this seems to 
be reasonable. Upon the whole, therefore, I am of the opinion 
that the Governor may sign l)ills after the Legislature has 
adjourned that have been presented to him within five days 
before that time. 

It is proper, however, to say to Your Excellency that the 
authorities are not unanimous in support of this doctrine ; that 
the usage in this Commonwealth, so far as there is a usage, is 
otherwise ; and that to delay action until after prorogation upon 
a bill which Your Excellency proposes to sign may involve 
serious, and to some extent, doubtful, questions of law. 



July 18. 



172 OPINIONS OF THE ATTORNEY-GENERAL. 



Governor, — Attempt of Legislature to impose Duties not 

prescribed by constitution, corporation, constitutional 

Law. 

A statute provided that the directors of a newly incorporated railway, before 
constructing the road, should apply to the Governor and Council for a 
certificate that public convenience required the construction ; and that, in 
case such certificate was refused, the act of incorporation was to become 
A'oid. Such a statute is unconstitutional. 

To the In response to the verbal request of Your Excellency as to 

Governor. '^ ^ "^ 

1894 the rights and duties of the Governor under St. 1894, c. 550, 

§ 18, I have the honor to reply as follows : — 

The act in question is an act to incorporate the Boston & 
Lowell Bicycle Railway. By the first section of the act the 
persons therein named are made a corporation under the above 
name, "to construct and operate an elevated bicycle railway 
for the carriage of passengers," etc., between and through the 
cities therein named. Section 18 of the same act provides that 
"within sixty days after the passage of this act, the directors 
shall apply ... to the Governor and Council for a certificate 
that public convenience and necessity require the construction 
of said railway. If a certificate is granted by . . . the Gov- 
ernor and Council, proceedings may be continued as herein 
provided. If a certificate is refused, no further proceedings 
shall be had, and this act shall be null and void." 

This section makes it the duty of the executive department 
to pass upon the question of the ' ' public convenience and 
necessity" of the proposed railway. It further provides that 
in case of an adverse decision upon this question the act shall 
become null and void. The question submitted to me is 
whether this duty can be imposed upon the Executive by the 



Legislature. 

I am clearly of the opinion that it is not within the consti- 
tutional power of the Legislature to impose such a duty upon 
the executive department of the government. I am led to this 
conclusion upon various considerations. 

1 . The Governor is ' ' the supreme executive magistrate of 
the Commonwealth." He is independent of the Legislature. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 173 

His rights and duties are prescribed solely by the Constitution. 
No duties can be imposed upon him hy the Legislature or by 
any other authority, other than those set forth by the terms of 
that instrument. It is needless to say that the duties required 
by § 18 arc not such as are required by any of the provisions 
of the Constitution prescribing his duties. 

2. Under the section in question the Governor is called 
upon to pass upon the question of the expediency of the charter, 
and in effect to nullify the act by his adverse decision upon 
that subject. In other words, a veto power is given to him 
in addition to the carefully guarded provisions relating to his 
right of veto in the Constitution. He is a constituent part 
of the Legislature, in so far as he has the right under certain 
conditions and within certain limitations, of revising the bills 
passed by the Legislature, and of signifying his approval by 
his signature, or his disapproval by returning the same without 
his signature to the Legislature. The terms of the limitations 
of this power of revision are necessarily exclusive of all other 
interferences with, or revision of, legislative acts. The Legis- 
lature cannot give him the right to revise the law in the manner 
provided in this section, and to declare it null and void as 
therein provided, for the reason that it provides for a method 
of doing so not known to the Constitution, and not included 
within the veto powers of the Governor as therein expressed. 

3. The question submitted to the Governor and Council 
under said section is a legislative question. Without attempt- 
ing to determine the question how far the Legislature may 
delegate its legislative power hy provisions that the acts passed 
by it shall become a law upon their approval by other tribunals, 
like towns, private corporations and the like, it is sufficient for 
the purpose of the exact inquiry submitted to me to refer to 
explicit provisions of the Constitution of Massachusetts, which 
absolutely separate the legislative from the executive depart- 
ment ; excepting, of course, so far as the Executive has legis- 
lative powers under the constitutional provisions requiring his 
signature to bills passed by the Legislature. To attempt to 
confer upon the Governor the power or duty of passing upon 
the questions which are properly for the consideration of the 



174 OPINIONS OF THE ATTORNEY-GENERAL. 

Legislature, as is attempted by this section, is a clear invasion 
of the provision of the Bill of Rights, which provides that 
" the Executive shall never exercise the legislative and judicial 
powers, or either of them." Bill of Eights, Art. 30 ; Case of 
Supervisors, 114 Mass. 247. 

The foregoing considerations sufficiently dispose of the prop- 
osition that the Legislature could lawfully impose upon Your 
Excellency any duty of determining, in the manner provided 
in the section referred to, whether the act should be in force or 
not. I have not attempted to consider whether this section, 
so far as it attempts to impose a duty upon the executive 
department, renders the act, as a whole, unconstitutional or 
not. It is sufficient at present to say that there can be no 
doubt that, in so far as it attempts to impose duties of revision 
upon the executive department, it is in violation of the Con- 
stitution, and in so far is void. 



Governor 

1894 
July 18. 



Deputy Fire Marshal, — Appointmekt. 

Under St. 1894, c. 444, § 1, the power of designating the Deputy Fire Marshal 
is incidental to the power of appointment vested in the Governor; and 
the phrase, "upon the recommendation of the Fire Marshal," must be 
interpreted in reference to the general expediency of an appointment. 

oovMnor Replying to your verbal request for my opinion as to the 

construction of St. 1894, c. 444, § 1, I have the honor to 
reply as follows : — 

The words of the statute as to which the inquiry is directed 
are as follows: "The Governor and Council may, upon the 
recommendation of the Fire Marshal, appoint a Deputy Mar- 
shal to assist him in his duties, and such deputy may in 
like manner be removed." As I understand the question of 
Your Excellency, it is this : does the ' ' recommendation of the 
Fire Marshal " mean a recommendation that an appointment 
be made, or a recommendation of a person for appointment? 

The words of the statute are not technically accurate. Strictly 
speaking, there is no such thing known to our laws as an ap- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 175 

pointment by the "Governor and Council." Inasmuch, how- 
ever, as in the first part of the section it is provided that the 
Fire Marshal is to be appointed by "the Governor, with the 
advice and consent of the Council," it is to be presumed, I 
apprehend, that the briefer words "the Governor and Council" 
in the latter part of the section are intended to have the same 
significance, and to authorize an appointment by the Governor 
by and with the consent of the Council. 

I have been unable to find any other statute containing the 
same form of language. The interpretation of this statute, 
therefore, must be determined on general principles, and by 
comparison, so far as the same is useful, with other statutes 
relating to the appointment of heads of departments and sub- 
ordinates in the same department. 

On general principles, it may be said that the power of ap- 
pointment necessarily imports the power of designation. It is 
of the essence of the exercise of the privilege of appointment 
that the appointing power shall have the right of selection of 
the person to be appointed. It is not to be presumed, there- 
fore, that the Legislature intended to abridge the scope of the 
authority of the Executive in making appointments, unless 
such limitation is expressed in unambiguous language. A 
power of appointment without the right to select and desig- 
nate the person to be appointed is an anomaly. It is in no 
proper sense of the term a power of appointment. It is a 
limitation of the functions of the Executive which is to be found 
in no other law. 

There are statutes, however, in which the power of appoint- 
ment is expressly given to the head of the department, and the 
duties of the Executive are merely those of approval of the ap- 
pointment so made. St. 1887, c. 214, § 5, provides that the 
Insurance Commissioner ' ' may, with the approval of the Gov- 
ernor and Council, appoint ... a Deputy Commissioner." 
In this statute the power of appointment is clearly conferred 
upon the Commissioner, and the Governor and Council have 
the power of approval only. But in the statute under consid- 
eration the Executive is vested with the power of appointment, 
and he can effectually exercise this power only when he has 



176 OPINIONS OF THE ATTORNEY-GENERAL. 

the right of selection. If it had been intended by the Legis- 
lature to confer upon the Executive the power of approval only 
of a person designated hy the Fire Marshal, it is to be pre- 
sumed that apt language for that purpose would have been 
used, as in the provision above quoted for the appointment of 
a Deputy Insurance Commissioner. 

On the other hand, it well may ])e that the question of the 
expediency of the appointment of a Deputy Fire Marshal is one 
that can be best determined by the Fire Marshal, in consequence 
of his more intimate acquaintance with the extent of the work 
of his department. 

It may be suggested, however, that the efficiency of the de- 
partment would be promoted if the Marshal were to have the 
selection of his subordinates, for the performance of whose 
duties he is responsible, and that the Legislature may be pre- 
sumed to have had that consideration in mind in enacting the 
section. But an examination of the provisions of the statute 
do not bear out this suggestion. The duties of the Deputy 
Fire Marshal, as specified in the act, are not subordinate duties 
in the same sense as are those of clerks and employees. The 
Deputy Fire Marshal is, for all practical purposes, an addi- 
tional Fire Marshal. He has tlie same powers of summoning 
witnesses and of inquiry and investigation as the Fire Marshal 
himself. It is true that the Deputy Fire Marshal as to the 
assignment of his work is necessarily under the direction of 
the head of the department, and in that respect is a subordinate 
officer ; but in the performance of the work assigned to him he 
acts upon his own responsibility and with the same judicial 
powers as the Marshal himself. 

The act seems to contemplate the possibility that the duties 
of the Fire Marshal may be so onerous as to render it necessary 
to divide his work. When he finds it so, the act provides that 
he may recommend to the Executive that a Deputy Marshal 
should be appointed ; and thereupon the Governor, in his dis- 
cretion, may make an appointment. The same considerations 
wdiich render the Executive interested in the efficiency of the 
Marshal apply to the work of the Deputy Marshal. The latter 
officer is required to act in the matters assigned to him upon 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 177 

the same lines and mth the same powers as the Marshal him- 
self. 

On the contrary, as to officers whose duties are strictly 
subordinate, like clerks and other employees, for whom the 
Fire Marshal is and should be responsible, the act provides in 
§ 7 that such officers shall be appointed by the Fire Marshal 
himself. 

Upon the whole, therefore, I am clearly of the opinion that 
the expression ' ' upon the recommendation of the Fire Marshal " 
is intended to have reference to the question of the expediency 
or necessity of an appointment of an assistant, and that the 
Legislature did not intend, while employing language which 
purports to give the Governor the power of appointment, to 
reduce that power in effect to a mere right of approval or dis- 
approval of the person appointed by the Marshal, but did in- 
tend to give to the Governor the right of selection as incidental 
to the right of appointment. 

It is proper to say, however, that the whole matter of ap- 
pointment of a deputy is discretionary with Your Excellency ; 
and to the end of securing greater harmony and efficiency in 
the work of the office, the Governor may in his discretion re- 
quire the Fire Marshal to make suggestions as to the person 
to be appointed. 

Surveyor-General of Lumber, — Duties. 

St. 1890, c. 159, § 3, does not require a measurement of lumber to be made by 
the surveyor-general unless such a measurement is requested by one of 
the parties to the sale. The surveyor-general can establish other grades 
of lumber not included in the statute and not in conflict with its terms. 



Governor. 

1894 
July 25. 



Keplying to the questions contained in a letter to Your Ex- to the 
oellency from John W. Wiggin, surveyor-general of lumber, 1894 
submitted to me June 21,1 have the honor to say : — 

The first question contained in the letter is as follows : '* Does 
it not require in § 3 of the law that all lumber that is to be sur- 
Teyed for any purpose of getting grade or measurement for 
settlement of a sale between purchaser and seller shall be sur- 
veyed under the authority of this office ? " 



178 OPINIONS OF THE ATTORNEY-GENERAL. 

As originally enacted (St. 1859, c. 224, § 2), it was pro- 
vided that all lumber brou2:lit into the district of Boston for 
sale should be surveyed by the surveyor-general. By St. 1878, 
c. 65, § 2, this law was amended so that the survey of lumber 
by the surveyor-general became optional. 

The law was again amended by St. 1890, c. 159, and the 
effect of this amendment is the substance of inquiry now under 
consideration. The exact change made was in striking out the 
words *' he shall, by himself or his deputies, survey and meas- 
ure all lumber brought into said district for sale, when a re- 
quest therefor is made by either the purchaser or the seller," 
and in substituting in the place thereof the following : ' ' All 
lumber brought into said district for sale, a survey or measure- 
ment of which is required by either seller or purchaser, shall 
be surveyed or measured by him or his deputies." 

It is probable that the intention of the Legislature in so 
amending the law was to provide that all lumber, measurement 
of which is needed in order to effect a sale, must be surveyed 
by the surveyor-general or his deputies. I can conceive of no 
other purpose of the amendment. I understand, however, that, 
acting under advice, dealers in lumber do not so construe the 
statute, and continue as before in many instances to do their 
own measuring without calling upon the surveyor-general, 
thereby largely reducing the emoluments of his office. This 
practice, if the law will permit him, he desires to stop. 

It must be borne in mind, however that the statute is penal 
in its nature, and must be construed strictly. It is a cardinal 
principle in the construction of penal statutes that a criminal 
offence cannot thereby be created except by the use of plain 
and unambiguous language. 

Notwithstanding the apparent intent of the Legislature, it 
seems to me the language is not only not ambiguous, but that 
its plain intent is to leave the question of whether the services 
of the surveyor-general or his deputies shall be invoked still 
optional with the parties. I presume the Legislature intended 
the language "measurement of which is required by either 
seller or purchaser " to be equivalent to the words ' ' measure- 
ment of which is necessary" in order to effect a sale. That 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 179 

is, if in order to make a sale it is necessary to measure the 
lumber, then the measuring must be done by the surveyor- 
general. Such might be the meaning of the words if the 
clause "by either seller or purchaser" were omitted, mak- 
ing the statute read "measurement of which is required." 
Though even then the language would be somewhat ambig- 
uous, as the word "required" may import either a request 
or a necessity. 

But the expression cannot be construed without giving some 
force to the words "by either seller or purchaser." I cannot 
conceive of a case where measurement is necessary to elFect a sale 
as to one of the parties to the transaction and not necessary to 
the other. If it is necessary to the buyer, it is also necessary 
to the seller. These words, therefore, "by either seller or 
purchaser," cannot be construed sensibly without giving to the 
parties therein described the option of having it measured or 
not by the official surveyor, as either of them may choose. 

The plain meaning of the statute as it now stands, therefore, 
is that in case of a sale of lumber by measurement either party 
may call upon the surveyor-general or his deputies for measure- 
ment. If either party so requires his services, he shall survey 
it and receive his fees. If neither party invokes his services, 
then he has no jurisdiction. 

I am not unmindful of the suggestion which may be made, 
that this construction leaves the law as it was before the statute 
of 1890; and that no essential change was made by c. 159 of 
that year so far as this part of the law is concerned. If it were 
a remedial statute, it might be imported into its significance by 
the intent of the Legislature ; but a penal statute cannot be con- 
strued otherwise than by its own terms. 

My attention has lieen called to the last section of the law, 
which provides that ' ' Whoever performs without authority any 
of the duties of surveyor of lumber shall forfeit not less than 
fifty nor more than two hundred dollars." This section has not 
been changed by the amendment discussed, and was a part of 
the law when measurement of lumber was clearly optional on 
the part of dealers and purchasers. It cannot, therefore, add 
to or modify the meaning of the section under discussion. 



180 OPINIONS OF THE ATTORNEY-GENERAL. 

On the whole, therefore, my answer to the question submitted 
by the surveyor-general is that the section he refers to does not 
require a measurement by the surveyor-general or his deputies, 
unless such measurement is requested by one of the parties to 
the sale of the lumber. 

The foregoing consideration disposes of the second and third 
questions in his letter ; to wit, whether a man in the employ of 
a dealer or consumer can measure or mark its contents, and 
render account thereof, for purposes of sale or purchase, 
without making himself amenable to the law and liable to the 
penalty imposed. He would if he assumed to act as an official 
measurer ; otherwise, not. 

The fourth question submitted hy the surveyor-general is not 
clearly stated ; l)ut I understand from oral conversation with 
the surveyor-general that it is intended to inq^uire whether the 
surveyor-general has the right to establish grades of lumber 
other than which are provided for in Pub. Sts., c. 63, § 16, 
referring to the duties of the surveyor-general, in case the 
grades established in that statute have become obsolete. 

In answer to this question, I should say that, while the 
surveyor-general cannot change the existing law as to grades 
of lumber, he can introduce and establish other grades not 
included in the statute and not in conflict with its terms. 



Pilotage Fees. 



A pilot who offers his services to a vessel bound into a port where pilotage is 
not compulsory has no claim for services when they are declined in favor 
of a person forbidden under a penalty to act as pilot, or when another 
authorized pilot subsequently offering himself is secured. 

To the Pilot I am in receipt of your letter requesting my opinion as to 

Commissioners. i »/ x o ./ j. 

1894 whether or not it is the duty of the Pilot Commissioners, under 

^^ ' Pub. Sts., c. 70, § 21, to approve pilotage fees in two cases 
referred to in your communication. The facts as stated by 
you in the two cases, while different in other respects, are the 
same in this, — that in neither case was the pilotage compul- 
sory under the provisions of law. 



HOSEA M. KNOWLTON, ATT0RNEY-GENP:RAL. 181 

In my opinion, in neither case has the pilot a legal claim for 
compensation for the services which in each case he ofiered to 
render. The fact that in the first case mentioned by you some 
person may be liable to a penalty under St. 1884, c. 252, § 6, 
in no way affects the question of the legality of the claim of the 
pilot for compensation for the services offered to be rendered 
by him. In the second case, the pilotage not being compul- 
sory, the provisions of Pub. Sts., c. 70, § 26, have no applica- 
tion to the claim of the pilot who has offered his services. 

In answering your inquiries I have assumed that the pro- 
visions of § 21 above referred to make it the duty of the Pilot 
Commissioners to consider not alone the question of the cor- 
rectness in amount of the pilotage fees, but also the question 
of the legality of any claim a pilot may make for fees. 



Foreign Corporation, — Attorney for accepting Service. 

A foreign corporation, organized for purposes many of which are lawful 
under the laws of this Commonwealth, may, under St. 1884, c. 330, ap- 
point the Commissioner of Corporations its attorney for accepting service 
of process. 

Your letter of August 4 raises some interesting questions. TotheCom- 

^ , , missioner of 

Understanding from oral conversation with you that you are corporations. 
only desirous of such interpretation of the law as may assist August 25. 
you to the performance of your duties, it seems to be unneces- 
sary at present to pass finally upon the questions raised. 
I am informed that the law was drawn primarily with refer- 
ence to a class of corporations that do not come within 
your jurisdiction. The only particular in respect to which it 
affects the performance of your duties, at least so far as con- 
cerns the questions submitted by you, is the accepting of the 
appointment of attorney for foreign corporations under the 
provisions of St. 1884, c. 330. Under St. 1894, c. 381, it 
is your duty to refuse to accept appointment as attorney for a 
corporation doing ' ' business in this Commonwealth the trans- 
action of which by domestic corporations is not then permitted 
by the laws of the Commonwealth." 



182 OPINIONS OF THE ATTORNEY-GENERAL. 

So far as it concerns your duty, the law seems to look only 
to the carrying on of unlawful business, and not principally to 
the purposes for which the business is formed. 

Inasmuch as no l3rewing company has asked you to accept 
appointment as attorney, there seems to be no occasion to 
answer the first question. 

Unless you have information that the corporation with refer- 
ence to which the second inquiry is put is engaged in carrying 
on business "the transaction of which by domestic corpora- 
tions " is forbidden, there is no reason why you should refuse 
to accept appointment as its attorney. Many of the purposes 
of its organization are lawful, if not all ; and it certainly has a 
right to carry on such portions of its business as are permitted 
by the laws of this Commonwealth. 



State Industrial School, — State Reform School, — Children, 
— Transfer, — State Primary School, — Board of Lunacy 
AND Charity. 



To the 
Governor. 

1894 
August 25. 



An inmate of the State Industrial or Reform Scliool transferred under Pub. 
Sts., c. 89, § 7, to the State Primary School becomes a member of the 
latter school, and subject to all the laws relating to its scholars. The 
power of discharge of children so transferred lies in the State Board of 
Lunacy and Charity. 

I have the honor to acknowledge the receipt of your com- 
munication enclosing a letter from the trustees of the State 
Primary and Reformatory Schools, in which my opinion is 
asked upon the question, "Whether the transfer of inmates 
from the Industrial School and Reformatory School to the 
Primary School, as provided in Pub. Sts., c. 89, § 7, discharges 
said inmates from the custody of said schools and transfers said 
custody to the State Board of Lunacy and Charity." 
The statute referred to in the inquiry is as follows : — 
" The trustees may also transfer inmates from the Industrial 
School and Reform School to the Primary School. When such 
transfers are made, the mittimus upon which the person was 
committed shall accompany the person transferred ; and such 



HOSEA M. KNOWLTON, ATTORNF.Y-GENERAL. 183 

person shall be held upon the mittimus until the term of sen- 
tence has expired, unless sooner discharged or remanded. On 
application of any three of the trustees, the State Board of 
Health, Lunacy and Charity may return any l)oy so trans- 
ferred, with the mittimus, to the Reform School, there to be 
held as if no such transfer had been made." 

Upon examination of the numerous and in some respects 
not wholly consistent provisions of the statutes relating to 
the duties of the trustees and of the State Board with relation 
to the State Primary School, I am led to the conclusion that 
when an inmate of the Industrial or Reform School has been 
transferred to the State Primary School, as provided in the 
law referred to, the child so transferred becomes a member of 
the Stat€ Primary School to all intents and purposes, and as 
such is subject to all the provisions of law with relation to 
scholars in the State Primary School. In other words, the 
status of a child so transferred is the same as the status of all 
the other scholars in the State Primary School. 

It seems to be unnecessary at this time to attempt to define 
or to distinguish the respective duties of the trustees and of 
the State Board with reference to the State Primary School. 
In general, however, it may be said that the State Board is to 
have general supervision over the State Primary School (Pub. 
Sts., c. 79, § 2) ; also the duty of visitation of the school 
(Pub. Sts., c. 79, § 5). It also "shall have the power of 
admission and discharge." Pub. Sts., c. 79, § 11. 

On the other hand, the trustees are charged with the govern- 
ment of the school. Pub. Sts., c. 89, §§ 1 and 3. The trustees 
may also place inmates of the Primary School in charge of suit- 
able persons; but, even in such case, "the power of visitation 
and final discharge" remains with the Board. Pub. Sts., c. 
89, § 6. 

It has been suggested that the inquiry submitted is intended 
to relate principally to the question of who has the right of 
discharge of children so transferred to the Primary School. 
I see no reason to doubt that the right of discharge is with the 
State Board, as above stated. The power of admission and 
discharge is expressly vested in the State Board. Pub. Sts., 



184 OPINIONS OF THE ATTORNEY-GENERAL. 

c. 79, § 11. This provision is in the chapter of the Public 
Statutes which defines the duties and powers of the State 
Board. It must be taken to be broad enough to inchide all 
the inmates of the school, however admitted. The fact that 
the mittimus accompanies the child transferred does not change 
its status, so far as the power of discharge by the State Board 
is concerned. So long as the child is in the State Reform or 
State Industrial School, he may be discharged by the trustees 
under the authority given them in relation to inmates of those 
schools. When he is transferred to the State Primary School 
he is subject to be discharged from that institution like any 
other pupil in the school, upon the order of the State Board, 
which has the exclusive right of discharge from that school. 

The section under consideration is almost identical with the 
provisions of Pub. Sts., c. 89, § 47, relating to the transfer of 
girls from the Industrial School to the State Reformatory. In 
case of such transfer it is provided in that section that the girl 
is to be held upon the mittimus in the Reformatory Prison 
*' until the term of sentence has expired, unless sooner dis- 
charged." It will scarcely be disputed that a girl so trans- 
ferred and held in the Reformatory Prison may be discharged 
only as other inmates of the reformatory are discharged, — to 
wit, by the authority of the Commissioners of Prisons. 

Upon the whole, therefore, I am clearly of the opinion that 
the power of discharge of children transferred to the State 
Primary School from the State Industrial School or Reforma- 
tory School is in the State Board. 



Ballot Laws, — Registrars of Voters, — Sessions. 

No session of registrars for the purpose of registering voters can lawfully be 
held after the Saturday but one before election day. 

secreta ^ liavc the houor to acknowledge your favor of October 6, 

1894 relating to the duties of registrars of voters under St. 1894, 

Octobers. 

c. 2/1, § 2. 

Inasmuch as the question stated in your letter is one which 
may come before the Ballot Law Commission, of which both 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 185 

you and I are members, it would not be proper to pass finally 
upon the question sul)mitted at this time. 

However, as I am told that there is a general inquiry on the 
subject, and as it is desirable to secure uniformity and regu- 
larity of action, I may, perhaps, properly say that it is a well- 
recognized principle of law that a later statute, inconsistent 
in its terms with a former statute, must be taken to repeal the 
former statute, although such repeal is not expressed in terms. 

Applying this principle to the case submitted, it would seem 
to be plain that, although St. 1893, c. 417, § 38, provided for 
a meeting of the registrars on the Wednesday next preceding 
the annual State election, yet, inasmuch as St. 1894, c. 271, 
§ 2, has explicitly provided that registration shall cease the 
Saturday but one before election day, no session of registrars 
for the purpose of registering voters can now be lawfully held 
after the last-named date, to wit, the Saturday but one before 
election day; and that, so far as St. 1893, c. 417, § 38, pro- 
vides for sessions for the purpose of registering after that date, 
its provisions have become inoperative. 



Corporation, — Organization without Limits of Commonwealth. 

A business corporation, under Pub. Sts., c. 106, cannot be legally organized 
without the limits of the Commonwealth. 

I have the honor to acknowdedge your letter of the 24th to the 
ultimo, making the following inquiry: "Can a business cor- of corporations. 
poration, under Pub. Sts., c. 106, be legally organized outside November i3. 
the limits of the Commonwealth ? " 

Corporate powers are the creation of the sovereign. Its 
charter invests those to whom it is granted with the right to 
act, not as natural persons, but in a corporate capacity. But, 
inasmuch as the charter is inoperative beyond the jurisdiction 
of the State, the powers granted by it do not accompany the 
persons holding it beyond its jurisdiction. It is well settled 
that a corporation whose charter has been granted by one State 
cannot hold meetings, pass votes or in any way exercise its 
corporate functions in another State. It has no legal exist- 



18G OPINIONS OF THE ATTORNF.Y-GENERAL. 

encc outside the jurisdiction of its sovereign. Miller v. Eioer, 
27 Maine, 509 ; Freeman v. Machias Water Power Oom- 
pany, 38 Maine, 343 ; Franco-Texan Land Company v. 
Laigle, 59 Tex. 339 ; Ormshy v. Vermont Copper Mining 
Company, 56 N. Y. 623. 

It is to be observed that this principle applies only to cor- 
porate acts. It does not include and does not prohibit the 
carrying on of business and the making of contracts through 
the agents of the corporation, whether within or without the 
State. The limitation is only upon the exercise of the cor- 
porate functions of its charter. Bellows v. Todd, 39 Iowa, 
209 ; Arms v. Conant, 36 Vt. 744. 

The cases cited deal mostly with the doings of the corpora^ 
tion after its organization. But the principle is equally appli- 
cable to the act of organization itself. The meetino; at which 
the life granted by the charter is set in being is not only a 
corporate act, but it is the first and most important act. If a 
corporation cannot live and have being as a corporation, under 
Pul). Sts., c. 106, without the State, a fortiori, it cannot begin 
to live abroad. 

In my opinion, therefore, a business corporation cannot be 
legally organized outside the limits of the Commonwealth. 



Public Documents, — Returns of Gas Companies. 

It is not compulsory upon the Board of Gas and Electric Light Commission- 
ers to exhibit the returns made by gas companies to any person who may 
ask to see the same. 

E°ectHc*^Lf lu*^ ^ hscve tlic houor to acknowledge the receipt of your letter 

commi^ssioners. y£ g^|^ iw^t. , Containing several specific inquiries as to the duty 

November 14. of your Board in reference to the exhibition, to any person 

■who may ask to see the same, of the returns of gas companies 

made to your Board, pursuant to the provisions of St. 1885, 

c. 314, § 7, and St. 1886, c. 346, § 2. 

The statutes of the Commonwealth contain many and various 
provisions for returns by corporations, l)oth those chartered 
within the Commonwealth and foreign corporations doing busi- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 187 

ness here. Some of the returns so provided for are plainly 
for the information of the public. Examples of such ar« the 
returns required to be made by domestic corporations to the 
Secretary of State, under the provisions of Pub. Sts., c. 106, 
§ 54 ; and returns required of foreign corporations to be made 
to the Secretary of State, under the provisions of St. 1891, c. 
341. The returns provided by these statutes relate to the 
financial condition of the corporations afiected l)y its provisions, 
and are obviously of interest and importance to all persons 
having business with them. 

But the returns required to be made by gas companies to 
your Board are of a. ditferent character, and. for a different pur- 
pose. An examination of the purpose and scope of the acts 
containing such provisions makes it clear that returns from 
gas companies are required for the information and guidance 
of the Board in discharging its duties of supervision and regu- 
lation over such companies. By St. 1885, c. 314, § 8, it is 
provided that the Board shall have "the general supervision 
of all corporations engaged in the manufacture and sale of gas 
for lighting and for fuel." By § 9 of the same chapter the 
Board is authorized, upon the complaint in writing of the 
officers of the city or town in which a gas company is located, 
or of twenty customers of the company, to order such reduc- 
tion in the price of gas, or improvement in the quality thereof, 
as it shall deem just and proper. The Board is also by § 11 
charged with the duty of ascertaining with what degree of 
purity gas companies can reasonably be required to make and 
supply gas. By St. 1886, c. 346, § 5, the Board has jurisdic- 
tion over complaints for the refusal or neglect of gas companies 
to supply gas to persons residing in the place where :,^]:;e com- 
pany carries on its l)usiness. "^ 

To the end that the Board may perform the duties so required 
of it intelligently and wisely, the same act (St. 1885, c. 314, 
§ 7 ) , provides that every gas company shall annually make a 
return to the Board in such form as may be prescribed l)y the 
Board, ' ' setting forth the amount of its authorized capital, its 
indebtedness and financial condition on the first day of January 
preceding, and a statement of its income and expenses during 



188 OPINIONS OF THE ATTORNEY-GENERAL. 

the preceding year, together with its dividends paid or declared, 
and a list containing the names of all its salaried officers and 
the amount of the annual salary paid to each." This return 
must be signed and sworn to by the officers of the company. 
The same section further provides that the company shall also 
at all times on request ' ' furnish any statement of information 
required by the Board concerning the condition, management 
and operations of the company." Acting under the authority 
of this section, I am informed that your Board has prescribed 
a form of return by the gas companies within your jurisdiction, 
calling for a large number of items of information as to the 
business management and operations of the company not in- 
cluded in the statute requirements for sworn returns. These 
inquiries are so minute and ftir-reaching in their nature that 
they are intended to exhibit to the Board every detail of the 
business of the company making the return. 

These inquiries are within the authority contained in § 7 
above cited, and put the Board in possession of such informa- 
tion as enables it to exercise the jurisdiction conferred upon it 
as to the price and quality of the gas furnished, and the other 
matters of supervision set forth l)y the provisions of the 
statutes. 

They are not, however, of interest or importance to the pub- 
lic generally. The customers of the company, it is true, are 
interested in the price and quality of the gas furnished. Express 
provision, however, is made for the hearing of complaints made 
by them to the Board ; and, if they deem the price unreason- 
ably high or the quality unreasonably poor, they have their 
remedy by appeal to the Board, which, with the knowledge 
furnished it by the returns called for, is enabled to do justice 
between them and the companies who serve them. 

This view is confirmed by the fact that there is no provision 
of law for giving publicity to the returns made to your Board, 
excepting St. 1886, c. 346, § 2, providing that the Board shall 
transmit such abstracts of the returns as it shall deem ex- 
pedient annually to the Legislature. The abstracts referred 
to by this section are obviously abstracts of the sworn returns, 
and do not relate to the other inquiries, whether made from 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 189 

time to time hy the Board or included by them in the require- 
ments from the annual returns to be made by the companies. 
It would seem, therefore, that the only duty of the Board is to 
exhibit to the Legislature such portions of the sworn returns 
as may be called for by that body. 

This view is confirmed by the consideration of the fact that 
gas companies, in addition to the returns required to be made 
by your Board, are also required to return a statement of their 
financial condition to the Secretary of State, under the provi- 
sions of Pub. Sts., c. 106, § 54. The latter returns, as already 
stated, are intended for the information of the public and per- 
sons having business dealings with the companies making the 
returns. If the returns required to be made to your Board 
were for the information of the public, it would not be neces- 
sary to make returns to the Secretary of State, as all the infor- 
mation returned to the Secretary of State is contained in the 
returns made to your Board. It is plain, therefore, that the 
returns to the Secretary of State are for the use and informa- 
tion of the public generally, while the returns made to your 
Board are for the use and information of your Board in the 
performance of its duties of supervision and regulation. 

I am of opinion, therefore, that it is not the duty of your 
Board to exhibit the returns of gas companies to any person 
who may ask to see the same. I am of opinion, on the con- 
trary, that it is your duty to refuse to exhibit any part of said 
returns to casual inquirers. What, if any, duties as to the 
exhibition of the returns devolve upon the Board in the case 
of proceedings before courts or other tribunals, or in hearings 
before your Board where the information contained in the re- 
turns may be of importance, is a question which may well be 
left to be dealt with when it arises. 



liiO 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Cotn- 
misBioners of 
Savings Banks. 

1S94 
November 22. 



Savings Banks, — Authorized Investments, — Municipal Notes. 

An instrument with a seal attached, but in other respects bearing all the attri- 
butes of a note, and issued by a city under a resolution authorizing the 
issue of promissory notes in anticipation of certain assessments, is not a 
bond within the meaning of a statute authorizing savings banks to pur- 
chase legally authorized bonds. 

I have the honor to acknowledge the receipt of your com- 
munication of November 7, enclosing a form of instrument en- 
titled " Cleveland City Promissory Note," together with sundry 
other papers in connection with the same matter. In jour 
letter you ask my opinion as to whether (other requirements 
being satisfactory) the instrument in question is a bond within 
the meaning of St. 1894, c. 317, § 21, cl. 2, par. f. The por- 
tion of the statute in question authorizes savings banks, under 
certain conditions, which are not important to the present 
inquiry, to invest their deposits in legally authorized lionds 
for municipal purposes of certain cities in the State of Ohio, 
the city of Cleveland being one of those so descril)ed. If the 
instrument in question is a note, savings banks may not invest 
their funds therein. If it is a l:)ond, I understand hy your 
letter that it is a legal investment for savings banks. 

It may be a question whether the word ' ' bond " is used in 
the statute above quoted in its commercial or legal sense. As 
used in business transactions, the term "bond" often includes 
classes of securities which would hardly fulfil the common law 
definition of the word. Some confusion also has arisen through 
the legislation of different States upon the sul)ject. It may 
therefore be difficult, if not impossible, to define the difierence 
between notes and bonds in a way that shall be conclusive and 
sufiiciently accurate to cover all possible cases that may arise. 

But, whatever the general rule may be, it is plain that the 
instrument submitted by your letter is a note, and not a bond. 
It was issued under the authority of Rev. Sts., Ohio, § 2705, 
which is in the following words: "If the council makes any 
special assessment payable in annual installments ... it shall 
have authority to borrow upon the credit of the corporation a 
sum of money sufficient to pay the estimated cost and expense 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 191 

of the improvement, and shall have authority to issue ])onds, 
notes or certificates of indebtedness . . . for the payment of 
the principal and interest of such bonds, notes or certificates 
of indebtedness." Acting under this statute, the council of 
the city of Cleveland passed a vote providing ' ' that the city 
auditor may be authorized to make a loan of $53,200 in an- 
ticipation of the collection " of certain described assessments ; 
and further providing ' ' that the mayor and city auditor are 
hereby authorized to execute promissory notes of the city of 
Cleveland for said amount." The instrument itself is entitled 
"Cleveland City Promissory Note." It is of the tenor of a 
note in all respects, and is signed by the mayor and auditor. 

It therefore appears that the Legislature gave and intended 
to give to the city of Cleveland the election to issue bonds, 
notes or certificates of indebtedness, as it should determine. 
The city council elected to issue notes, and so authorized the 
treasurer. The instruments issued have the attributes of a 
note, and are so entitled. Neither the intention of the cor- 
poration nor the form of the instrument can properly be dis- 
regarded. Upon all the circumstances, therefore, it is plain 
that the instrument in question is intended to be and is a note, 
and is an instrument that the Legislature of the Commonwealth 
did not intend to authorize its savings banks to purchase. 

It is suggested, however, that, inasmuch as the seal of the 
city is affixed to the instrument, it has thereby Ijecome a bond. 
But upon examination of the statutes of Ohio it is clear that 
the affixing of the seal has not changed the character of instru- 
ment. The seal was affixed in accordance with the require- 
ments of Eev. Sts., Ohio, § 2706, which provided that "All 
bonds, notes or certificates of indebtedness issued by municipal 
corporations shall be signed by the mayor and by the auditor 
. . . and be sealed with the seal of the corporation." The affix- 
ing of the seal is not recited in the body of the instrument, and 
it does not purport to be a sealed instrument by its tenor. The 
intention of the law was obviously to require the affixing of 
seals to municipal notes and certificates of indebtedness, not 
for the purpose of changing their character, but to establish 
their authenticity as municipal obligations. I am confirmed in 



192 OPINIONS OF THE ATTORNEY-GENERAL. 

this view upon consideration of the fact that by § 4 of the Re- 
vised Statutes of Ohio private seals are abolished, and the affix- 
ing of a private seal does not give an instrument any additional 
force or effect. 

But, even if the affixing of the seal has changed the character 
of the instrument, the answer to your inquiry must still be the 
same. The statute in question authorizes savings banks to 
invest in the legally authorized bonds of certain western cities. 
The city council of Cleveland authorized the treasurer to issue 
promissory notes ; it did not authorize him to issue bonds. If 
the instruments are, or, by the affixing of the seal, have be- 
come, bonds, they are not legally authorized, and are not, 
therefore, obligations in which savings banks may invest. 

Upon the whole, therefore, I have to say that the form of 
obligation submitted to me is a note and not a bond, and is not 
an authorized investment for our savino^s banks. 



December 3. 



Massachusetts Agricultural Experiment Station, — Property, 

— Transfer. 

St. 1894, c 143, is Insufficient to auttiorize the transfer of the property that is 
vested in the Massachusetts Agricultural Experiment Station under the 
provisions of St. 1887, c. 31. 

To the I have received your communication with various papers 

Governor. *' '■ '■ 

1894 relating to the transfer of the property of the Massachusetts 

Agricultural Experiment Station under the provisions of St. 
1894, c. 143. 

St. 1863, c. 220, is entitled "An act to incorporate the 
trustees of the Massachusetts Agricultural College." By the 
provisions of § 1 the name of the body corporate thereby estab- 
lished is " Trustees of the Massachusetts Agricultural College." 
The corporation received certain moneys by the sale of land 
scrip, by virtue of the provisions of the 130th chapter of the 
Acts of the 37th Congress of the second session thereof, ap- 
proved July 2, 1862. The land was bought and the college 
was located at Amherst, the town of Amherst giving thereto 
the sum of $75,000. 



H08EA M. KNOWLTON, ATTORNEY-GENERAL. 193 

St. 1882, c. 212, established an agricultural experiment 
station to be maintained at the Massachusetts Agricultural 
College in the town of Amlierst, and the management of said 
station was vested in a Ijoard of control. 

The following acts and resolves relate to said Agricultural 
Experiment Station : St. 1883, c. 105 ; Res. 1884, c. 48 ; Res. 
1885, c. 66; Res. 1885, c. 68; St. 1885, c. 327; Res. 1886, 
c. 17; Res. 1887, c. 44; Res. 1888, c. 15; St. 1888, c. 296; 
St. 1888, c. 333. 

By St. 1887, c. 31, the members of the board of control of 
the Agricultural Experiment Station, established by the Mas- 
sachusetts Agricultural College in the town of Amherst, their 
associates and successors, were made a body corporate under 
the name of the "Massachusetts Agricultural Experiment 
Station ; " and by § 5 of said act the said corporation, l)y virtue 
of the act, was authorized to take and hold as and for its prop- 
erty all the property in the charge of said board of control ; and 
was thereby further authorized to hold such real estate and 
personal property as may be necessary for its purpose. The 
act was approved February 21, 1887, and took effect upon its 
passage. 

By St. 1887, c. 212, the Commonwealth of Massachusetts 
assented to and accepted "a grant of moneys to be annually 
made by the United States, as set forth and defined in an act 
of Congress, entitled ' An act to establish agricultural experi- 
ment stations in connection with the colleges established in the 
several States, under the provisions of an act approved July 
2, 1862, and of the acts supplementary thereto,' said act, desis;- 
nated Public No. 112, being passed at the second session of 
the 49th Congress, and approved March 2, 1887, and upon 
the terms and conditions contained and set forth in said act of 
Cono-ress." 

The result is that there are in operation two experiment 
stations, one known as the Massachusetts Agricultural Experi- 
ment Station, carried on as the Massachusetts Ao-ricultural 
Experiment Station, under the management of the body cor- 
porate known as the Massachusetts Agricultural Experiment 
Station, and a station known as the Hatch Experiment Station, 



194 OPINIONS OF THE ATTORNEY-GENERAL. 

carried on l)y the corporation known as the trustees of the 
Massachusetts Agricultural College. In order to consolidate 
these stations, St. 1894, c. 143, was enacted. 

As will be seen, St. 1887, c. 31, § 5, vested in the Massa- 
chusetts Agricultural Experiment Station, the body corporate 
constituted by said act, all the property in charge of said board 
of control. On the sixth day of July, A.D. 1887, the ]\Iassa- 
chusetts Agricultural College leased to the Massachusetts Agi'i- 
cultural Experiment Station, a corporation duly organized by 
law, certain real estate in Amherst for the term of ninety-nine 
years, which is part of the property enumerated in St. 1894, c. 
143. In the legislation in reference to the Massachusetts 
Agricultural Experiment Station, subsequent to St. 1887, c. 
31, to wit, St. 1888, c. 333, and St. 1894, c. 143, and c. 144, 
the fact that by St. 1887, c. 31, the board of control was made 
a corporation appears to have been overlooked. 

In my opinion, St. 1894, c. 143 is insufficient to authorize 
the transfer of the property that is vested in the corporation 
by the provisions of St. 1887, c. 31. It seems to me that the 
matter can be remedied only by legislation.* 



Civil Service, — Deputy Superintendent of Public Buildings 

OF Boston. 

The duties of the deputy superintendents of the public buildings department 
of the city of Boston, as defined in the evidence submitted by the Board 
of Civil Service Commissioners, are such as to bring the office of deputy 
superintendent within the classification of the public service provided by 
Class 7 of Schedule B, Rule 6 of the civil service rules. 

To the Civil I })ecr to acknowledo-e your request for my opinion as to 

Service Com- <^ o »/ ^ ./ i 

misHonerB wlicthcr tlic dutics of thc dcputy superintendents of the public 

December 4. buildiugs department of the city of Boston are such as to bring 

the office of deputy superintendent within the classification of 

the public service provided by Class 7 of Schedule B, Rule G 

of the civil service rules. 

* Remedied by St. 1895, c. 57. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 195 

The offices and places which are filled under the civil service 
rules are classified in two divisions. The first division is sub- 
divided into Schedule A and Schedule B, and each schedule is 
in turn subdivided into several classes. Class 7 of Schedule B 
includes inspectors of work and all persons under whatever 
designation doing inspection service not included in Schedule 
A. Rule 21, § 4, of the civil service rules, provides for the 
examination of applicants for the position of inspector, by giv- 
ing the commissioners authority to order examinations upon 
subjects of a technical or special character, to test the capacity 
which may be needed in any part of the classified service which 
requires peculiar information or skill. 

On the other hand, vSt. 1893, c. 95, provides that heads of any 
principal departments of a city shall not be aflected by the civil 
service rules, either as to their selection or their appointment. 

The deputy superintendents of the public buildings depart- 
ment are at the present time appointed by the superintendent 
of the department. Under authority of the city ordinances, 
c. 33, § 1, the superintendent has divided the city of Boston 
into six territorial districts, and for each district he has ap- 
pointed under him a deputy superintendent, giving to each 
deputy a designated district. The question then is, first, 
whether these deputy superintendents are heads of any prin- 
cipal department of the city of Boston, and therefore specially 
exempt under authority of the above act from the operation of 
the civil service rules ; second, if not so exempt, whether they 
are inspectors of work or persons under any designation doing 
inspection service, and therefore coming within the classification 
of the civil service rules. 

An examination of the exhibits presented with your request 
shows : — 

1. The work of inspection of buildings must be performed 
personally by each deputy. 

2. A deputy has not the right to repair a building upon his 
own personal responsibility; but whenever, in his opinion, 
any building stands in need of repair, he is obliged to make a 
written report and recommendation of that fact to the super- 
intendent, setting forth fully the nature of the repairs needed. 



196 OPINIONS OF THE ATTORNEY-GENERAL. 

3. The execution of these repairs, and the employment of 
mechanics and other assistants in furtherance thereof, can only 
be had upon the approval of the superintendent. 

4. There are no city employees under the control of any 
deputy. 

5. The deputies have no offices of their own, each one 
merely having a desk in the office of the superintendent of 
the public buildings department. 

6. The superintendent can change the number of deputies 
at will, and there is nothing to prevent him from sending one 
deputy into the district of another. 

7. Each deputy is obliged to make an annual report to the 
superintendent. 

8. The entire work is done under the general supervision 
of the superintendent. 

The duties of the superintendent of this department are 
shown in the revised ordinances of the city of Boston c. 33, 
■§ 1. He has the supervision of all buildings belonging to the 
city and of all buildings or parts of buildings hired hy the 
city, and he must provide therein all necessary furniture and 
keep the same in good condition ; and he has the supervision 
of all repairs upon all buildings and parts of buildings used by 
the city. 

It seems perfectly clear from the character of the deputy 
superintendents' duties, as shown by this analysis of the evi- 
dence submitted, that the said deputies cannot in any way be 
considered as the heads of any principal department of the city 
of Boston ; and they do not, therefore, come within the ex- 
emption of St. 1893, c. 95. The evidence shows with the 
same clearness that in reality these so-called deputies are 
merely inspectors performing their work under the supervision 
of the superintendent, responsible to the superintendent, at 
the head of no department, and having no men in their em- 
ployment ; and, therefore, that they fall within the definition 
of Class 7 of Schedule B, Rule 6 of the civil service rules. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 197 



County Accounts, — Special County Commissioner, — Allow- 
ance FOR Travel. 

It is not necessary for a special county commissioner to present a certified 
itemized statement to tlie Controller of County Accounts in order to 
obtain the allowance of ten cents a mile for travel, granted by St. 1894, 
c. 250. 

I have the honor to acknowledge your request for my opinion To the 
upon the question raised by the Controller of County Accounts isgs 
in his communication of January 10, addressed to Your Excel- "^^^^^^i. 
lency. 

The question is this: By St. 1894, c. 250, § 1, a special 
county commissioner is allowed ten cents a mile travel each 
way for time spent in the discharge of his official duties. Is it 
necessary, before such expenses are allowed and paid to him 
out of the county treasury, for him to present a certified itemized 
statement thereof to the Controller of County Accounts, to be by 
him audited and certified to the treasurer of the proper county. 

By St. 1887, c. 438, § 3, it is provided that the Controller 
shall inspect and audit the accounts of the county treasurers of 
each county. Comparing this statute with those concerning 
the duties of county treasurers, it appears that, in cases of 
county expenses of this nature, the usual course is for the 
expenses to be allowed and paid directly by the county treas- 
urers, the accounts of the latter being afterwards audited by 
the Controller. 

A new method of auditing accounts, for the particular case 
specified in the statute in question, was introduced by St. 1893, 
c. 273. This act provided that there should be allowed and 
paid to each county commissioner the ' ' actual necessary and 
proper expenses of transportation paid by him in the discharge 
of his duties, upon a certified itemized statement of such ex- 
penses, made ... to the Controller of County Accounts, 
who shall audit and certify the same to the treasurer of the 
proper county." 

Pub. Sts., c. 22, § 31, provided that all the provisions of 
law concerning the duties of county commissioners should, 



198 OPINIONS OF THE ATTORNEY-GENERAL. 

except where it was otherwise specially provided, be construed 
to include and apply to special county commissioners. If the 
question M'ere, then, whether a bill of a special county com- 
missioner for actual necessary and proper expenses for trans- 
portation, before being allowed by the county treasurer, should 
be presented to and certified by the Controller of County 
Accounts, there would be good ground for holding under 
authority of this chapter that the duty placed upon the county 
commissioners in similar cases to present such an itemized 
statement necessarily implied a like duty in the case of special 
county commissioners. 

But the question raised by the Controller presents a different 
aspect of the case. His question is whether, for allowance and 
payment of the "ten cents a mile travel each way," granted by 
St. 1894, c. 250, to special county commissioners, it is neces- 
sary for a certified statement to l)e presented to the Controller. 

There is no provision in this act either stating or imply- 
ing that a special county commissioner, in order to have this 
allowance paid to him, shall present such a statement to the 
Controller. Likewise there is no statute requiring a county 
commissioner to present such a statement ; for the statement 
required by St. 1893, c. 273, from the county commissioners, 
and therefore by implication from special county commission- 
ers, is a statement of the actual necessary and proper expenses 
for transportation ; whereas, in the case under consideration a 
special county commissioner is not paid the actual expense of 
transportation, l)ut is allowed instead the arbitrary sum of ten 
cents a mile travel each way. 

For these reasons I am of the opinion that, in the absence of 
any ol:>ligatory statutory provision, either expressed or implied, 
it is not necessary for a special county commissioner to present 
a certified itemized statement to the Controller of County Ac- 
counts in order to obtain the allowance of ten cents a mile for 
travel each way granted to him by St. 1894, c. 250. 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 199 



Convict, — Pardon, — Constitutional Law. 

The Governor may refuse to pardon a convict, although pardon is recom- 
mended by the Council. 



I have examined the question submitted to me orally by to the 

^ "^ '> Governor. 

Your Excellency, to wit, " Can the Governor refuse to pardon isos 
a convict, although advised by the Council to pardon him ? " ^'.i^^^ 
and have to reply as follows : — 

By the Constitution of Massachusetts, Part 2, c. 2, art. 8, 
** The power of pardoning offences . . . shall be in the Gov- 
ernor, by and with the advice of Council." The Council has no 
pardoning power. The Governor, it is true, cannot exercise 
the power of pardon vested in him excepting by the advice of 
the Council, But he cannot be directed by that body to exer- 
cise 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. 



Controller of County Accounts, — Travelling Expenses. 

The expenses of the Controller of County Accounts and his deputies, incurred 
in travelling from their homes to their Boston office and in returning 
therefrom, cannot be allowed them under a statute providing for their 
actual travelling expenses incurred in the discharge of their official duties. 

I have the honor to acknowledge the receipt of your letter, To the 
dated December 29, 1894, referring to me a letter of inquiry isqs 
from the Controller of County Accounts. The question stated ^^^^^^22. 
in the letter of the Controller is "whether, under the provisions 
of St. 1887, c. 438, § 2, the Controller and his deputies should 
be allowed their actual expenses incurred in travelling in the 
discharge of their official duties between their respective places 
of residence and the office of said Controller in Boston." It is 
further stated in the letter that the travelling in relation to 
which the inquiry is made is ' ' for the purpose of reaching the 



200 OPINIONS OF THE ATTORNEY-GENERAL. 

office, to there perform the duties of the day, and for returning 
from said office to their homes." 

The act referred to provides in § 2 for the salary of the Con- 
troller ; and that he " shall be allowed also the actual expenses 
of himself and , . . clerks incurred in travelling in the dis- 
charge of official duties." By an amendment (St. 1890, c. 
306) of this act the same provision for travelling expenses i& 
made as to deputies, St. 1887, c. 438, § 3, prescribes the 
duties of the Controller and his deputies, which are, in sub- 
stance, to inspect the books and accounts of the county treas- 
urers, and to visit, at least once a year, all other county officers 
receiving money of the county, and also all clerks of courts and 
trial justices, and examine their accounts. I do not tind any 
provision of law which requires him to maintain an office for his 
own use, or to attend at such office for any purpose, although 
this fact is not, in my opinion, material to the inquiry proposed. 

The official duties in the discharge of which he is allowed the 
actual expenses of himself and deputies obviously refer to the 
duties prescribed in § 3, which necessarily require the Con- 
troller and his deputies to travel about the Commonwealth ; 
and it must be taken to have been the intention of the Leg- 
islature to confine the allowance for travelling expenses to 
expenses so incurred. It has not been the policy of the Com- 
monwealth, nor the practice under its laws, to allow officers 
for travelling expenses from their homes to their offices, except 
when provision is especially made therefor. I have no hesita- 
tion in saying that the expenses of the Controller incurred in 
travellino; from his home to his office in Boston and of return- 
ing therefrom to his home are not within the scope of the 
statute referred to. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 201 



United States Senator, — Election. 

A person who, on the first day when the two branches of the Legislature 
meet separately, receives in each branch a majority of the votes for the 
office of United States senator, is elected on the day such votes are taken, 
and all subsequent proceedings are merely in the nature of verification. 

I am in receipt of your letter of January 18, askino; my To the 

^ ^^ . . Secretary. 

opinion whether, in case the same person receives a majority 1895 
of the votes for the office of United States senator in each house ^^^^^^ ^ • 
of the Legislature on the first day when the two branches vote 
separately, he is elected that day, or not until the following 
day, when the two houses convene in joint assembly and the 
journals of the two houses are read and the result declared. 

I presume the inquiry is made in the interest of technical 
accuracy. I can conceive of no circumstances under which 
the question would become of practical importance ; for, when- 
ever elected, the person chosen is not entitled to take his seat 
in the Senate until he receives his certificate of election. 

The Constitution of the United States, Art. I., § 3, provides 
that ' ' The Senate of the United States shall be composed of 
two senators from each State, chosen by the Legislature 
thereof." Section 4 provides that "The times, places and 
manner of holding elections for senators . . . shall be pre- 
scribed in each State by the Legislature thereof; but the Con- 
gress may at any time by law make or alter such regulations." 

Under the authority of § 4, above quoted, Congress has 
regulated the election of senators by the Legislatures of the 
several States. U. S. Rev. Sts., §§14 and 15. Section 14 
provides that the Legislature of each State "shall, on the 
second Tuesday after the meeting and organization thereof, 
proceed to elect a senator in Congress." Section 15 provides 
that " Such election shall be conducted in the following manner : 
Each house shall openly, by a viva voce vote of each member 
present, name one person for senator in Congress from such 
State, and the name of the person so voted for, who receives 
a majority of the whole number of votes cast in each house, 
shall be entered on the journal of that house ])y the clerk or 



202 OPINIONS OF THE ATTORNEY-GENERAL. 

secretary thereof; or if either house fails to give such ma- 
jority to any person on that day, the fact shall l)c entered on 
the journal." The same section further provides that "At 
twelve o'clock meridian of the day following . . . the mem- 
bers of the two houses shall convene in joint assembly, and the 
journal of each house shall then be read, and if the same person 
has received a majority of all the votes in each house, he shall 
be declared duly elected senator." The section provides fur- 
ther that in case the same person has not received a majority 
of the votes in each house, the joint assembly shall thereupon 
proceed to choose by a viva voce vote in a similar manner a 
person for senator, and the person who receives the majority 
of all the votes of the joint assembly shall be declared to be 
elected. 

It is plain that the election takes place on the day when the 
two houses separately make their choice, provided they both 
choose the same person. The proceedings of Wednesday are 
for the purpose of ascertaining whether the same person has 
been chosen or elected by each branch. If such, by the rec- 
ords of the two houses, appears to be the fact, nothing remains 
but a declaration of the result. If, on the other hand, it ap- 
pears that no person has been so chosen, the electors, being 
then assembled together, shall proceed to the election of a 
senator. The election is on Tuesday ; the ascertaining and 
declaration of the fact takes place on Wednesday. The for- 
malities incident to the election are not complete until the two 
houses meet in joint convention ; but the day of election is the 
day when the electors record their votes. 

The proceedings are analogous in some respects to those 
incident to the election of officers by two or more voting 
precincts. The electors cast their ballots on the Tuesday after 
the first Monday in November. The record of the votes so 
cast is sul)mitted on a subsequent day to a returning or can- 
vassing board, who examine the returns and declare the result. 
It is not formally ascertained who is elected until these formal- 
ities are complied with ; but there can be no question that the 
election was held on the day when the electors cast their votes. 
The only essential diflcrence between these two cases, to wit, 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 203 

an election by voting precincts and the election of a senator by 
the two branches of the Legislature on Tuesday, is that, under 
the statutes of the United States, above quoted, there is no 
election unless both constituents of the Legislature elect the 
same person. If they do not, there is no election. If, how- 
ever, they do so concur, the act of election is complete, and 
the subsequent proceedings are in the nature of verification 
only. 

This conclusion is in accordance with what I understand to 
have l)een the uniformly established practice in senatorial elec- 
tions in this Commonwealth. That it is also the view of Con- 
gress appears from the fact that by Rev. Sts., § 14, above 
quoted, it is provided that the Legislature shall elect a senator 
"on the second Tuesday,''' etc. 



Corporation, — Increase of Capital, — Certificate, — Pre- 
ferred Stock. 

A corporation, upon increasing its capital stocli under the provisions of Pub. 
Sts., c. 106, § 59, presented to tlie Commissioner of Corporations for his 
approval a certificate correct in form, vpith the exception of the following 
words, which were unnecessarily inserted : " One hundred and fifty thou- 
sand preferred stock and one hundred thousand common stock." The 
Commissioner is not required to approve such a certificate. 

I have the honor to acknowledge the receipt of your letter To the Com- 

/. . . 1 T -vT 1 n 1 • • • missioner of 

of inquiry, dated November 9, 1894, asking my opinion upon Corporations. 
the questions: first, whether a manufacturing corporation, by January 22. 
vote of its stockholders, can increase its capital stock partly in 
preferred stock and partly in common stock ; and, second, if 
so increased, is the Commissioner of Corporations bound to 
approve a certificate which sets forth the fact that a portion of 
the increase is in preferred stock? 

Pub. Sts., c. 106, § 56, provides that every corporation sub- 
ject to said chapter "shall, upon an increase of its capital 
stock, within thirty days after the payment or collection of the 
last instalment thereof, file a certificate of the amount of such 
increase and the fact of such payment, signed and sworn to 



204 OPINIONS OF THE ATTORNEY-GENERAL. 

... in tlic office of the Secretary of the Commonwealth." 
Section 59 provides that every such certificate " shall, before 
filing, be submitted to the Commissioner of Corporations, who 
shall examine the same ; and if it appears to him to be a suffi- 
cient compliance in form with the requirements of this chapter, 
he shall certify his approval thereof by indorsement upon the 
same." 

The Commissioner of Corporations under the section last 
quoted is only required to see that the certificate is in due form. 
The certificate is obviously for the purpose of informing the 
Commonwealth and those having business with the corporation 
as to the amount of its capital stock, and whether it has been 
paid in. 

The certificate as to which your inquiry is made has been 
submitted to me for examination. I find it to be correct in 
form and in accordance with the provisions of said § 56, except- 
ing that, after stating that the capital stock of the corporation 
has been increased by the amount of two hundred and fifty 
thousand dollars, and that the same has all been paid in, the 
following words are inserted in l)rackets : ' ' One hundred and 
fifty thousand preferred stock and one hundred thousand com- 
mon stock." 

I am of opinion that you are not called upon to approve a 
certificate containing these recitals, for the reason that they are 
no part of the return required by § 56. You are not required 
to determine whether the corporation has the right to character- 
ize a part of the increase of its stock as preferred, but only to 
certify that the certificate is in form as required by § 56. 
The incorporation of statements not required by the section is 
a departure from the form of certificate required, and authorizes 
you to disapprove of it. 

These considerations also dispose of your first inquiry, so far 
as it relates to the performance of your duties. Whether a 
corporation may issue preferred stock under any circumstances, 
and, if so, under what circumstances, is a question which may 
well be left to be dealt with when it arises. It does not arise 
in the performance of your duties under § 59, and there is no 
occasion at present to consider it. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 205 



Corporation, — Fee for recording Certificate of Change of 
Business, — Capital. 

Pub. Sts., c. 106, § 84, cl. 3, provides that the fee for recording the certificate 
required by §§ 51 and 52 of the same chapter shall be a certain per cent, 
of the capital stock of the corporation. The words " capital stock," as 
here used, mean not the amount actually paid in, but the amount fixed by 
the corporation. 



I am in receipt of your letter of 21st inst., asking for a con- To the 

SccrctfirVt 

struction as to the meaning of Pub. Sts., c. 106, § 84, cl. 3. isos 
That clause provides that the fee to be paid for filing and re- J'^^^^^s. 
cording the certificates required by §§ 51 and 52 of the same 
chapter shall be "one-twentieth of one per cent, of the amount 
of the capital stock of the corporation." The question sub- 
mitted is whether this fee is to ])e computed on the amount of 
the capital stock fixed by the corporation, or the amount actu- 
ally paid in. 

Section 51 referred to in the clause under consideration pro- 
vides that a corporation may, "upon the vote of all its stock- 
holders at a meeting duly called for the purpose, alter, add to 
or change the business for the transaction of which it was in- 
corporated." It is further provided that a certificate setting 
forth such alteration, addition or change shall be filed in the 
office of the Secretary. Section 52 provides that a gas com- 
pany may engage in the business of generating or furnishing 
steam or hot water for mechanical purposes under certain pro- 
visions, upon filing a certificate thereof, as provided in § 51. 

I apprehend that the only occasion for doulit in reference 
to the inquiry suggested is the fact that § 84 provides, in 
cl. 2, that the fee to be paid upon original incorporation is 
declared to be one-twentieth of one per cent, of the capital 
stock ' ' as fixed by the agreement of association ; " and it may 
be claimed that the omission of the words last quoted in the 
clause under consideration is significant, as indicating the 
intent of the Legislature to confine the tax in the latter clause 
to a percentage on the capital stock actually paid in. There 
is no force, however, in this suggestion. In the former clause 
the fee specified is to be paid immediately upon the organiza- 



206 OPINIONS OF THE ATTORNEY-GENERAL. 

tion of a corporation and at the time of the liHng of the certiti- 
cate of organization, presumably, therefore, before the capital 
stock is taken, or perhaps even subscribed for. 

In the entire chapter the words "capital" or " capital stock" 
are used to mean the amount of capital stock fixed by the 
charter of the company or subsequently voted as an increase. 
See §§ 7, 8, 16, 21, 32, 33 and 46. The chapter does not 
appear to recognize the status of a corporation whose stock 
is partially paid in. Indeed, it is expressly provided in § 
46 that it shall not commence the transaction of its business 
until the whole amount of the capital stock is paid in. There 
is no room for doubt, in my opinion, that whenever the words 
' ' capital stock " are used in the chapter they are intended to 
denote the capital stock as fixed l)y the charter or l)y vote, 
regardless of the question whether it is paid in or not. 

Reference to the statutes of which §§51 and 52 are substan- 
tially re-enactments confirms this view^ St. 1875, c. 177, 
§ 4, which is the original enactment of § 51, now under con- 
sideration, after a provision that a corporation may alter, add 
to or change the business for the transaction of which it was 
incorporated, contains these words : " and provided, also, that 
a certificate setting forth such alteration, addition or change, 
signed and sworn to by the president, treasurer and a majority 
of the directors, shall be filed in the ofiice of the Secretary of 
the Commonwealth, to whom shall be paid a like fee to that 
prescribed by the schedule contained in section 59 of chapter 
224 of the Acts of 1870." 

St. 1879, c. 202, § 2, where § 52 first appears, after pro- 
viding for a change of business by a gas company, adds, " on 
complying with the provisions of section 4 of chapter 177 of 
the Acts of the year 1875, as the certificate and fee therein 
provided for." 

By the reference contained in these statutes the fee fixed is 
"one-twentieth of one per cent, of the amount of the capital 
stock as fixed by the agreement of the association." It is not 
to be presumed that the meaning of these statutes was changed, 
or intended to be changed, by their consolidation into the Public 
Statutes. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 207 

I am, therefore, of the opinion that the fee for filing the 
certificate is based upon the amount of the capital stock as 
fixed, and not upon the amount of capital paid in. 



Public Records, — Church Records. 

The Commissioner of Public Records has no authority to require the records 
of existing churches, parishes or religious societies to be kept with the 
same safety required in the case of city, county or town records. 

I take pleasure in acknowledoino: your letter of February 6 , '^9 *^® ^°™: 

1 O o J J ' missioner of 

asking my opinion as to whether, under St. 1892, c. 333, § 3, fubuc Records. 
you have any authority to require that the records of existing February 7. 
churches, parishes or religious societies shall be kept with the 
same safety required for county, city or town records. 

It is your duty under the said act of 1892 "to take such 
action as may be necessary to put the public records of the 
counties, cities, towns, churches, parishes or religious societies 
of the Commonwealth, in the custody and condition contem- 
plated by the various laws relating to said records, and to 
secure their preservation." 

The laws relating to the preservation, condition and custody 
of the public records of the Commonwealth are embraced in 
Pub. Sts., c. 37, and the various amendments thereto. These 
acts, with the exception of Pub. Sts., c. 37, § 15, are all 
limited, as regards this question, to the custody and preserva- 
tion of the records of counties, towns and cities. The only 
instance where legal provision is made for the preservation of 
the records of a church or rehgious society occurs in said § 15, 
which provides, in the case of a church or religious society 
ceasing to have a legal existence, and when the care of its 
records and registries is not otherwise provided for by law, 
that the person having possession of such records or registries 
shall deliver them to the clerk of the city or town in which 
said church or society was situated. 

In the case, therefore, of an existing church, parish or 
religious society, there is no legal provision regulating the 
preservation of its records. And, although it may be true 



208 OPINIONS OF THE ATTORNEY-GENERAL. 

that in many cases the earliest records concerning the town in 
question are eml)raced within the records of some church, 
parish or religious society, it cannot be said that this would 
make a record belonging to such a body the record of a town, 
county or city within the meaning of the words of the statutes. 
The words "records of the counties, cities or towns," as used 
in the statutes, mean the records owned l)y such bodies, and 
cannot include the records concerning the towns in question, 
however valuable they may be from any historical point of 
view, which belong to another corporate body not included in 
the words "counties, cities or towns." 

It is your duty, therefore, in the case of the records of 
churches, parishes or religious societies of the Commonwealth, 
to see that such records shall be kept in the custody and con- 
dition contemplated by the various laws relating to churches, 
parishes or religious societies ; and you cannot require the 
records of these bodies to be kept in the manner prescribed 
for counties, cities or towns. If such a course is desirable, 
your only remedy is to secure adequate legislation. 

It might be claimed, under the authority of the words "and 
to secure their preservation," in § 3 quoted above, that you 
were given the power in question. The clause is ambiguous, 
and it is a question whether it should not be read as meaning 
that you were to secure their preservation in the manner con- 
templated l)y the various laws relating to records. But, how- 
ever this question may be answered, I do not think that this 
clause is sufficient to give you authority to require that the 
records of churches, parishes or religious societies should be 
kept with the same safety required by the statutes in case of 
county, city or town records. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 209 



Manufacturing, — Typesetting in Newspaper Office, — Employ- 
ment OF Women. 

St. 1894, c. 508, § 12, prohibiting the employment of women in any capacity 
for the purpose of manufacturing between ten o'clock at night and six 
o'clock in the morning, does not prohibit the employment of women dur- 
ing the night for the purpose of setting type in a newspaper office. 

I understand that my opinion is desired for the guidance of Qo,^e®ior 
the Chief of the State District Police upon the following facts, i^^^ 

February 21. 

to Wit : — 

In certain establishments within this Commonwealth, engao-ed 
in the business of printing and publishing a morning newspaper, 
women are employed at setting type during the night. Is such 
employment forbidden by St. 1894, c. 508, § 12? 

The language of the section in question is : " No person or 
corporation . . . shall employ any woman or minor in any 
capacity for the purpose of manufacturing, between the hours 
of ten o'clock at night and six o'clock in the morning." 

The exact question presented is whether a woman employed 
in setting type to be used in printing a newspaper is employed 
*'in any capacity for the purpose of manufacturing." The 
word "manufacture" is deiined in the Century dictionary 
as ' ' the production of articles for use from raw or prepared 
materials by giving these materials new forms . . . whether 
by hand labor or by machinery." In Stone v. Howard Insur- 
ance Company, 153 Mass. 475, 478, Mr. Justice Charles 
Allen says : "A manufacturing establishment is an establish- 
ment for manufacturing raw material." 

The word ' ' manufacturing " may sometimes be used in a 
more limited or more enlarged sense, l)ut I have no doubt that 
the above definitions are fairly applicable to the word as used 
in legislation upon the subject of labor, for they indicate the 
sense in which the word is ordinarily used. A manufacturing 
establishment, in the common use of that term, is a mill or 
other plant in which the principal duty of those employed 
therein is to work by hand or by machinery upon raw material, 
and convert it by such labor into some article of commerce. 



210 OPINIONS OF THE ATTORNEY-GENERAL. 

Regarding the word ' ' manufacturing " as having the mean- 
ing I have indicated, it cannot be fairly said that the business 
of producing a newspaper is manufacturing. It is true labor 
is expended upon paper, so that it becomes an article of 
commerce, to wit, a newspaper ; but the labor so bestowed is 
not the principal element which enters into the construction 
of a newspaper. Typesetting is rather a mechanical than a 
manufiicturing work ; like horseshoeing, carriage painting or 
any other form of employment in which no essential change is 
produced in the thing upon which the labor is expended. 

In Evening Journal Association v. Assessors, 47 N. J. L. 36, 
the court says (page 41) : "A newspaper has intrinsically no 
value above that of the unprinted sheet. Indeed, it has less 
value, considered intrinsically, as a mere article of merchandise. 
Its value to its subscribers arises from the information it con- 
tains, and its profit to the publisher is derived, in a great 
measure, from the advertising patronage it obtains by reason 
of the circulation of the paper induced by the enterprise and 
ability with which it is conducted. Neither in the nature of 
things nor in the ordinary signification of language, would a 
newspaper be called a manufactured article or its publisher a 
manufacturer." See also as to the meaning of the word 
"manufacture," as used in the statutes of Massachusetts: 
Dudley v. Jamaica Pond Aqueduct Corp., 100 Mass. 183; 
Byers v. Franklin Coal Co., 106 Mass. 131; Hittinger v, 
Westford, 135 Mass. 258. 

The view I take derives much support from an examination 
of the statutes relating to the forming of corporations under 
the general laws. Pub. Sts., c. 106, § 7, authorizes the form- 
ing of corporations for the purpose "of carrying on any 
mechanical, mining or manufacturing business." Section 8 
authorizes such corporations to be formed for the purpose "of 
printing and publishing newspapers, periodicals, books or 
engravings." It is plain that the framers of this statute did 
not regard a printing office as a manufacturing establishment. 
Some argument may also be drawn from the fact that the sec- 
tion now under consideration limits the restriction as to 
employment of females to employment in manufacturing; 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 211 

whereas the preceding section (§ 11) forbids the employment 
of women more than fifty-eight liours in a week ' ' in any 
manufacturing or mechanical establishment." If the word 
' ' mechanical " had been used in the section under considera- 
tion, a very different question would have been presented. 

I am of opinion, therefore, that the employment of women 
in typesetting in a newspaper office is not prohibited hy St. 
1894, c. 508, § 12, and I cannot advise the Chief of the Dis- 
trict Police to prosecute for such employment under that 
section. 

Fire Marshal, — Jurisdiction, — Establishment for refining 
Petroleum, — Dangerous Building, — Police Regulations. 

St. 1894, c. 444, § 5, does not confer upon the Fire Marshal the power to ad- 
judge as dangerous an establishment for the refining of petroleum, which 
has conformed to all the statutory requirements relating thereto. 



Fire Marshal. 



I have given some time to the consideration of the questions Tothe 
stated in your letter of the 6tli inst. , in view of their importance 18%. 

and difficulty. February 26. 

St. 1894, c. 444, § 5, provides substantially (omitting such 
portions as define the duties of other officers than yourself) 
that the Fire Marshal has tlie right at all reasonable liours, for 
the purpose of examination, to enter into and upon all ])uikl- 
ings ; and that whenever he finds in any building " combustible 
material or inflammable conditions dangerous to tlie safety of 
such building or premises " he may order the same to be re- 
moved or remedied. The section further provides that "upon 
complaint of any person having an interest in such buildings or 
premises, or property adjacent thereto," he shall make such in- 
vestigation. 

The general question stated in your letter relates to the in- 
terpretation to be given to the words ' ' inflammable conditions 
or combustible materials dangerous to the safety of such build- 
ings ; " or, to quote from your letter : "Is the word dangerous 
used in a broad and liberal sense, with the intention of placing 
within the discretion of the Fire Marshal the power to annihilate 
if necessary any building which necessarily involves the pres- 



212 OPINIONS OF THE ATTORNEY-GENERAL. 

cnce of combustible materials or inflammable conditions danger- 
ous, etc. ; or was it intended that the word dangerous should 
be taken comparatively, and that the question as to whether 
certain conditions and certain materials are dangerous within 
the meaning of the statute should be gauged by the standard of 
such danger as may be reasonably expected from a particular 
class of business similar to the one which may be under con- 
sideration ? " 

It is impracticable if not impossible to lay down in advance 
any general rules of procedure which shall be sufficient for all 
cases that may arise. I am not certain that either of the alter- 
natives stated in your general inquiry are fully descriptive or 
conclusive as to your duties under all circumstances. 

I prefer to consider specifically the questions arising upon 
the facts stated by way of illustration in your letter. The case 
presented I understand to l)e this. There is in the city of 
Somerville an establishment in which the business of storing, 
making and refining petroleum oil is carried on. Complaint in 
due form under the provisions of § 5, above quoted, has been 
made by persons or corporations "having an interest in . . . 
property adjacent thereto." I understand that you have in- 
vestigated the plant, and have ascertained that all the provisions 
of the statutes with relation to the making, storing and refining 
of petroleum oil have been complied with by the owners of the 
plant. You are also satisfied that, speaking relatively, the 
premises contain combustible material or inflammable conditions 
dangerous to the safety of the building. That is to say, as 
compared with a school-house, a hotel or a cotton mill, the oil 
works are dangerous. I further assume that you may have 
determined that the existence of the oil works is, relatively 
speaking, a menace to the safety of the adjoining property. Is 
it your duty upon this state of facts to order the combustible 
material or inflammable conditions to l^e "removed or rem- 
edied ; " and are the owners thereof liable to the penalties im- 
posed by the section in case they refuse to comply with your 
orders in respect thereto ? 

It has long been settled that the Legislature has the right, 
within certain lines of distinction not definitely settled, to 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 213 

determine what is and what is not a nuisance ; that is to say, 
dangerous to the health and comfort of the community or to 
property in the vicinity. It is also well settled that the right 
of so determining what is or is not a nuisance may be delegated 
to inferior tribunals, boards or officers. For example, certain 
trades or employments are forl)idden to be exercised excepting 
under a license by municipal authorities. Boards of health, 
also, are charged with responsibility of regulating, even of 
forbidding, within certain limits, trades, employments or estab- 
lishments that are dangerous to the public health. Upon the 
same principle it may well be that the Legislature has the right 
to delegate to an officer like the State Fire Marshal the right of 
determining what conditions are, by reason of their combustible 
or inflammable nature, a menace to the property in the vicinity. 

In all cases, therefore, where the Legislature has not by 
positive enactments determined the question of what conditions 
are to be res-arded as inflammable and dangerous, the section 
under consideration must be considered as vesting in the Fire 
Marshal the authority of determining each question in his dis- 
cretion as it arises ; and he is not limited in so determining it 
to the question whether the conditions under consideration are 
more or less dangerous than may be reasonably expected from 
those which ordinarily exist in similar situations. 

Nor does the fact that the business under investigation is 
carried on by virtue of a license necessarily restrain the 
Marshal in the exercise of the powers conferred upon him by 
this section. It is well settled that a license is subject to such 
police regulations as the Legislature may see fit to enact with 
reference to the subject matter. Commoniuealth v. EUis, 158 
Mass. 555, and cases cited; Commonwealth v. Kidder, 107 
Mass. 188. 

For example, the manufacture of gunpowder can only be 
carried on under a license from the municipal authorities. 
Pub. Sts., c. 102, § 61. It is scarcely open to doubt, how- 
ever, that, under the law establishing the office of State Fire 
Marshal, that officer would have the right to adjudge a powder 
factory dangerous, and to order its removal, notwithstanding it 
had been licensed by municipal authorities. To cite another 



214 OPINIONS OF THE ATTORNEY-GENERAL. 

instance, it is expressly provided in Pub. Sts., c. 80, §§92 and 
93, that the lousiness of slaughtering, etc., may not be carried 
on without a license from the municipal authorities ; but the 
State Board of Health may, notwithstanding the license, adjudge 
the building occupied for such a purpose to be a nuisance, and 
restrain the carrying on of the business so licensed. Sawyer 
V. State Board of Health, 125 Mass. 182, 193. But, on the 
other hand, when the Legislature has by positive enactments 
declared that certain trades and occupations and acts are or are 
not a nuisance, such a declaration is conclusive upon the 
authority of its officers and upon the courts when dealing with 
the question of a nuisance. Saivyer v. Davis, 136 Mass. 239. 

An examination of the numerous statutes with relation to the 
manufacturing and storing of petroleum oil makes it evident 
that the Legislature has declared affirmatively that, within the 
conditions and under the limitations prescribed in the various 
statutes relating to the subject, the refining and storing of 
petroleum is not so dangerous to adjacent property as to be a 
nuisance, and liable to abatement either under any provision 
of the common law or by any officer acting under the authority 
of the State. 

Without reviewing all the legislation upon the subject, it is 
sufficient to say that by St. 1869, c. 152, re-enacted in Pub. 
Sts., c. 102, § 72, it is expressly and affirmatively provided 
that " crude petroleum, or any of its products, may be stored, 
kept, manufactured or refined " in l^uildings constructed as pro- 
vided in said section. This statute is still in force, and must 
be taken as declaratory of the policy of the Legislature upon 
the subject. It is further provided in Pub. Sts., c. 102, § 73, 
that petroleum shall not be manufactured or stored, even in the 
buildings described in said § 72, without a license from the 
municipal authorities, which license shall express the conditions 
and limitations under which the business may be carried on. 
By St. 1894, c. 399, additional restrictions are established and 
the issuing of licenses is more strictly guarded ; and it is therein 
provided that no building for the manufacture of petroleum oil 
or any of its products shall be erected unless the municipal au- 
thorities ' ' have granted a license therefor, prescribing the place 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 215 

where such building shall be erected," etc. But it is to be ol)- 
served in connection with this statute that Pub. Sts., c. 102, 
§ 72, providing explicitly how and in what manner and place 
petroleum may be stored, kept, manufactured and refined, is 
not repealed and is still in force. 

The statutes to which I have referred, together with others 
of the same general nature, must be taken as a regulation of the 
whole business of the refining of petroleum oil, and as a declara- 
tion that the Legislature reo;ards these regulations as sufficient 
to protect the public against the danger arising from the ex- 
plosive and inflammable nature of the business ; and that any 
establishment so conducted is not to be disturbed on account 
of the combustible material or inflammable conditions thus al- 
lowed, regulated and guarded ; and that in respect to such 
dangers the business shall not fall within the rules of common 
law. They declare in substance that, although the business of 
refining petroleum oil is attended with some dangers, it is on 
the whole of more advantage than disadvantage to the com- 
munity at large ; and, while recognizing the fact that under all 
circumstances the business is relatively dangerous, it is better 
for the Commonwealth to allow it to be carried on, provided 
the regulations made with respect to it are conformed to, than 
to permit a valuable and profitable industry to be excluded 
from the Commonwealth. 

This position is supported by the dictum in Commonwealth 
V. Kidder, 107 Mass. 188. In that case the defendant was 
indicted for maintaining an establishment for the refining of 
petroleum oil, and it was alleged in the indictment that the 
business was a nuisance by reason of the noisome and unwhole- 
some smoke, smell and stench which arose therefrom. The 
defendant relied upon the statutes relating to the manufacture 
of petroleum oil, to which I have referred. Mr. Justice Gray, 
in delivering the opinion of the court, referring to these stat- 
utes, says: "These enactments are manifestly intended to 
protect the puljlic against the dangers arising from the ex- 
plosive and inflammable nature of petroleum ; and, having 
regulated the whole subject in that aspect, they might well Ije 
deemed to protect any establishment, guarded as they direct. 



216 OPINIONS OF THE ATTORNEY-GENERAL. 

from indictment as a nuisance on account of such dangers 
only." 

I am of the opinion that the Legislature did not intend, by 
St. 1894, c. 444, § 5, to confer upon the Fire Marshal, or any 
other authority, the power to adjudge that an establishment for 
the refining of petroleum, which conformed to all the regula- 
tions provided therefor by the various statutes upon the subject, 
should be adjudged dangerous ; although independently of such 
legislation it might well be regarded to be a menace to adjacent 
property. 

I believe the foregoing sufiiciently answers the inquiries con- 
tained in your letter, so far as questions have yet arisen in the 
performance of your duties. 



Civil Service, — Secretary of Overseers of Poor of Lowell. 

The secretary of the overseers of the poor of the city of Lowell is not an 
officer whose selection comes within the civil service rules. 

To the Civil I do uot think that the secretary of the overseers of the i:)Oor 

Service Coiu- 

miseioners. of Lowcll is an officcr who should be appointed under the 
March 6. civil scrvicc rulcs. His duties are described in art. 4 of the 

regulations of said board. These regulations were adopted 
under the authority of St. 1894, c. 190, which provides that 
said officers "may appoint a secretary and superintendent and 
such other subordinate officers as the ordinances of the city 
may require, and may define the duties of said officers."* 

The regulations of the overseers of the poor, adopted in 
pursuance of said statute, provide in art. 4 thereof that the 
secretary's duties shall be "to make all such investigations as 
to the settlement of paupers as may be necessary to determine 
the rights of the city in relation thereto ; to attend to their 
removal to or from the city or to the several city institutions 
provided for the same, and in case of death to care for the 
burial. He shall inquire into the condition and means of sub- 
sistence of all who apply to the city for charity, and shall de- 
termine by such investigations who is and who is not entitled 
to the same. He shall visit the institutions at the city farm at 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 217 

least once a week, and oftener if the interests of the same 
require it. He shall visit all pauper cliildren, and others, if 
such there be, placed out by the board in private families or 
in other public institutions, at least as often as once in three 
months, and report quarterly to the board the condition of all 
such. He shall see to it that all regulations for the manage- 
ment of the pauper department and the several pauper insti- 
tutions therein are duly observed, and shall furnish to the 
board all such information as shall enable the clerk thereof to 
make out accurate accounts against the Commonwealth, or other 
cities and towns therein, for assistance rendered to paupers 
having settlements outside of Lowell. He shall attend all 
regular meetings of the board, and such special meetings as he 
shall be notified of and requested to be present at ; and he 
shall not be required, nor is it considered a part of his duty, 
to keep the records of the votes and doings of the board in 
meetings assembled, nor to perform any work in the way of 
keeping the accounts of the department or of a merely clerical 
nature, save such as is purely incidental to the performance of 
his duties as herein defined. He shall exercise supervision 
over the detail management of the afiairs of the department, 
outside of the control and management of the city institutions 
at the city farm, but shall have no power to make purchases 
for the department in excess of fifty dollars without a vote of 
the board or of the particular committee for which such pur- 
chases are made." 

It is obvious that these duties are not those of persons ' ' ren- 
dering services as copyists, recorders, book-keepers, agents, 
or any clerical, recording or similar service." Schedule A, 
civil service rules. Nor are they the duties of persons who 
are included in the class just quoted, who, " by reason of their 
rendering a limited amount of clerical service, are employed 
in positions requiring special knowledge of duties not clerical, 
and for which such special knowledge constitutes the chief 
qualification." Schedule A, class 3. 

Under the regulations of the overseers the person they des- 
ignate as secretary has in fact practically no clerical duties, but 
is the assent of the board in the administration of its afiuirs. It 



218 OPINIONS OF THE ATTORNEY-GENERAL. 

■would have been more correct to designate him as superin- 
tendent. But the designation is not primarily the test l)y 
which public servants are to be considered in reference to civil 
service rules. These rules look to the character of the service 
rather than to the designation of the office. I cannot believe 
that it was intended by the statutes relating to civil service that 
an officer holding so important, confidential and responsible a 
position must be selected by competitive examination. The 
character of his employment is such that no form of competitive 
examination would be so likely to secure an efficient officer as 
would be the case if the employing board had the right of 
personal selection. 

Whether the overseers had the right to assign such duties to 
an officer whom they designated as " secretary " may be a ques- 
tion attended with more difficulty, although I see no reason 
why, under the statutes, they may not assign such services as 
they see fit. Practically they seem to have devolved upon him 
the duties of superintendent, while retaining the title of secre- 
tary, whether for economical or other reasons I am not in- 
formed. This view is confirmed by the fact that, as I am 
informed, no such office as that of superintendent has been 
created. It cannot be said that they have imposed upon him 
any duties that they have not the right to. That being so, it 
may well be that the regulation was within their jurisdiction. 

But whether they acted beyond their powers in defining his 
duties does not appear to be a matter with which your honor- 
able board need be concerned. The officer in question, under 
whatever title, or whether rightly entitled, is not one required 
to be selected under the rules of the commission. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 219 



Board of Lunacy and Charity, — Jurisdiction to Release 
Persons committed to State Farm. 

The State Board of Lunacy and Charity has the power to release persons 
committed by the Superior Court to the State Farm for the offence of 
drunkenness. 

I have the honor to acknowledge your letter of the 6th inst., J°Luni^°'^and 
inquiring whether the Board "is authorized, under the pro- ^'^''"'^ • 
visions of Pub. Sts., c, 220, §§ GG and 6S, to discharge prisoners March;. 
committed to the State Farm for the offence of drunkenness T>y 
order of the Superior Court." 

Pub. Sts., c. 220, § 60, relates only to persons convicted 
under c. 207, § 29, but that section does not purport to punish 
the offence of drunkenness. The offence of being a "common 
drunkard," as described in § 29, is distinct from the offence of 
drunkenness, as described in §^ 2{y and 27. 

Pub. Sts., c, 88, § 4, gives the Board the same power of 
discharging persons confined in the State Workhouse (which I 
understand to be the State Farm, referred to in your letter) 
" for any cause that the county commissioners have in houses of 
correction." Under the provisions of c. 220, § 66, county com- 
missioners have the power only to release persons committed 
on conviction by an inferior court, and may not discharge a 
person committed by the Superior Court. Your Board, acting 
upon the case of a person to whom the provisions of § 66 are 
applicable, is similarly limited, and may not release persons 
committed by the Superior Court. 

But c. 220, § 68, authorizes the county commissioners to 
release a person committed to a house of correction for drunk- 
enness, whether committed by the Superior or an inferior court. 
Inasmuch as c. 88, § 4, gives your Board all the powers that 
county commissioners have in relation to houses of correction, 
it follows that the State Board may release persons committed 
by the Superior Court to the State Farm for the oftence of 
drunkenness. 



220 



OPINIONS OF THE ATTORNEY-GENERAL. 



Extradition, — Certification of Executive of demanding State, 
— Mistake in recording Indictment. 



To the 

Governor. 

1895 
March 7. 



A petition was presented to the Governor, stating tliat, in tlie case of W., who 
had been duly surrendered to the State of Connecticut as a fugitive from 
justice, the indictment upon which the rendition was made had been pro- 
curred either by fraud or mistal;e, and that the petitioner could present 
the sworn statement of every member of the grand jury to the effect that 
no indictment had been authorized by them against W., and praying that 
the Governor demand the return of W. 

It seems that such a statement made by members of the grand jury might be 
received in a local proceeding to show fraud or mistake in the recording 
of the indictment. But in a rendition case, when the certificate of the 
Governor of the demanding State accompanies the copy of the indictment, 
certifying the latter to be an authentic copy of an indictment found, the 
Governor of this Commonwealth has no legal right to go behind this cer- 
tificate and question the fact so certified. 

Replying to the verbal request of Your Excellency for my 
opinion upon the questions arising upon the petition of George 
E. Whitten, I have the honor to say, to wit : — 

The facts which the petitioner proposes to establish I under- 
stand to be as follow^s : on January 14, 1895, a requisition was 
received from the Governor of the State of Connecticut re- 
questing Your Excellency to surrender George W. Whitten as 
a fugitive from justice. Annexed to said requisition was a 
paper purporting to be an indictment found against the said 
Whitten by the grand jury for the county of New Haven, 
charoins: said Whitten wdth the crime of murder in the second 
degree, to wit, abortion resulting in the death of the victim. 
The requisition contained the necessary formalities required by 
law. Upon this requisition a warrant was issued by Your 
Excellency, authorizing the arrest of said Whitten and his sur- 
render to the agent of the State of Connecticut. He was there- 
upon arrested, and, after consulting counsel, he w^aived hearing 
and was taken l)y the agent of the State of Connecticut to New 
Haven, where he was arraigned upon said indictment, pleaded 
not guilty, was ordered to recognize, did recognize, and has 
returned to his home in Newton, Mass., where he now is. The 
time for trial of the indictment has not yet been fixed. 

The petitioner further claims that he can prove that said in- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 221 

dictment was never in fact authorized by the grand jury, and 
that, on the contrary, the said jury refused to indict him. He 
claims to be able further to show that the case was heard by the 
grand jury upon a charge against said Whitten and one Lee ; 
and that when the foreman reported to the prosecuting attorney 
(who in Connecticut does not go into the jury room during the 
proceedings) he was shown by the attorney an indictment con- 
taining the names both of Whitten and Lee. That the foreman 
thereupon stated to the attorney that the jury had indicted Lee 
but had refused to indict Whitten, and suo'o-ested that the form 
of indictment presented incorrectly stated the results of the 
delilierations of the jury. That thereupon it was suggested 
by the prosecuting attorney that the instrument should be 
amended to conform to the facts, and with that understandino- 
it was signed l)y the foreman. The name of Whitten was not 
in fact erased from the indictment, and it stands upon the file 
as an indictment against both Lee and Whitten, duly certified 
as required by law. 

Some of the members of the grand jury learned through the 
newspapers that Whitten had been arrested and arraigned upon 
an indictment against him, and in consequence of what they 
learned communicated with Whitten, and informed him that 
they had not indicted him. Subsequently a paper purporting 
to be signed by all the members of the grand jury was filed in 
the case and is now on file, in which the jurors say that they 
did not find a true bill against Whitten, and so understood 
their presentment ; and if a true bill was returned against him 
it was so returned by mistake. 

I am further informed that the prosecuting attorney does not 
assent to the foregoing facts, and insists upon trying Whitten 
upon the indictment. 

The petition of Whitten is that Your Excellency ' ' demand 
of the Governor of the State of Connecticut to show cause 
why they should further proceed under and by virtue of said 
extradition proceedings, and under and by virtue of such in- 
dictment against your petitioner." 

The first question proposed is whether, supposing the fore- 
going statements to be capable of proof, the defendant can be 



222 OPINIONS OF THE ATTORNEY-GENERAL. 

allowed to prove them, or whether he is bound by the record 
as it stands. In view of the conclusions to which I have come 
upon the second question proposed, as hereinafter stated, I do 
not deem it necessary to pass definitely upon this question. I 
have little doubt, however, that the petitioner may at the proper 
time and place be allowed to show that the indictment was 
rendered by mistake. I am aware that the proceedings not 
only of a traverse jury but of the grand jury are secret, and 
that it has often been held that no evidence can he offered 
which is in the nature of a disclosure either of the proceedings 
or the votes of jurors in secret session. But the mistake here 
charged is not with reference to the proceedings of the grand 
jury. It relates to what took place after they had concluded 
their deliberations and announced their result to the officer of 
the State. I do not believe that a mistake of fact as to what 
was communicated to the prosecuting officer may not be the 
subject of review by the court. It is not an inquiry, primarily, 
into the deliberations of the jury room, but only as to what took 
place after their deliberations were concluded. The case of 
Capen v. Stoughton, 16 Gray, 364, supports this distinction. 
In that case a sheriff's jury liy mistake signed the wrong blank 
and the verdict was accepted l)y the court. At a subsequent 
term the action was brought forward and the entry vacated. 
Affidavits of the jurors were admitted to show the mistake, and 
a new trial ordered. Bigelow, C. J., in delivering the opmion 
of the court, draws the distinction above indicated between an 
inquiry into what took place in the jury room and the investi- 
gation of an alleged mistake, in the nature of a clerical error, 
happening after the deliberations of the jury had ceased, and 
they had actually agreed upon their verdict. 

If this be so as to a traverse jury, it is much more so with 
reference to a grand jury, particularly in view of the fact that 
the findings of a grand jury are not usually announced in open 
court, but are filed with the clerk without being read. 

It seems to me plain, therefore, that this petitioner need have 
no fear that he will be debarred from substantiating his allega- 
tions in the court having jurisdiction of the case. It is not to 
be presumed that the court would try an indictment which was 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 223 

never in fact found by the grand jury, and which only became 
signed and filed through a misunderstanding with the prosecut- 
ing attorney. 

But upon the second question proposed, as to whether the 
petitioner may be allowed to prove his allegations l)efore Your 
Excellency, I am clearly of the opinion that under the statutes 
of the United States relating to extradition the certificate of the 
Governor of Connecticut is conclusive upon Your Excellency. 
The act of Congress provides (U. S. Rev. Sts., § 5278) that 
whenever the executive authority of any State demands a fugi- 
tive from justice " and produces a copy of an indictment found 
. . . charging the person demanded with having committed 
. . . crime, certified as authentic by the governor or chief 
magistrate of the State or Territory from whence the prisoner 
so charged has fled, it shall be the duty of the executive au- 
thority of the State or Territory to which such prisoner has 
fled " to take proceedings looking to the delivery of the fugitive 
to the agent of the State making the requisition. This statute 
prescribes the manner of proof of the judicial proceedings of the 
requiring State, to wit, that they shall be certified as authentic 
by the governor of tJiat State. 

It is a provision of the Constitution of the United States, 
Art. IV., § 1, that "Full fiiith and credit shall be given in each 
State to the public 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 proceed- 
ings shall be proved, and the efl'ect thereof." Congress has so 
provided in respect to requisitions, and the governor of the 
State upon which the demand is made is bound to accept the 
proof oflered as conclusive, if it comes within the requirements 
of the statutes. Kentucky v. Denison, 24 How. 'oQ, 105, 106 ; 
Ex parte Swearinger, 13 So. Car. 74, 76, 80 ; Roberts v. 
Riley, 116 U. S. 80. 

I cannot accept the contention of the petitioner, which is that 
the certificate of the Governor relates only to the accuracy of 
the copy, leaving the parties open to show that the indictment 
purporting to be found was not in fact found. The petitioner 
may be able to prove that it was never voted by the grand jury 



224 OPINIONS OF THE ATTORNEY-GENERAL. 

nor intended to be found ; but it was in fact returned into court 
with the attestation of the foreman, and entered upon the files 
in the presence of the grand jury. Tliis constitutes a finding, 
wdtliin the meaning of that word as used in the statute ; and, 
while the manner of the finding may be the subject of investi- 
gation by the court having jurisdiction of the case, it cannot be 
said that there is no indictment " found" by the grand jury. 

I am therefore of the opinion that Your Excellency has no 
power to grant this petition. 

The facts claimed, however, if established, present a case 
where injustice has been done and is likely to be done to a citi- 
zen of this Commonwealth. I cannot doubt that, if the allega- 
tions contained in the petition in question had been proved to 
the Governor of Connecticut, he would not have issued the 
requisition upon which Whitten was arrested. In view of this, 
it seems to be entirely proper for the Governor of the Common- 
wealth of Massachusetts to call the attention of the Governor 
of Connecticut to the statements made by the petitioner, and re- 
quest that he investigate the same, to the end that, if injustice 
has been done to a citizen of this Commonwealth, the Governor 
of Connecticut, in so far as it lies within his power, may redress 
the wrong;. 



Eminent Domain, — Land for Public Library, — Constitutional 

Law. 

The proposed act authorizing the trustees of the Berkshire Athengeum to take 
land for a free public library, is constitutional. 

To the I have the honor to acknowledge the receipt of your letter, 

Governor. ° . . 

1895 dated the 18th inst., asking me to " examine into the constitu- 

April 23. 

tionality of an act authorizing the trustees of the Berkshire 

Athenseum to take land for a free public library."* 

The act in question authorizes the trustees of the Berkshire 
Athenaeum to take any land, not appropriated to public uses, 
adjoining the land now owned by that corporation, as a place 
for the erection of a building to be used for its free public 

* Enacted as St. 1895, c. 301. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 225 

library. It contains furtlier and sufficient provisions for com- 
pensation to the owners of the land so taken. 

This act is a constitutional exercise of the right of eminent 
domain. 

The constitutional provision (Declaration of Rights, art. X.) 
is that " whenever the public exigencies require that the prop- 
erty of any individual should be appropriated to public uses, 
he shall receive a reasonable compensation therefor." The 
question whether the uses for which the property proposed to 
be taken are ' ' public " is a question for the determination of 
the courts; but the question of "exigency" is for the Legis- 
lature. Talhot V. Hudson, 16 Gray, 417. The question of 
what constitutes a public use, within the meaning of the Con- 
stitution, has been many times considered by the court. In 
general, it may be stated that property may be lawfully taken 
under the right of eminent domain where the government is 
supplying its own needs or is furnishing facilities for its citizens 
in regard to matters of public necessity, convenience or welfare. 
Cooley's Constitutional Limitations, 6th ed., p. 655. 

Thus it has ])een held that land may be taken for a highway, 
a town way, a public park, a railway, a town house or city hall, 
a school-house and a cemetery. I can find no express decision 
in relation to public libraries, but it is difficult to see why such 
an institution, which is educational in its nature, and of whose 
benefits all citizens may avail themselves, does not come within 
the rule. 

It is well settled that the power of exercising the right of 
eminent domain may be delegated to private citizens, or to 
bodies corporate, pul)lic or private. Hingham and Quincy 
Bridge and Turnpike Corp. v. Norfolk, 6 Allen, 353 ; Dorgan 
V. Boston, 12 Allen, 223. 



22^ OPINIONS OF THE ATTORNEY-GENERAL. 



Board of Lunacy and Charity, — Jurisdiction to release on Pro- 
bation, — Lyman School for Boys, — State Primary School. 

The State Board of Lunacy and Charity has no authority to release upon 
probation a boy committed to the State Primary School. 

Governor -"- ^^^^e tliG hoHor to acknowledge the receipt of a letter ad- 

1895 dressed to Your Excellency by the trustees of the State Primary 

April 23. >} 'i *' 

' and Reform School, dated April 14, and referred to me for 

reply. 

The letter states that a boy who had been committed to the 
Lyman School, and was afterwards transferred to the Primary 
School, by order of the trustees, has been ordered by the State 
Board of Health, Lunacy and Charity to be placed on probation 
with his family ; that the trustees, though they have complied 
with the order of the Board, question its right to act in the 
matter, and request the opinion of the Attorney-General as to 
whether the custody of such boys is with the trustees or with 
the State Board. 

The respective rights of the State Board on the one hand^ 
and of the board of trustees on the other hand, as to boys in the 
State Primary School, have been considered l)y me in previous 
opinions published in my last annual report,* and l^y my dis- 
tinguished predecessor in an opinion published in his report 
for the year 1893 ;f and I beg to refer the trustees to those 
opinions for a general consideration of the rights and powers 
of the two l)oards, although the precise question now presented 
was not considered in any of them. 

So far as the right to place boys who are in the Primary 
School in families outside is concerned, the statutes appear to 
be explicit. Pub. Sts., c. 89, § 6, provides in terms that the 
trustees may place in charge of suitable persons any of the chil- 
dren of the Primary School. I have been unable to find that 
any power is vested in the State Board to place boys in the 
Primary School out in families. In so far, therefore, as the 
State Board has assumed to place boys in the Primary School 

* See pp. 112 and 182, ante. t See p. 96, ante. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 227 

on probation without the approbation or consent of the trustees, 
I am of opinion that their action is unauthorized. 

The State Board has the general supervision over the school 
(Pub. Sts., c. 79, § 2) ; also of visitation (§ 5) ; also of ad- 
mission and discharge ( § 11). Upon petition of the trustees 
the State Board may return to the Lyman School a boy who 
has been previously transferred from the Lyman School to the 
State Primary School. Pub. Sts., c. 89, § 7. In general, 
therefore, it may be said that the duties of the State Board with 
reference to the Primary School are those of visitation, with the 
power of admission and final discharge. This is confirmed by 
the language of c. 89, § 6, above quoted, in which, after pro- 
viding that the trustees may place boys in the Primary School 
in charge of suitable persons outside, it is further provided that 
' ' the power of visitation and final discharge " shall remain with 
the State Board. 

The general power given to the State Board is one of '' gen- 
eral supervision over the State Lunatic Hospitals, the State 
Almshouse, the State Workhouse, the State Primary School, 
the State Reform School, and the State Industrial School for 
Girls." Pub. Sts., c. 79, § 2. This "general supervision," 
from an examination of the succeeding sections, appears to be 
one of visitation and inspection ; and when any specific powers 
as to the management of the institution is intended to l)e vested 
in the State Board, it is so stated in specific terms. See c. 79, 
§ 11; c. 89, §§ 5, 6, 7, 50 and 53. 

On the other hand, the direct government of the Primary 
School is vested in the trustees. Pub. Sts., c. 89, § 1. " The 
superintendent under the direction of the trustees shall have 
charge of the Primary School," etc. c. 89, § 3. The only 
limitation to this control, so far as the point in question is con.- 
cerned, is that "the power of visitation and final discharge is 
in the State Board." c. 89, § 6. I do not think the power to 
discharge includes the power or the right to place the boys in 
families on probation or otherwise, especially as that power 
is specifically entrusted to the trustees by c. 89, § 6, above 
quoted. 



228 OPINIONS OF THE ATTORNEY-GENERAL. 

I have considered the question proposed only with relation 
to the right of the respective boards to place the boys in the 
Primary School outside in families. As intimated in my opin- 
ion of last year, I know of no authority in either board to re- 
lease the boys generally upon probation. 



May 3. 



Board of Education, — Authority to incur Expenses to 

INVESTIGATE SCHOOL ATTENDANCE AND TrUANCY. 

Under the authority of Res. 1895, c. 47, the Board of Education may employ 
and pay an expert for special services in gathering data regarding school 
attendance, provided that the approval of the Governor and Council is 
obtained. 

'Tot'ie I have the honor to acknowledge your communication of 

Governor. O •^ 

1895 April 29, requesting my opinion whether, under the truancy 

resolve (Res. 1895, c. 47), it is legitimate to pay an expert for 
special services for a few months to gather truancy data under 
the direction of the Board of Education. 

The resolve in question directs the State Board of Education 
to investigate the subject of school attendance and truancy in 
the Commonwealth, "Said Board shall be allowed for all 
expenses actually incurred in the performance of this duty such 
sum as the Governor with the advice and consent of the Council 
shall approve." 

Payment of the incidental expenses of the Board incurred in 
the discharge of its duties is provided for by Pub. Sts., c. 41, 
§ 10. When, therefore, by this resolve the duties of the Board 
of Education were increased, the payment of the expenses in- 
curred thereby l)y the members of the Board in the discharge 
of their official duties was already provided for by statute. 
The resolve in question, however, in addition to the statutory 
provision already existing providing for payment, enacts the 
further provision above quoted, allowing the Board such a sum 
in the performance of this additional duty as the Governor and 
Council shall approve. The duty imposed upon them by the 
resolve is to investigate the subject of school attendance and 
truancy in the Commonwealth. If it had been intended that 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 229 

only the personal expenses of the Board should be paid, the 
additional provision in the resolve providing for certain pay- 
ments under the approval of the Governor would be entire 
surplusage. If in the investigation of this subject it is con- 
sidered necessary by the Board to secure an expert for special 
services for a few months, and the Governor and Council 
approve of such employment, there is no reason why under the 
terms of the resolve the expert should not be paid for his 
time as well as his expenses. By placing in the Governor and 
Council the power of approval or non-approval of expenses 
incurred in the performance of this duty, the Legislature has 
practically made the Governor and Council the official discre- 
tionary arbiter of the question whether any expenses incurred 
were properly incurred. The Board may properly incur any 
expenses in investigating the subject of school attendance which 
shall be approved by the Governor and Council. 



CoRPORATioK, — Bonds of Officers, — Savings Banks, — Insur- 
ance Companies. 

A statute providing that an officer of a corporation shall give bond " for the 
faithful discharge of his duty" is not complied with by the use of the 
ordinary form of bond given by fidelity insurance companies, and more 
particularly set forth in the context. 

No duty of supervision over the forms of bonds of such officers, except in the 
case of savings banks and insurance companies, devolves upon any de- 
partment of the Commonwealth. 

I have been requested by Your Excellency to examine the To the 
form of the bonds given by fidelity insurance companies carry- is95 
ing on business under the provisions of St. 1887, c. 214, § 61, ^f^- 
or St. 1894, c, 522, § 61, with a view of ascertaining whether 
the form adopted by them complies with the statutes relating 
to bonds to be given by treasurers of corporations and by pub- 
lic officers ; and to see if any duty of supervision over the form 
of bonds of such officers devolves upon any department of the 
Commonwealth. 

The form most commonly adopted creates a contract be- 
tween the fidelity insurance company and the employers of such 



230 OPINIONS OF THE ATTORNEY-GENERAL. 

officers, by which the company agrees that at the expiration of 
three months after proof of a loss it will reimburse to the em- 
ployer such pecuniary loss, if any, as may be sustained by the 
employer hy reason of fraud or dishonesty of its employee in 
connection with the performance of his duties, amounting to 
embezzlement or larceny, and which has been committed and 
discovered during the continuance of his term of office, and 
within three months from the death, dismissal or retirement of 
the employee. There is in some cases a further provision that 
the insurance company shall not be liable unless the employer 
shall prosecute to conviction the embezzling official. 

I am told that this form of bond has been adopted with the 
object of stating more specifically the contract of the guarantor, 
and obviating any contest in the courts as to the nature thereof. 
I am further informed that many corporations, public and pri- 
vate, have adopted this form of bond, and availed themselves 
of the contracts of these companies whenever they are required 
or desire to take bonds from their treasurers or other officers. 

The provisions of the statutes of Massachusetts in relation to 
bonds of treasurers of corporations almost without exception 
require that the treasurer shall give Ijond " for the faithful dis- 
charge of his duty ; " and the statutes in relation to bonds to be 
given l)y officers of the Commonwealth and of counties and 
towns require that the bonds shall be expressed to be for the 
*' faithful discharge of the duties" of "the officer giving the 
bond." 

I scarcely need say that the form of bond above referred to 
furnished by fidelity insurance companies is not a compliance 
with the statutes, which require bonds for the feithful discharge 
of duties, and is not equivalent to or a substitute for such 
bonds. It is also plain that St. 1887, c. 214, § Gl, was not 
intended to repeal or supersede the statutes prescribing the 
form of l)onds to be ofiven. 

In relation to the supervision ])y departments of the Com- 
monwealth over the form of bonds of Massachusetts corpora- 
tions, St. 1894, c. 317, § 14, provides that the l)onds of 
treasurers of savings banks shall be under the supervision of 
the Board of Savings Banks Commissioners. St. 1894, c. 522, 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 231 

§§ 7, 25, while not specifically calling for the supervision of 
the Insurance Commissioner over the bonds of treasurers of 
domestic insurance companies, yet gives power to the Commis- 
sioner to proceed against such corporations if they have failed 
to comply wnth the statutory provisions made in their behalf. 
I do not find that any supervision over bonds of corporate 
officers devolves upon any department of the Commonwealth 
as to any other classes of corporations. It may well be that the 
Legislature has regarded the matter of the bonds of corporations, 
in which the public generally are not interested, as being the 
subject of concern rather by the stockholders of such corpora- 
tions than the Commonwealth ; while, on the other hand, as to 
savings banks and insurance companies, in the official integrity 
of which many others than stockholders may be directly inter- 
ested, it has thought proper that the bonds of the treasurers of 
such corporations should be supervised under the direction 
of the Commonwealth. 

It is not within my province to discuss the wisdom of the 
policy of the Legislature, or even to recommend any change 
in existing legislation. If, however, it be a fact, as I am told, 
that bonds of these insurance companies are being largely 
availed of Ijy Massachusetts corporations, it may be well to call 
the attention of the Legislature to the matter, to the end that 
such forms of bonds may be authorized ; or, if not, that some 
authority be given to the Commissioner of Corporations to 
require compliance with the existing statutes relating to the 
form of bonds. 



Supplies for State House. 

Concerning various provisions in St. 1895, c. 284, an act in relation to tlie 
care and custody of the State House. 

1. The word "supplies," in St. 1895, c. 284, is to be con- Tothe 

^ ^ ' ' , I Auditoi 

strued as though the statute read " all repairs, improvements, isqs 
furniture, fixtures or [other like] supplies." It is familiar law ^^ 
that a general word connected by the conjunction "or "with 
specific words preceding is limited in its signification to the 



232 OPINIONS OF THE ATTORNEY-GENERAL. 

particular classes included in the words of special signiticatioa 
which precede it. 

Under this construction all the "supplies" of the character 
enumerated in your letter, such as "brushes, brooms and 
dusters, ice, spring water, toilet materials and the like " arc 
included in the statute under consideration. On the other 
hand, stationery, postage, printing and the like, which are 
otherwise provided for, usually in special appropriations for 
the several departments, are not so included. 

2. No part of an appropriation "for the care of the State 
House and grounds " can be used, under the provisions of St. 
1895, c. 284, for supplies furnished to departments outside of 
the State House and its annex. 

3. If, under the existing provisions of law, departments 
not domiciled in the State House building or its annex have 
authority to spend money for furniture, fixtures and other like 
supplies out of any appropriation which they have control of 
and for which they must approve the bills, I am of opinion 
that they still may do so, notwithstanding St. 1895, c. 284. 
Although that statute purports to require that a requisition 
shall be made upon the sergeant-at-arms and approved by him, 
it would be useless circumlocution to make such a requisition 
and require such an approval, if ultimately the bills are to be 
approved by the departments. The statute in question must 
be taken to apply to expenditures made out of appropriations 
over which the sergeant-at-arms has control. 



Substitute Judge, — Salary. 

Under the provisions of St. 1894, c. 377, a substitute judge is to be paid only 
for tlie days in which by holding court he actually performs the duties of 
judge. 

Auditor. ^^^ I'^ply to your letter of May 9 , I have to say as follows : — 

1895 1. I am of the opinion that St. 1894, c. 377, is not to be 

Mav 11. 

construed as intending to provide that a judge of probate from 

another county, who is designated by the register of probate of 
a county where there is a vacancy in the office of judge of probate 



HOSEA M. KNOWLTON, ATrORNEY-GENERAL. 233 

to perform the duties of judge in the latter county, shall receive 
a salary of fifteen dollars per day during the continuance of said 
vacancy after designation by the register, but that he shall be 
paid only for the days in which he actually performs the duties 
of judge, to wit, by holding court. 

2. The certificate of the register as to the number of days 
and the dates of the same, provided for by § 2 of said chapter, 
is not conclusive upon the Auditor. He may accept it as suffi- 
cient evidence of the services performed by the judge, or he may 
satisfy himself in any other proper way as to the truth of the 
matter. 



Member of Legislature, — Board op Education. 

The same person may lawfully hold the positions of senator of Massachusetts 
and member of the Board of Education. 

The same person may lawfully hold the office of senator of ^o^^ernor. 
Massachusetts and member of the Board of Education. is^s 

■ , May 14. 

Article 30 of the Declaration of Rights, which provides, among 

other things, that "the legislative department shall never exer- 
cise the executive and judicial powers, or either of them," is in- 
tended to prohibit the Legislature as a body from exercising 
executive or judicial duties. It has no application to the mem- 
bers of the Legislature. The limitations of the individual mem- 
bers of the several departments are carefully guarded by other 
provisions in the Constitution, to wit, c. 6, art. 2, and Amend- 
ments, art. 8. The specific prohibitions contained in the arti- 
cles quoted would l)e plainly unnecessary if art. 30 of the 
Declaration of Rights was intended to apply to individuals 
rather than to departments. 

There is nothing in the statutes which prevents the appoint- 
ment of a member of the Legislature upon the Board of Edu- 
cation. 



234 OPINIONS OF THP: ATTORNEY-GENERAL. 



Tuberculous Cattle, — Value, — Police Power, — Constitutional 

Law. 

A bill providing for the seizure and destruction of diseased cattle, which 
among its other provisions provides that the owners of cattle afflicted 
with tuberculosis shall be paid the full value thereof for food and milk 
purposes, without taking into consideration the fact that the animal is so 
afflicted, is in this respect unconstitutional. 

Governor. I liavc the lionor to acknowledge your letter asking my 
1895 opinion upon the constitutionality of certain sections of Senate 
Bill No. 261, entitled "An act relative to inspection of domes- 
tic animals," * and to reply thereto as follows : — 

My attention is particularly called to §§ 3 and 10 of the bill. 
These sections respectively amend St. 1894, c. 491, §§10 and 
45, relating to contagious diseases amono; domestic animals. 
Section 3 provides, among other things, that the inspectors 
provided by St. 1894, c. 491, may inspect the carcass of all 
slaughtered animals, and all meats, fish, vegetables, produce, 
fruits or provisions of all kinds ; and whenever the carcass of 
any such animal is, in the opinion of such inspector, diseased 
or unfit for food, or when such meat, fish, vegetables, produce, 
fruit or provisions are found on inspection to be tainted, 
diseased, corrupted, decayed or unwholesome, for any cause, 
the inspector shall seize and destroy the same forthwith. The 
section further provides for an appeal to the Board of Health, 
who have, upon such appeal, the jurisdiction of the inspector ; 
with the further provision that if said Board finds that the sub- 
stance seized is not unsound or unfit for food, it may order the 
same to be returned to the owner. 

The section further provides that all moneys received by said 
inspectors or Board of Health for property disposed of as afore- 
said shall, after deducting all expenses incurred by reason of 
said seizure, be paid to the owner of said property ; "^;roy«/ec/, 
however, that whenever the carcass or meat of any neat cattle 
is destroyed under the provisions of this section by reason 
of the same being infected l)y tuberculosis, upon the owner 

* Amended and enacted as St. 1895, c. 496. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 235 

thereof furnishing to the Board of Cattle Commissioners satis- 
factory evidence of the existence of such disease he shall receive 
the full value of the same for food purposes, loithout taking 
into consideration the fact that the same is then infected toith 
such disease." 

Section 11, amending St. 1894, c. 491, § 45, provides that 
whenever the Board of Cattle Commissioners, after examina- 
tion of a case of contagious disease among domestic animals, 
become satisfied that the public good requires it, they may 
cause such animals to be killed without appraisal or payment 
and without expense to the owner. The section further pro- 
vides that "if it shall subsequently appear upon post-mortem 
examination or otherwise that said animal was free from the 
disease for which it was condemned, a reasonable sum therefor 
shall be paid to the owner thereof by the Commonwealth ; 
provided, however, that whenever any cattle afflicted with the 
disease of tuberculosis are killed under the provisions of this 
section, the full value thereof at the time of slaughter for food 
or milk purposes, ivithout taking into consideration the fact 
that the animal at the time of slaughter is then afflicted with 
such disease, shall be paid to the owner thereof out of the 
treasury of the Commonwealth if such animal has been owned 
within the State six months continuously prior to its being 
killed.-' 

These provisions, so far as they authorize proceedings against 
diseased cattle, tainted food, etc., are clearly within the police 
powers conferred upon the Legislature by the Constitution. 
The constitutional question, however, arises upon the provision 
in each section, that, when meat unfit for food by reason of 
tuberculosis is seized, or cattle afflicted with the same disease 
are killed, the owner shall receive full value of the carcass for 
food or milk purposes, "without taking into consideration the 
fact that the same is then infected with such disease." 

It may well be assumed that a carcass which is infected or an 
animal which is afflicted with tuberculosis has practically no 
value for food or milk purposes. That such was the intention 
of the Legislature is clearly deducible from the provisions of 
St. 1894, c. 491. Section 10 of that statute, as amended by 



236 OPINIONS OF THE ATTORNEY-GENERAL. 

the l)ill in question, authorizes the destruction of a carcass 
whenever, in the opinion of the inspector, it is diseased or unfit 
for food. Section 15 of the same chapter makes it a penal 
offence for any one to sell, or to have in his possession with 
the intent to sell, for food, any diseased animal or any diseased 
carcass. St. 188G, c. 318, § 2, also makes it a penal offence 
to sell the milk of a diseased cow. The meat or milk of a cow 
which has been pronounced unfit for sale by the Legislature, 
and the sale of which is made a criminal offence, cannot be 
regarded as having any market value. 

The sections under consideration, therefore, must be taken 
to authorize and require the payment to the owner of a diseased 
cow or an infected carcass, which, by the determination of the 
Legislature, is worthless, a value equivalent to the value of 
sound cattle or sound meat. This is not compensation. It is 
a gift. 

If it were provided that the Board having jurisdiction of the 
subject-matter might condemn all suspected meat or kill all 
suspected cattle, leaving it uncertain whether the disease ex- 
isted, the Legislature might reasonably provide, in the exercise 
of the police power given to it by the Constitution, that com- 
pensation for cattle so destroyed should be paid without deter- 
mining the question of the existence of disease. But the statute 
in question is not of that character. It provides for a definite 
adjudication as to the existence of disease or otherwise. If this 
adjudication is made in the first instance by the inspector or 
commissioners, an appeal may then l)e had to a board of arbitra- 
tion, or even to a jury, so that the question of the existence of 
disease is capable of judicial determination. 

This fact having been determined, the bill provides that the 
owner shall receive "reasonable" compensation for cattle that 
prove to be sound, and which were killed under mistake by the 
officers. This is as it should be. But, on the other hand, in 
respect to cattle as to which there is a final determination that 
they are diseased, and therefore worthless for food and milk 
purposes, the bill provides that this fact shall be disregarded in 
estimating the damage to the owner, although it is a fact which 
destroys their value. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 237 

The Constitution, c. 1, § 1, art. 4, authorizes the Legislature 
to impose taxes "to be used and dis})osed of . . . for the 
pul)lic service." Tliis provision, which if not in words is in 
substance in the constitutions of most of the States, has l)een 
uniformly construed hy the courts to restrain the Legislature 
in the exercise of its rights of taxation to such purposes as are 
public in their nature, in distinction from expenditures which 
are for the l)enefit of individuals only. Thus it has been held 
that under this clause a State has the power to spend money 
for the expenses of judicial, legislative and executive officers ; 
for the improvement of coasts and harbors ; for the construction 
of highways, sewers, aqueducts, public educational institutions 
and the support of paupers. On the other hand, it does not 
authorize the raising of money by taxation to be divided among 
the inhabitants of a town ; to make a gift to an individual for 
his own private use ; to issue bonds and loan the proceeds on 
mortgage to the owners of land the buildings on which had 
been burned by fire ; to loan money to a corporation to aid it 
in establishing a manufacturing establishment within the limits 
of the town making the loan ; to assist individuals to carry on 
particular industries within a town ; to aid a private school ; 
to supply needy farmers with seed ; or to refund to individuals 
the amount paid by them to procure substitutes in the civil 
war. Among the many cases in which these distinctions have 
been considered may be cited: Loioell v. Boston, 111 Mass. 
454; Loicell v. Oliver, 8 Allen, 247, 255; Loan Association 
V. Topel^a, 20 Wall. 655; AUen v. Jay, 60 Maine, 124; State 
V. Osahee, 14 Kan. 418 ; Opinion of the Justices, 150 Mass. 
592 ; Morse v. Stocker, 1 Allen, 150 ; Freeland v. Hastings, 
10 Allen, 570; Concord R.R. v. Greeley, 17 N. H. 47; 
Sharpless v. Mayor of Phila. 21 Penn. St. 147; }V7riting v. 
Sheboygan, etc., R.R. Co., 25 Wis. 167; People v. Salem, 
20 Mich. 452 ; Mead v. Acton, 139 Mass. 341 ; Hanson v. 
Vernon, 27 Iowa, 28. 

The general principle upon which these cases are decided is 
that to constitute a public use there must be a direct relation 
between the primary object of the appropriation and the public 
good. The object of expenditure must be specifically of a public 



238 OPINIONS OF THE ATTORNP:V-GKNERAL. 

nature, and distinct even from such public benefits or interests 
as arise incidentally from benefits conferred upon individuals. 

It is not enough that it may be wise, or incidentally for the 
interests of the public, that the individuals should l)e benefited. 
As was said by AVells, J., in LoiceJl v. Boston : "The promo- 
tion of the interests of individuals, either in respect of property 
or business, although it may result incidentally in the advance- 
ment of the public welfare, is, in its essential character, a private 
and not a public object. However certain and great the result- 
ng good to the general public, it does not, by reason of its com- 
parative importance, cease to be incidental. The incidental 
advantage to the public, or to the State, which results from the 
promotion of private interests, and the prosperity of private en- 
terprises or business, does not justify their aid by the use of 
public money raised by taxation, or for which taxation may be- 
come necessary." 

Simply stated, the Legislature under our Constitution has no 
right to take money by taxation from all to enrich one ; and it 
is of no consequence how meritorious upon general considera- 
tions the position of the recipient may be. Money raised by 
taxation can be used for public purposes only. 

Nor is the Legislature the final judge of whether the purpose 
be public. The extent and value of the public use and the wis- 
dom and propriety of the appropriation are matters exclusively 
within the province of the Legislature ; but whether the ex- 
penditure proposed is for private or for public objects, in the 
legal sense, is for the determination of the judicial power. 
Lowell Y. Boston, 111 Mass. 454, 463, 473. 

Applying these principles to the bill in question, I am of the 
opinion that, in so far as it requires the payment of a fictitious 
value in all cases to the owners of cattle killed as diseased, and 
consequently worthless, it is an appropriation of public money 
for the benefit of individuals. It takes money from the com- 
mon fund contributed by all citizens, and confers it as a gift 
upon such owners of diseased cattle. This being so, it is an 
unauthorized exercise of the power of taxation. 

It is to be observed that the constitutionality of a measure 
does not depend upon its being a bill directly providing for 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 239 

the imposition of a tax. The right of the Legislature to place 
such an obligation upon the State implies the right to raise 
money by taxation for the payment of obligations thereby 
incurred. Lowell v. Boston, 111 Mass. 454, 460. It is well 
settled that the disposition of money raised by the Legislature 
by means of a tax is limited to the purposes for which such a 
tax may constitutionally be levied. Lowell v. Oliver, 8 Allen, 
247, 255. If the Legislature has the constitutional power, 
therefore, to place an obligation upon the Commonwealth, it 
must first ha\^e the legal right to raise money by taxation to 
meet this obligation. Expenditures which must be provided 
for by taxation are to be judged of upon the same principles 
which govern the right of taxation. 

It ma}^ be said that the bill in question is an exercise by the 
Legislature of the police power of the Commonwealth, and as 
such may be sustained. There is no doubt of this proposition 
as to the main provisions of the bill ; and I am not called upon 
to consider whether the bill as a whole is unconstitutional, 
even if the provisions under consideration are adjudged bad. 
But the exercise of the police power of the Commonwealth 
and the promotion of public health may be lawfully exercised 
in the fullest manner without gifts to private individuals. The 
Legislature may in its wisdom determine that it shall l)e so 
exercised without compensation. Miller v. Horton, 152 Mass. 
540. Or it may provide that where property is taken or 
destroyed for objects which are in promotion of the public 
good, such as prevention of disease, the prevention of fire and 
the like, compensation therefor shall be awarded to the person 
sufiering thereljy. 

But this is entirely independent of the principal objects of 
the bill in question. It was not necessary to the jurisdiction 
of the Legislature that the sections under consideration be 
incorporated in the bill. All its main provisions were within 
the constitutional power of the Legislature. These sections 
cannot therefore be defended as an essential part of the scheme 
proposed by the bill for the promotion of public health. 

It may be further suggested that the Legislature has the 
right to order such compensation as it deems reasonable to 



240 OPINIONS OF THE ATTORNEY-GENERAL. 

individuals for the inconvenience and annoyance of having 
their cattle seized and destroyed, especially upon suspicion, 
and when it is not certain that they are tainted. It is not 
necessary to determine whether the Legislature might not so 
provide, or even whether it might not establish some reasonable 
gross amount to be ]:)aid every owner whose property was 
taken under the provisions of the bill. The difficulty with the 
provision in (juestion is that it professes in explicit terms to 
require its officers to give to the cattle owner a sum of money 
which by other provisions of the same act he clearly has no 
right to, and for which the Commonwealth, either in law or in 
equity, is under no obligation to him. 

Upon the foregoing principles, and upon such consideration 
as I have been aljle to orive the matter in the brief time allotted 
to me, I am constrained to advise Your Excellency that the 
provisions of the bill in question which provide that owners of 
cattle shall be paid the full value thereof for food and milk 
purposes, without taking into consideration the fact that the 
animal or carcass is at the time of taldng infected or afflicted 
with tuberculosis, is unconstitutional. 



June 20. 



Fight, — Sparring Exhibition. 

Any contest which tends to result in substantial injury to one or both of the con- 
testants, by reason of the character of the weapons used and the methods 
of their use, is a fight within the meaning of Pub. Sts., c. 202, § 15. 

To the Chief of J havc been requested to consider the scope of Pub. Sts., c. 

District Police. ^ '■ 

1895 202, § 15, relating to fights hy appointment; and especially 

how far the statute applies to what are known as public athletic 
contests, or sparring exhibitions. 

The statute provides substantially that "Whoever, by previ- 
ous appointment or arrangement, engages in a fight with another 
person," shall be guilty of felony. It has been suggested that 
this statute, which was originally enacted in St. 1849, c. 49, 
§ 1, was passed with special reference to what are commonly 
called prize fights. Public sparring contests, as now usually 
conducted, are said to be of recent origin, and it may be, there- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 241 

fore, that prize fighting was more especially in the minds of 
those who enacted the law. But a statute is to be construed 
according to the obvious import of its terms. Whatever is 
plainly prohibited thereby must be regarded as unlawful, 
whether specifically in contemplation of the Legislature at the 
time of the enactment of the statute or not. 

The construction of the statute depends upon the significa- 
tion of the word "fight." This word is defined as " an attempt 
by adversaries to injure or disal^le each other ; " or, by another 
authority, as "a contest with natural or other weapons." It 
may be claimed that the animus of the contestants is an essen- 
tial feature in determining whether a contest is a fight ; but if the 
definitions above quoted are accurate, and I see no reason to 
doubt that they are, the test of what constitutes a fight is not so 
much the spirit in which it is engaged as the purpose. If the 
object of the contestant is to injure or disable, by means of 
natural or other weapons, and the contest is engaged in for 
that purpose, it must be regarded as a fight. 

While the disposition of the contestants towards each other 
may be evidence in determining for what purpose the contest is 
engaged in, it is not conclusive. It is conceivable that there 
might be even a prize fight in which the contestants were on 
friendly terms each toward the other. On the other hand, 
there might be a contest with protected gloves in which no 
damage could reasonably be expected, where, from rivalry or 
other causes, the enmity of the parties would contribute the 
chief interest to the exhibition. 

The question, therefore, whether a given contest is a "fight" 
is one of fact, depending upon all the circumstances. If the 
weapons used, whether fists or foils, are so protected that no 
amount of violence could reasonably be expected to inflict sub- 
stantial injury, such a contest would not he, a fight. But if the 
weapons used are unprotected, or so little protected that the 
obvious tendency of their use is to disable, wound or injure 
the opponent, such a contest would come within the scope of 
the statute. 

I am of opinion that any contest which, in the opinion of the 
jury, tends to result in substantial injury .to one or both of the 



242 OPINIONS OF THE ATTORNEY-GENERAL. 

contestants, by reason of the character of the weapons used and 
the method of their use, is a fight within the meaning of the 
statute, and, if engaged in by appointment, is within the pro- 
hibition of the statute. 



June 21. 



Member of Congress, — Death, — Election to fill Vacancy. 

Upon the death of a member of Congress representing the Commonwealth it 
is the Governor's duty and right forthwith to issue a warrant for the 
election of a member to fill the vacancy. 

Governor ^ Understand that my opinion is desired as to the proper 

1895 course to be taken by the Governor in reference to the vacancy 

in the sixth Congressional district. The question upon which 
my opinion is desired is as to when a precept for an election 
should issue. 

It has been suggested that the Governor has no power to act 
until informed by Congress that a vacancy exists. I do not 
concur in this view. The fact of death is one that usually re- 
quires no particular or formal mode of proof. This, of course, 
does not refer to cases where death is in dispute. Ordinarily, 
the fact of death is recognized by judicial tribunals on their 
own motion, or upon the suggestion of some person, amicus 
curke. Even probate courts, whose jurisdiction depends upon 
the fact of death, have never required proof of the fact. The 
same principle holds in the Executive department, which is 
frequently called upon to make appointments to fill vacancies 
caused by death. The death of a person is matter of common 
knowledge, of which all persons have the right to take cog- 
nizance. This rule applies to the existing vacancy. The Gov- 
ernor has the right to know, what every one else knows, that 
the person who was elected to the office has deceased, and that 
there is a vacancy. In fact, the Governor has already taken 
official cognizance of the death of General Cogswell in a com- 
munication to the Legislature announcing the fact. It cannot 
be necessary for the Executive department to be informed hy 
Congress of a fact already known and officially acted upon by 
that department. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 24^ 

I am of opinion, therefore, that it is the Governor's right and 
duty forthwith to issue a warrant for the election of a meml)er 
of Congi'ess to fill the vacancy occasioned by the death of Gen- 
eral Cogswell. 

St. 1893, c. 417, § 216, provides that, in case of failure at 
an election to choose a representative in Congress, the Gov- 
ernor shall cause precepts to be issued calling for a special 
election therefor on such day as he may appoint. It further 
provides that " If a vacancy occurs in the office of representa- 
tive in Congress, the Governor shall in like manner cause pre- 
cepts to be issued for an election of representative in Congress 
in the district in which the vacancy occurs." It is within the 
power of the Governor to appoint the day of election. He 
may either direct a special election to be held, or direct that it 
shall be held upon the day of the annual State election. Inas- 
much as it is not likely that Congress will convene until the first 
Monday of December, the latter course is probably the better. 

The precedents are in support of this view. The Hon. James 
Buffington was elected a member of the House of Representa- 
tives of the 44th Congress at the annual election in November, 
1874. He died March 6, 1875, before the organization of the 
Congress to wliich he was elected. The Governor issued a 
precept for an election to l)e held to fill the vacancy, and an 
election was held in November, 1875. This election was had 
under the provisions of Gen. Sts. c. 9, § 6, but its provisions 
are substantially the same as the statute now in force. 



Civil Service, — Veterans' Preference Act. 

The provisions of rule X. of the civil service rules, enforcing requirements 
of age, height and weight in certain classes of the public service, apply 
to veterans seeking examination and preference under St. 1895, c. 501, § 1. 

The age limit established by the civil service rules is to be applied to all 
applicants for appointment under § 2, except applicants for appointment 
to the police force of any city other than Boston and applicants for 
appointment to the district police force. 

St. 1884, c. 320, § 3, and § 4 as amended by St. 1888, c. 334, are applicable to 
the cases of all veterans who file an application in conformity with the 
requirements of St. 1895, c. 501, § 6. 



244 OPINIONS OF THE ATT0RNP:Y-GENERAL. 

Veterans seeking appointment under St. 1895, c. 501, are subject to the pro- 
visions of rule VII. of the civil service rules. 

A reappoiutmeut to office may be made in accordance with rule XL. of the 
civil service rules, although a veteran has applied for the place, and has 
complied with the requirements of St. 1895, c. 501. 

Rule XLIII., providing for promotion by examination, is to be enforced 
against a veteran now on the force seeking a higher grade by virtue of 
St. 1895, c, 501. 

Rule XXXVI., providing that where there is no eligible list a provisional 
appointment may be made by examination, cannot be enforced in any 
case where a veteran applies, under the provisions of St. 1895, c 501, for 
appointment without examination. 

A veteran applying for the position of laborer in Boston or other city, in the 
absence of any rule of the Civil Service Commission prescribing an age 
or other qualification, must be certified and employed in preference to all 
other persons. 

tiervk^e Com- ^ havQ the hoiior to acknowledge the receipt of your letter 

'ms""*"^ of June 21, asking my opinion on the construction of St. 1895, 

Julys. c. 501, entitled "An act relative to the preference of veterans 

for employment in the public service," and to reply thereto as 

follows : — 

The statute in question is obviously amendatory of existing 
legislation. It follows that it operates to change or modify 
previous laws upon the same suliject only so far as it does so 
expressly or ])y implication. The statute further recognizes 
the rules of the commission which have been approved by the 
Governor and Council. The statute, therefore, is to be con- 
strued in view of the existing legislation and of the rules 
established under it. 

Keeping in view the statutes already enacted, and the rules 
established by the authority of the same, I proceed to answer 
the questions contained in your letter specifically. 

'■^ First. Under civil service rule X. there are certain re- 
quirements of age, height and weight in certain classes of the 
public service. For instance, in the police force of Boston 
every applicant must be less than thirty- three years of age. 
See rule X., pages 55 and bQ of the report of the Civil Service 
Commission, October, 1894. The first section of the recent 
act requires the commissioners 'to cause the names of veterans, 
who having been examined and found qualified for appoint- 
ment to the position for which they have applied,' to be placed 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 245 

upon the eligible list, and to be certified in preference to 
others ; and provides that veterans so certified ' shall be ap- 
pointed in preference to those who are not veterans,' excepting 
women. Under this statute provision, are the present require- 
ments of civil service rule X., fixing an age limit in the desig- 
nated classes, applicable to veterans applying for examination 
under the section, or has any veteran, without regard to any 
absolute requirements as to age, weight or height, a right to 
apply for and demand examination, and certification if he 
passes the examination ? In other words, do the requirements 
of civil service rule X. apply to veterans seeking examination 
and the preference under § 1 of the act ? " 

The section referred to in this question is an amendment of 
St. 1884, c. 320, § 14, cl. 6. The clause as it originally stood 
gave a preference in the appointment to ofiice and promotion 
in office (other qualifications being equal) to veterans ; but it 
had reference only to appointments that were made after exam- 
ination . The statute of this year strikes out the words ' ' other 
qualifications being equal," and makes it the duty of the Civil 
Service Commission to cause the names of veterans who have 
been examined and found qualified for the position to which 
they have applied to be put upon the eligible list in the order of 
their respective standing, above the names of all other persons. 

This section is not to be construed as inconsistent with the 
provisions of civil service rule X., which was in force at the 
time of its enactment and is still in force, which rule prescribes 
certain requirements as to age, height and weight. These re- 
quirements are to be taken to be still in force, and applicable 
to the case of persons coming within the provisions of § 1. 
The purpose and eff*ect of the amendment was merely to repeal 
the provision in cl. 6, that other qualifications should lie equal, 
and to prefer all persons included within the provisions of said 
section to all other persons otherwise qualified for the oflSce. 

" Second. Under § 2 of the recent act, veterans who apply 
for employment under civil service rule XII. (that is, without 
examination) shall be preferred for certification and appoint- 
ment in preference to all other applicants not veterans except 
women. The section then contains a proviso 'that the age 



246 OPINIONS OF THE ATT0RNEY-GENP:RAL. 

limit now established by the civil service rules, with regard to 
appointments in the police and prison service and fire depart- 
ments, may be applied to such appointments.' This ' age limit 
now established' is contained in rule X., above referred to. 
You will notice that in that rule (cl. c) it is provided that ' ap- 
plicants for appointment to the police force of any city other 
than Boston must be not less than twenty-two nor over forty 
years of age ; and applicants for appointment to the district 
police force must.be not less than twenty-two nor over fifty-five 
years of age at the time of filing the application ; provided, 
Jiowever, that this limitation as to age shall not apply to per- 
sons who served in the army or navy of the United States in 
time of war, and have been honorably discharged therefrom.' 
With the recognition in this section of the act of the ' age limit 
now established by the civil service rules,' and with this ex- 
emption in the rule of an age requirement of veterans applying 
for positions on the police force of cities outside of Boston, and 
on the district police force, can the age limit provided in this 
rule be applied to veterans applying under § 2 for appointment, 
without examination, to such positions?" 

Section 2 referred to in the foregoing question relates to vet- 
erans who desire appointment to office or employment in the 
service classified under the civil service rules without having 
passed examination. The age limit referred to is to be found 
in the various divisions and clauses of rule X. of the civil ser- 
vice rules. Clause c in said rule provides that " in class 3 ap- 
plicants for appointment to the police force of any city other 
than Boston must be not less than twenty-two nor over forty 
years of age, and applicants for appointment to the district 
police force must be not less than twenty-two nor over fifty-five 
years of age at the time of filing the application ; jwovided, 
hoivever, that this limitation as to age shall not apply to persons 
who served in the army or navy of the United States in time 
of war, and have been honorably discharged therefrom. In all 
cases in this class, except the inspection force of the district 
police, applicants must be not less than five feet seven inches 
in height and weigh not less than one hundred and thirty-five 
pounds." 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL 247 

Construing § 2 of the act in connection with the proviso in 
the clause above quoted, I am of opinion that, in order to give 
proper effect to the language of said § 2, it must be held that 
the age limit established hy the civil service rules is to be ap- 
plied to all applicants for appointment under § 2, except in the 
case of applicants for the appointment to the police force of any 
city other than Boston, and applicants for appointment to the 
district police force, these being exempt by the terms of cl. c, 
above quoted. 

" T/ih'd. The civil service act (St. 1884, c. 320) provides, 
in §§ 3 and 4, that no person habitually using intoxicating bev- 
erages to excess, and no vendor of intoxicating liquor, and no 
person within one year after conviction of an offence against 
the laws of this Commonwealth, shall be appointed to, or re- 
tained in, any office. In view of the new act, and especially 
of the provisions of § 6, defining what shall be a sufficient 
* application ' by a veteran, can the above-cited provisions of 
the civil service act be applied to, or enforced against, a vet- 
eran filing an application which conforms to the requirements 
of this Gth section of the act ? " 

I am of the opinion that St. 1884, c. 320, § 3, and § 4 as 
amended by St. 1888, c. 334, are applicable to the case of all 
veterans who file an application in conformity with the require- 
ments of St. 1895, c. 501, § 6. Upon the principle already 
stated, inasmuch as the act under consideration is amendatory, 
all existing legislation, including the civil service rules, are in 
force, excepting so far as they are modified or repealed by the 
statute of this year. There is nothing in § 6 of the latter act, 
or in any part of the act, which repeals or modifies in any way 
St. 1884, c. 320, §§ 3 and 4. 

'■'■ Fourth. Civil service rule VII. requires, as an absolute 
qualification, residence of a year in the Commonwealth, and 
where city service is sought, of six months in such city, before 
filing the application. Can this rule be applied to veterans seek- 
ing examination, or appointment without examination, under 
this new act, or does the act alirogate the rule as to them ? " 

This question differs from question 3 in that there were cer- 
tain prohibitions contained in statute of 1884, to which said 



248 OPINIONS OF THE ATTORNEY-GENERAL. 

question referred ; while, on the other hand, the present ques- 
tion relates to rule VII. of the civil service rules, which pre- 
scribes certain qualifications for appointment which are not 
found in any existing statute. But I cannot doul)t that the 
Board clearly had the right to adopt rule VII. under the pro- 
visions of St. 1884, c. 320, § 2, and that the Governor and 
Council could properly approve it. The question is, whether 
persons seeking appointment under the act of 1895, either with 
examination under the provisions of § 1 or without examina- 
tion under the provisions of § 2, are subject to the provisions 
of this rule. There is no reference to any rule of the civil 
service rules in § 1. In § 2 there is a direct reference to the 
civil service rules, with the proviso which has already l^een 
recited. The exact language of § 2 is as follows: "Veterans 
who have made application for appointment in the public ser- 
vice in accordance with the second section of rule twelve of 
the civil service rules shall be preferred for certification and 
appointment in preference to all other applicants not veterans, 
exce])t women ; provided that the age limit now established 
l)y the civil service rules with regard to appointment in the 
police and prison service and fire departments may be applied 
to such appointments." 

The second section of rule XII. of the civil service rules 
provides as follows: "Any veteran desiring, under St. 1887, 
c. 437, appointment to office or employment in the service 
classified under the civil service rules without having passed 
any examination provided therein, shall file an application for 
said appointment, stating on oath, first, his full name, resi- 
dence and post-office address ; second, the office he seeks ; 
third, that he desires appointment without having passed any 
examination provided for by the civil service act or the rules 
thereunder ; fourth, his services in the army or navy of the 
United States in time of the war of the rel)ellion, and discharge 
therefrom ; fifth, that he has not suflfered loss of limb, or other 
physical impairment, which incapacitates ; sixth, his citizen- 
ship ; seventh, that he does not habitually use intoxicating 
beverages to excess, and is not a vendor of intoxicating liquor; 
eighth, that he has not within one year been convicted of any 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 249 

offence against the laws of this Commonwealth. Such applica- 
tion must be supported by certificates that the applicant has all 
the qualifications required by law of veterans. Such applica- 
tion, if for an office or employment in the service of the Com- 
monwealth or of the city of Boston, shall be filed in the office 
of the Commissioners in Boston ; if for an office or employ- 
ment of any city other than Boston, it shall be filed with the 
local Ijoard of examiners in such city." 

This rule makes it incumbent upon the veterans desiring em- 
ployment without passing examination to conform to the second 
section of rule XII. of the civil service rules, and when they 
have done so they shall be preferred for certification and ap- 
pointment above all other applicants not veterans, except 
women, with the limitations contained in the proviso. This 
being so, it follows, upon the principles already stated, that 
applicants are subject to rule VII. The same is true of appli- 
cants under § 1. 

' ' Fifth . In several of the classified offices there is a fixed 
term of office. District police officers hold for three years. 
In six of our cities, Lynn, Salem, Newburyport, Fitchburg, 
Taunton and Northampton, the police officers hold for the term 
of one year. By recent statute the term of office of the police 
officers of Haverhill is fixed for four years. In recognition of 
this fact, civil service rule XL. provides : ' No examination 
shall be required upon a reappointment of any person to the 
same office.' This rule has had its intended effect in allowing 
the Governor to reappoint district police officers, and the 
mayors of these cities to reappoint police officers without ex- 
amination, or civil service application on the part of the incum- 
bent. The question now arises, and is addressed by us to you : 
Can such reappointment, if of a person not a veteran, be made, 
if there is under this act any veteran who has applied for the 
position and complied with the requirements of the act ? " 

Rule XL. provides that "no examination shall be required 
upon the reappointment of any person to the same office." 
This rule, it is said, was intended to allow the Governor to 
reappoint district police officers, and the mayors of the various 
cities to reappoint police officers without examination at the 



250 OPINIONS OF THE ATTORNEY-GENERAL. 

expiration of their various terms of office. There is no express 
provision in the act of 1884, or the amendment thereof, estab- 
lishing any such rule. It has been made by the commissioners 
under the authority given them by § 2 of said act ; and I am 
of the opinion that it stands upon the same ground as the case 
considered under the fourth question, and that, upon a reap- 
pointment to the office named, if a veteran has applied for the 
place and has complied with the requirements of the act of 
1895, the appointing power may, nevertheless, reappoint the 
person whose term has expired. 

^^ Sixth. Civil service rule XLIII. provides for promotion 
by competitive or non-competitive examination ; and provides 
that, so far as practicable, such promotion shall be made by 
successive grades. This rule in practicable operation afiects 
mainly the police and fire forces, especially of Boston, where 
the forces are large, and chances of promotion correspondingly 
great. Can this rule be enforced against a veteran now in the 
force seeking the higher grade l)y promotion under the prefer- 
ence secured by this act, with or without examination ? " 

Civil service rule XLIII. provides for promotion by com- 
petitive and non-competitive examination, and provides that, 
so far as practicable, such promotion shall be made l)y succes- 
sive grades. The question is, Avhether this rule is to he en- 
forced against a veteran now on the force seeking a higher 
grade, by this act, with or without examination. I am of 
opinion that it must be so considered. 

" Seventh. Under civil service rule XXXVI. it is provided 
that where there is no suitable eligible list a provisional appoint- 
ment may be made by competitive or non-competitive examina- 
tion. This is frequently the case when special qualifications 
are required, or when, as in smaller cities, no eligible list 
exists. Can this rule be enforced in any case where a veteran, 
filing the certificates provided under § 6 of the act, applies for 
appointment to the position, without examination? Must such 
veteran be certified and appointed ? " 

Under civil service rule XXXVI. it is provided that where 
there is no suitable eligible list a provisional appointment may 
be made by competitive or non-competitive examination. The 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 251 

question is, whether this rule can be enforced in any case where 
a veteran, filing the certificate provided under § 6 of the act, 
applies for appointment without examination. I am of the 
opinion that it cannot, for the reason that, upon the application 
of a veteran in accordance with the provisions of the act of 
1895, it can no longer be said that there is no suitable eligible 
list, and so the rule to that extent fails. 

" Eighth. Under civil service rule XLV. provision is made 
for the registration of laborers in Boston and other cities. 
Neither an age limit nor an examination is required by the 
rules. In many cases, however, where the labor requires 
strong and active men, the employing department has been 
accustomed to call for an age limit, as a special qualification in 
the requisition for laborers ; and the commissioners, believing 
the requirement to be bona fide, have recognized it. Have the 
commissioners, under this new statute, any right to recognize 
an age limit in a requisition for lal^orers in Boston, if veterans 
are on the labor rolls seeking certification and employment? 
Must veterans, applying for city labor, be certified and employed 
in preference to all other persons, if they have filed the state- 
ment and certificates required by § 6 of the act ? " 

I am of the opinion, for the reasons already stated in reply 
to the previous questions, that veterans appljdng for such 
labor, in the absence of any rule of the Civil Service Commis- 
sion prescribing an age limit, must be certified and employed 
in preference to all other persons, if they file the statements 
and certificates required by § 6 of the act. 



Ballot Boxes. 



It is the duty of the examining board provided for by St. 1895, c. 508, to ap- 
prove any and all patterns of ballot boxes which comply vpith the require- 
ments of St. 1893, c. 417, § 123. 

I have the honor to acknowledge the receipt of j^our letter To the 

I" J.1 -I 1 ii • j_ J • ^ • • . Secretary. 

oi tne 11th mst., requesting my opinion as to the construction 1395 
to be given to St. 1895, c. 508, § 2 ; and whether under the "^J^^- 
statute it is the duty of the examining Board to approve any 
and all patterns of liallot boxes submitted to it which in its 



252 



OPINIONS OF THE ATTORNEY-GENERAL. 



judgment shall comply with the requirements of St. 1893, 
c. 417, § 123, or whether the Board shall approve only boxes 
of a single pattern which in its opinion comply most fully with 
said requirements. 

In my opinion, it was not the intention of the Legislature to 
limit the Board in its approval to a single pattern of ballot box. 
Such is not the plain intent of the language used. If the Board 
finds that several patterns fully comply with the requirements 
specified, it may in its discretion approve all such patterns. 

It was the intention of the Legislature to commit the whole 
matter to the discretion and sound sense of the officers who 
constitute the commission, having regard not only to the re- 
quirements specified in the statute of 1893, l)ut also to the 
obvious fiict that the l)allot boxes are liable to be used by peoi)le 
unaccustomed to the working of machines, and to the further 
fact that the practice of fraud in many places is to be expected, 
and must be guarded against. Keeping these considerations in 
view, the duty of the Board, in my opinion, is to ap})rove any 
and all patterns of ballot boxes which, when put in practical 
use, in its opinion ^dll fulfil the requirements of the statute. 



Civil Service, — Metropolitan "Water Board, — Auditor and 

Accountant. 



To the Civil 
Service Com- 
DiiBgion. 

1895 
August 2. 



The position of auditor and accountant of the Metropolitan Water Board, 
established by St. 1895, c. 488, does not fall within the classified service 
of the Civil Service Commission. 

I have the honor to acknowledge your communication of 
July 29, requesting my opinion upon the question whether 
the position of auditor and accountant of the Metropolitan 
Water Board, established by St. 1895, c. 488, is within the 
classified service, and whether the person occupying that 
position should be appointed in accordance with the rules of 
your Board. 

It appears, by the communication of the Water Board, sub- 
mitted with your letter, that that commission proposes to 
appoint a person as auditor and accountant. The duties of 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 253 

such officer will be to organize and be at the head of the 
department of accounts. These accounts will involve the ex- 
penditure of several millions of dollars per annum. The per- 
son to be appointed will have the immediate oversight of the 
proper accounting for the expenditures, the scrutiny of con- 
tracts and agreements and the classification and comparison of 
classes of work and supplies. The person to be appointed 
will be required to give a l)ond with sureties for the sum of 
ten thousand dollars, and it is expected that his duties will 
include the disbursing of sums of money from time to time 
for that amount. It is also stated by the Water Board that 
the person occupying the position should be "a man of such 
experience, breadth of view and skill in organization and classi- 
fication that liis system of accounts may be convenient for the 
use of the engineering department in estimating cost of future 
work from work already done, and for the analysis of elements 
of economy on work in progress." 

It is not pretended that the officer to be appointed comes 
within the classified service unless he is included in schedule A 
of rule G of the civil service rules. Said schedule A includes 
"clerks and other persons, of whatever designation, rendering 
service as copyists, recorders, book-keepers, agents or any 
clerical, recording or similar service." 

I am of opinion that the officer proposed to be appointed by 
the Water Board does not come within the scope of the lan- 
guage of said schedule. He is certainly not within the letter 
of the rule, for he is neither a copyist, recorder, book-keeper 
or like agent, nor are his services clerical. 

But as well upon a In'oader view of the question, and taking 
into consideration the obvious intent of the rules, it cannot be 
fairly said that one whose duties are of organization and super- 
vision, and who is called upon to have charge of the contracts 
of the Board and to disburse money as well, is an officer who 
could properly be selected under the rules of examination of 
the Civil Service Commission. No form of examination would 
tend to establish the qualifications of an applicant for such a 
position. He belongs rather to the class of officers who are to 
be selected in view of their general experience, reputation and 



254 OPINIONS OF THE ATTORNEY-GENERAL. 

skill, as all principal officers and heads of departments are and 
must always be selected. 

While the question is not in all respects identical, yet the 
opinion of my learned predecessor, Mr. Pillsbury, given Oct. 
12, 1892,* holding that the position of superintendent of water 
inspectors of Boston is not within the classified service, has 
been of much assistance to me in coming to the conclusion 
above stated. 



Militia, — Commissioned Officers. 

St. 1895, c. 465, § 3, applies only to officers commissioned after the passage of 
the act and to officers so commissioned whose grade and date of commis- 
sion are the same. 

In the case of three commissions of the same grade and date, the holder of 
one having served two years in the army, the holder of one of the others 
having served three years in the navy, and the holder of the third having 
served four years in the volunteer militia, the first has seniority in rank 
over the second, and the second seniority over the third. 

Where in the case of two officers previous service in the army or navy has 
been the same, their seniority is to be determined by the regulations of 
the army and navy respectively applicable to such cases. 

An officer who resigns and is afterwards recommissioned with the same ranis 
is the junior of another officer who in the interim has been commissioned 
with such ranli. 

To the Adjutant J havc the liouor to acknowledge the receipt of your letter 

General ~ i. j 

1895 of June 25, asking my opinion as to the proper construction 

of St. 1895, c. 465, § 3. 

Your first question is, whether said section applies only to 
officers whose present grade and commission date the same. 
The section in question applies only to officers commissioned 
after the passage of the act and to officers so commissioned 
whose grade and date of commission are the same ; that is to 
say, in commissions issued after the passage of the act on the 
same day and for the same grade the rank is not to be deter- 
mined by lot unless there has been no previous military ser- 
vice. If there has been such service, the rank is not to be 
determined hy lot. 

• See page 71, ante. 



AuguBt 8. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 255 

Your second question is, if A had served two years in the 
army, B three years in the navy and C four years in the volun- 
teer militia, which would take precedence in case of three 
commissions of the same grade and date? The language of 
the last sentence of § 3 is somewhat obscure ; but, upon con- 
sideration of the whole statute, I am of the opinion that it 
must be taken as meaning that seniority shall depend upon 
the character rather than the length of the service. There is 
no reference to the length of service, and it seems to declare 
quite explicitly that the three classes of service are to be con- 
sidered in the order named as establishing seniority. This 
being so, it follows that in the given case A is the senior and 
C the junior. 

Your third question is, "Does the sentence 'as in the army 
or navy of the United States ' mean that credit be given for 
such service, and also that the service is to be counted by the 
same methods and customs as are employed in the army, as 
stated in the army regulations?" I am of opinion that the 
intention of the act is that, where the previous service in the 
army or navy has been the same in the case of two given 
officers, seniority shall be determined by the regulations of 
the army and navy respectively applicable to such case ; that 
is to say, in case A and B have each served two years in the 
army, their relative rank would be determined by the army 
regulations of the United States ; so in case of two persons 
who have had equal previous service in the navy. 

Your fourth question, briefly stated, is, whether one who 
held a commission which he resigned and who was afterwards 
again commissioned with the same rank, would be the senior 
of another officer who had been commissioned to the same rank 
prior to the date of the last commission of the first named. 
This question is not within the statute you quote. St. 1895, 
c. 465, has no application to the state of facts suggested in 
this question ; but I am of opinion that the seniority is to be 
determined by the age of the existing commission, where there 
was a break in commission between the existing commission 
and a prior one. 



256 



OPINIONS OF THP: ATTORNEY-GENERAL. 



To the 
Governor. 

1895 
August 15. 



Governor, — Proclamation for establishing State Institution. 

The Governor has no authority to issue a proclamation for the establishing of 
a State institution or an addition to a State institution except when so 
authorized by statute. 

I have examined the questions stated in the letter from the 
secretary of the trustees of the Lyman School to Your Excel- 
lency, and beg to reply as follows. I know of no authority 
which the Governor has to issue a proclamation for the estab- 
lishino' of a State institution or an addition to a State institu- 
tion except when so specially authorized by statute. In the 
case referred to by the secretary the proceedings were under 
the authority of St. 1884, c. 322. Similar authority was con- 
ferred upon the Governor by the statute estal)lishing the State 
Keforni School. See St. 1847, c. 165, § 3. Statutes au- 
thorizing such proclamations have usually been passed by the 
Leo;islature, when, owing to delay in erection or completion of 
buildings, it would be impossible to fix a time in advance for 
the occupancy of new or additional buildings. See St. 1884, 
c. 323, § 5. The plan, therefore, proposed by the secretary, 
seems to be impracticable. 

So far as I have examined the matter, I do not see how boys 
under sentence to the Eeform School can be placed elsewhere, 
even in quarters hired for the purpose by the trustees. If, 
however, without expense to the Commonwealth, the trustees, 
to meet the exigencies of the case, see fit to hire or purchase 
additional buildings, it would seem to be a practicable solution 
of the difficulties which now press upon them ; and I doulrt if 
any serious trouble would arise. The boys under sentence to 
the Lyman School who were transferred to such unauthorized 
quarters might perhaps escape therefrom without being liable 
civilly or criminally, but I apprehend that even this contin- 
gency will not give serious trouble. 

This, however, is not within the scope of the inquiry in the 
letter referred to me, and I only olfer the suggestion for the 
practical consideration of the trustees in their present difficul- 
ties. The plan they propose, while it is unauthorized by law 
and cannot be officially recognized by the Governor, is yet one 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 257 

which the trustees may, perhaps, well take the responsibility 
of, if they think the exigency so serious that great harm is 
liable to result from the present condition of tilings. 



rer. 



Bonds of Commonwealth, — Denominations. 

Under authority of a statute authorizing the issue of bonds with the principal 
and interest payable in gold coin of the United States or its equivalent, 
no legal right exists to issue bonds payable interchangeably in denomina- 
tions of dollars or pounds sterling. 

I am in receipt of a memorandum from your office, stating To the 
the following question: " By a provision of St. 1895, c. 488, isss 
§ 17, the bonds to be issued thereunder ' shall have the princi- "f^-' 
pal and interest made payable thereon in gold coin of the 
United States of America or its equivalent.' I have the honor 
to ask if, in your opinion, the bonds contemplated to be issued 
under said § 17 may properly l)e made payable in denomina- 
tions of dollars or sterling interchangeably, that is to say, in 
pieces made payable either as $1,000 or £205-9-9, the latter 
being the exact equivalent of $1,000 in gold coin of the United 
States of America, at the legal par rate of exchange of the 
United States at $4.8665 for each pound sterling, as adopted 
]>y Massachusetts in St. 1882, c. 110." 

I am of the opinion that your authority is limited to the use 
of the language of the statute, and that the bonds to be issued 
thereunder must be expressed to be paid ' ' in gold coin of the 
United States or its equivalent." The word equivalent must 
be taken to mean such other money as at the time of payment 
is of equal market value with gold. The Commonwealth has 
no power to establish a currency or to fix the value of foreign 
currency. Both of these, under the Constitution of the United 
States, are the prerogative of Congress. Foreign money of any 
kind is merchandise only, and is not currency in the United 
States. It differs from other merchandise only by reason ^of 
the fact that under the Constitution Congress may fix its value. 
The Commonwealth of Massachusetts has no authority to estab- 
lish the value of English money. 



258 OPINIONS OF THE ATTORNEY-GENERAL. 

Your memorandum refers to St. 1882, c. 110; but that 
statute does not assume to fix the value of foreign currency. 
It only adopts the value established liy Congress for the " ac- 
counts, entries and records " of the Treasurer and Auditor. It 
is doubtful whether so much was necessary, and whether the 
act of Congress was not binding upon those officers with refer- 
ence to their accounts and records. But, whether that be so 
or not, the statute cannot he taken to have fixed the value of 
foreign currency for the Commonwealth of Massachusetts ; that 
was done by Congress, acting under its constitutional power. 
While it is not probable that a different value will l)e established 
by Congress, yet it is within the power of that body to do so 
at any time. 

If you put into bonds issued by you a computation of the 
value of the same in English money (which is what your 
proposition amounts to), such a proceeding would bind the 
Commonwealth to pay its indebtedness in merchandise, to wit, 
foreign money, at a value which might not be its established 
value at the time of the maturity of the 1)onds. Without doubt 
the Legislature might authorize you to make such a contract ; 
but it has not done so. A bond containing such a contract, 
therefore, would be beyond your authority as Treasurer. 

But, independently of the foregoing considerations, I do not 
think you have the right to make contracts in behalf of the 
Commonwealth in anything but the lawful and estal^lished 
currency of the United States, unless so specifically authorized 
by the Legislature. Congress, acting under the authority of 
the Constitution, early declared that the money of the United 
States should be expressed in dollars, dimes and cents. These 
coins are the currency of the nation. While this law applies 
in terms only to the accounts of the United States, and does 
not prohibit citizens of States from making contracts expressed 
in foreign money, it would, notwithstanding, in my judgment, 
be not only unpatriotic, but unauthorized, for the State, with- 
out express authority of the Legislature, to incorporate in the 
contracts of the Commonwealth any expression of the money 
of other nations. I am told that, if the course you suggest 
could lawfully be adopted, the proposed loan might be placed 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 259 

at better figures and with more profit to the Commonwealth ; 
but it would be a profit acquired at the expense of the dignity 
of the Commonwealth, and by means of a transaction which in 
my judgment should only be entered into with the sanction of 
the Legislature. 

It is suggested that the bonds of the Commonwealth have 
heretofore from time to time been expressed in foreign money. 
So far as my attention has been called to the matter, this has 
never been done without express authority of the Legislature, 
either specifically authorizing the contracts to be expressed in 
pounds sterling or in " such currency as the Governor and 
Council should approve." See St, 1865, c. 32 ; St. 1868, 
c.c. 51, 333; St. 1869, c. 450; St. 1874, c. 391. 

In all of the above statutes, which were passed at a period in 
the history of the nation when its credit and financial position 
were less firmly established, there was incorporated express 
authority to make contracts in foreign money. The absence of 
any such provision in the statute now under consideration must, 
I think, be interpreted as a declaration by the Legislature that 
it is not now necessary or becoming that the contracts of the 
Commonwealth shall be expressed other than in the currency 
of the nation. 



Veteran, — Discharge, — Metropolitan Park Commission, — 
Police Force. 

An employee on the police force of the Metropolitan Park Commission, 
although a veteran of the civil war, can be discharged by the commission 
for reasons which to it are satisfactory. 

I am in receipt of your letter of August 20, informing me to the Metro- 
that, for the purpose of reducing the force in the employ of the commission. 
Metropolitan Park Commission, the Board has selected certain August 23. 
men to be discharged, including among others a veteran of the 
late war, who was employed on the police force. My opinion 
is asked as to whether you have the right to discharge him. 

I have no doubt that the Board has authority to discharge 
members of its police force for any cause satisfactory to it. 
The Board has power to employ and make rules and regula- 



September 4. 



260 OPINIONS OF THE ATTORNEY-GENERAL. 

tions to govern its police force. This implies the power of 
discharged St. 1893, c. 407, § 4. The only duty of the com- 
mission with reference to the discharge of employees is to 
re})ort the ftict to the Civil Service Commissioners. St. 1884, 
c. 320, § 22. 

Tuberculous Cattle, — Six Months' Ownership in State. 

St. 1895, c. 496, § 10, provides for compensation to owners of cattle taken by 
the Cattle Commissioners, provided the animal in question " has been 
owned within the State six months continuously prior to its being killed." 
It is not necessary, under the statute, that the animal should be kept 
within the State, provided it is owned here. 

To the Cattle Your letter of the 26th ultimo, asking my opinion as to the 

1895 ■ construction of St. 1895, c. 496, § 10, is received. 

The question stated in your letter is, whether the words, " if 
such animal has Ijeen owned within the State six months con- 
tinuously prior to its being killed," are to be taken to mean 
both owned and kept in the State ; the fact being, as stated in 
your letter, that many owners of cattle in Massachusetts own 
pastures in other States, into which they turn their cattle, re- 
turning; them to Massachusetts in the fall. 

The statute in question is amendatory of St. 1894, c. 491, 
§ 45, in which provision was made for compensation to owners 
of cattle under similar cases, whenever such animal had " been 
within the State six months continuously prior to its being 
killed." The statute of this year amended the statute of 1894 
by inserting the word " owned," so that the expression under 
the present statute is, "has been owned within the State," 
instead of the expression in the statute of last year, ' ' has been 
within the State." 

" Owned within the State" signifies "owned [by a person] 
within the State." As the law stood last year, the clause 
<' within the State " modified the predicate " has been." In the 
present law it modifies the predicate "has been owned," and 
relates to the place of ownership and not to the place of keep- 
ing. 

This, it is true, is a radical change from the letter and spirit 
of the statute of last year, and it may be urged that the con- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 261 

siderations which led the Legislature to limit compensation to 
such cattle as had been kept within the State for six months 
1)efore being killed by the commissioners should apply to the 
law as it now stands ; for, if place of ownership only be con- 
sidered, a resident of Massachusetts may purchase cattle in 
another State, keep them there for six months, and then, having 
brought them into the State afflicted with tuberculosis, recover 
compensation for their killing. 

But this consideration is rather an argument as to what the 
law should be than as to what it is. The wisdom of the law 
does not enter into the discussion as to its meaning. The 
Legislature saw fit, in its wisdom, to decree that cattle owned 
within the State for six months should not be killed without 
compensation, wherever kept prior to their killing. No other 
consistent construction of the expression, in my judgment, is 
possible. 

Militia, — Commissioned Officer. 

Concerning the validity of the commission issued Feb. 20, 1862, to Lieut. - 
Col. Charles "W. Whelden, of the Thirty-flrst Mass. "Volunteers, by His 
Excellency Gov. John A. Andrew. 

I have the honor to acknowledge your communication, refer- To the 
ing to me " the case of Lieutenant-Colonel Whelden's commis- isos ' 
sion " for my opinion. septerab_er4. 

It appears, from the voluminous correspondence and records 
submitted, that a commission was issued to Charles W. Whelden 
by His Excellency Governor Andrew, as lieutenant-colonel 
of the Thii-ty-first Mass. Volunteers, to date Feb. 20, 1862. 
This commission was duly signed by Governor Andrew and 
Oliver Warner, Secretary of State, and, I assume, was duly 
sealed. This commission was enclosed in an envelope directed 
to Lieutenant-Colonel Whelden, and with others was sent to 
Colonel Gooding, the colonel of the regiment, in New Orleans, 
La., and Avas received by him (Colonel Gooding) in July, 1862. 
At the time of the receipt of the package containing the com- 
mission in question Colonel Whelden was absent, and Colonel 
Gooding returned it to Governor Andrew with a letter dated 



262 OPINIONS OF THE ATTORNEY-GENERAL. 

Aug. 21, 1862, declining to transmit it to Lieutenant-Colonel 
AVhelden. The commission thus returned was received at the 
Executive office and opened by Col. A. G. Browne, the military 
secretary of Governor Andrew, Nov. 6, 1862, who endorsed 
the fact that he had opened it upon the envelope. No action 
was taken upon the commission, Init it remained in the Execu- 
tive department and was finally deposited in the so-called 
" Shoe-string Library" in the State House, together with the 
correspondence relating to the same, where it now is. It is in 
the same envelope in which it was sent to Louisiana. 

Many other factors appear in the correspondence, but none of 
them are, in my judgment, relative to the issue now presented. 

From the fticts above stated, it clearly appears that all the 
acts and formalities necessary to the commission of Lieutenant- 
Colonel Whelden were done by Governor Andrew. The ap- 
pointment was made by him, the commission prepared, signed, 
sealed and transmitted to be delivered to him. In my opinion, 
these acts establish the validity of the commission. I beg leave 
to refer to a discussion of the question in an opinion relating 
to the appointment of justices of the peace, sent to Your 
Excellency from this office under date of March 29, 1894,* 
in which the authorities pertinent to the question were cited 
and considered. 

The only possible ground for holding that the commission 
did not take effect was the fact that Colonel Gooding did not 
deliver it to Lieutenant-Colonel Whelden, but returned it to 
the Governor. It is doubtful whether, even if the Governor 
had so desired, after having taken the steps which have been 
recited, he could have recalled the commission. Indeed, it 
might well be urged that the investure of office was complete 
when the commission was duly signed and sealed. 

But that question does not arise in this case. The commis- 
sion was not recalled by Governor Andrew. Colonel Gooding 
was only authorized to deliver it, and had no authority to re- 
turn it. Even had the Governor been disposed to recall the 
commission, he did not do so. It does not appear that any 



* See page 140, ante. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 263 

action was taken by him in relation to it. It was merely 
opened by his private secretary, and remained without retrans- 
mission in the archives of the office. Granting that the Gov- 
ernor might have revoked the commission, it appears that no 
effectual steps were taken to do so, and that no action was 
taken by the Executive in relation to the commission after it 
was transmitted in the manner above stated. 

It follows, therefore, that the commission belongs to Lieuten- 
ant-Colonel Whelden, and that, so far as may be done, the mil- 
itary records should be amended to conform to the truth. 



September 13. 



Municipal Indebtedness Act, — Water Bonds, — Sinking Fund, 
— General Statute conflicting with Particular Statute. 

A town voting to purchase an existing water supply and to issue bonds for 
the payment thereof, under the provisions of Pub. Sts., c. 27, §§ 27 and 
28, is bound by such provisions of said chapter as are general in nature, 
including those in relation to the creation of sinliing funds ; although the 
bonds are valid, even if the town does not establish a sinking fund. 

I have the honor to acknowledge your favor of the 4th inst. , ^o the 

~ -^ ' Treasurer. 

containing the following questions : — 1895 

" 1 . If a town votes to purchase an existing water supply 
plant, and to issue bonds for the payment thereof, under the 
provisions of Pub. Sts., c. 27, §§27 and 28, is it necessary 
that the town shall establish a sinking fund for the payment of 
said bonds under the provisions of Pub. Sts., c. 29, § 9? 

"2. If in such a case the town does not establish a sinking 
fund, are the bonds valid?" 

In replying thereto I have to say : — 

1. Pub. Sts., c. 27, §§27 and 28, are substantially a re- 
enactment of St. 1870, c. 93. Pub. Sts., c. 29, § 9, was first 
enacted in St. 1875, c. 209. St. 1870, c. 93, was an act to 
authorize cities and towns to purchase water plants. It pro- 
vided, among other things, how cities and towns might vote to 
exercise the right granted them of purchasing water plants, 
and in what manner bonds might be issued in payment thereof. 
It provided that in the case of towns the right of purchase 



264 OPINIONS OF THE ATTORNEY-GENERAL. 

should not be exercised without the consent of a majority of the 
selectmen, sanctioned and ratified by a majority of the voters 
present and voting thereon at a legal meeting ; and that bonds 
might be issued redeemable at any time not exceeding twenty 
years from date. 

St. 1875, c. 209, was a general act "to regulate and limit 
municipal indebtedness." This act purported to deal with dcl)ts 
of all kinds. It provided that debts should be incurred only 
by a vote of two-thirds of the voters of a town. It also made 
provision for the period of time for which bonds might l)e issued, 
especially providing that debts incurred in supplying the inhab- 
itants with pure water might be made payable at a period not 
exceeding thirty years. 

It will be observed that in the particulars specified, at least, 
the provisions of the statute of 1875 were inconsistent with 
those of the statute of 1870. There was nothing in its terms 
to indicate that it did not include debts incurred for the pur- 
chase of water rights. On the other hand, debts for supply- 
ing the inhal)itants of a town with pure water were expressly 
exempt from certain general provisions of the act. For ex- 
ample, the limit of indebtedness was by § 10 declared not to 
be applicable to water debts. 

If, therefore, there had been no subsequent action l)y the 
Legislature, it might well have l)een presumed that the statute 
of 1875, being general in its nature, and applicable to debts of 
all kinds, superseded the provisions of St. 1870, c. 93, in so 
far as they were inconsistent therewith. 

But, when the statutes of the Commonwealth were revised by 
the commissioners and consolidated into Public Statutes, both 
these acts were brought forward and made a part of the Public 
Statutes, as above stated. Both, therefore, must l)e taken as 
independent and co-existing statutes ; one (c. 27) relating to a 
particular form of municipal indebtedness, the other (c. 29) 
relating to municipal indebtedness in general. This l)eing so, 
the true rule of construction, I apprehend, is this: When the 
provisions of the particular statute conflict with those of the gen- 
eral statute, they are in force as to the particular form of munic- 
ipal indebtedness with reference to which tliey are enacted, and 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 265 

are not superseded hy the general provisions. On the other 
hand, all provisions in the general act which are not inconsistent 
with the particular act must be held to be in force as to all forms 
of indebtedness, including debts created under the authority of 
the particular statute. 

For example, c. 29 provides that indelitedness shall be in- 
curred only by a two-thirds vote of the inhal^itants of a town ; 
c. 27 provides that debts for the purchase of a water supply 
may be incurred by a majority vote. These provisions, being 
inconsistent, must both stand ; and c. 27 must in this respect 
be taken to be an exception to the general provision of c. 29. 
Again, c. 29 provides that debts incurred for supplying the 
inhabitants of a town with pure water may be made pa}^al)le 
at a period not exceeding thirty years ; by c. 27 debts incurred 
for the purchase of a water plant must be redeemable in not 
exceeding twenty years. Here, again, the general provisions 
of c. 29 must be taken as not applicable to debts incurred under 
the authority of c. 27. 

On the other hand, c. 29, § 9, providing for the creation of 
a sinking fund, is general in its terms, and may properly be 
held to be applicable to all forms of municipal indebtedness. 
I see no reason why it does not apply to debts created under 
the provisions of c. 27. 

This view is strengthened by the fact that another important 
provision of c. 29, to wit, that fixing the limit of municipal in- 
debtedness, is expressly declared not to be applicable to debts 
created for supplying inhabitants with pure water. There can 
be no doul)t that debts created for the purpose of a water sup- 
ply, under the provisions of c. 27, are debts incurred for the 
supply of pure water, and as such are exempt from the pro- 
visions of law relating to the limit of municipal indebtedness. 

But such provisions of c. 29 as are general in their nature, 
including those in relation to the creation of sinking funds, are, 
in my judgment, applicable to all forms of nuinicipal indebted- 
ness, including debts created under the authority of Pub. Sts., 
c. 27. 

2, It is expressly provided in Pub. Sts., c. 29, by § 16, 
that the restrictions contained in the chapter " shall not exempt 



266 OPINIONS OF THE ATTORNEY-GENERAL. 

a city or town from its liability to pay debts contracted for 
purposes for which it may lawfully expend money." This 
section was undoubtedly intended to relieve the creditor from 
any responsibility or interest in the observance by the town of 
the statutory provisions limiting and regulating municipal in- 
debtedness. It follows that, inasmuch as debts created for the 
purchase of a water supply are ' ' contracted for purposes for 
which it may lawfully expend money," the town is liable for 
the payment thereof, notwithstanding the fact that it has not 
created a sinking fund. 

The provisions with relation to sinking funds are for the 
benefit of the tax payer rather than the creditor ; and it is ex- 
pressly provided by c. 29, § 17, that tax payers may enforce 
the provisions of the law. Excepting so far as the sinking fund 
adds to the practical security of the debt, I do not see how a 
purchaser of the bonds is interested in its establishment. 



Medfield Iksane Asylum, — Building Committee, — Disputed 
Claims, — Compromise. 

The building committee of the Medfield Insane Asylum has legal authority to 
compromise disputed claims for expenses incurred in the erection of the 
buildings. 

To the Building J understand the facts upon which you ask my opinion to be 

Committee of l J J L 

AsykTm. ^^^^^^ that a contractor, who has done work upon the asylum build- 
1895 ii^ofs or ffrounds, claims a laro-e additional amount above his 

October 5. ° '-' 

contract for work done by reason of alleged misrepresentations 

made to him by your agents to induce him to enter into the 
contract. Whether the alleged misrepresentations consisted in 
stating things that were not true, or in keeping back material 
facts, is not to the point. A proposition has been submitted 
to compromise this claim, which the building committee may 
desire to consider if it is authorized to do so. The question 
is, whether it has such authority. 

Under the provisions of St. 1892, c. 425, § 2, which author- 
izes the building committee to ])uild the asylum and to make 
contracts therefor, the only restraint upon their power being 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 267 

that contracts shall be approved by the Governor and Council, 
and that the ao-ffregate cost shall not exceed the sum named in 
said section, I see no reason to doul)t that, in the exercise of 
the discretion committed to them, the building committee may 
compromise disputed claims upon such terms as they shall deem 
to be for the interest of the Commonwealth. 



Building Laws, — Inspector of Buildings. 

Concerning the interpretation of St. 1894, c. 481, §§ 25 and 26, regarding the 
filing of plans with the inspector of buildings ; also concerning the order 
to be issued by the inspector under St. 1894, c, 508, § 42. 

I have your letter of the 27th ult., containino^ questions To the Chief of 

the District 

calling for a construction of St. 1894, c. 481, §§25 and 26. Pouce. 

The intent of § 25 is not so clearly expressed as it might Octobers. 
easily have been ; but, in my opinion, the purpose of the sec- 
tion may be thus stated : before entering upon the erection of 
a building, such as comes within the provisions of this act, a 
plan with such specifications as may be called for is to be filed 
with the inspector of public buildings for his examination. It 
is his duty thereupon to examine the plans, and to see whether 
they include a system of ventilation, and whether, when con- 
structed, the l)uilding will comply with the provisions of the 
statutes relating to means of escape from fire. If he finds 
that the plans provide a system of ventilation, and that when 
erected the building will conform to such provision of law, it 
is his duty to approve the plans ; if he finds otherwise, it is his 
duty to disapprove the plans. He has nothing to do with the 
general construction of the building. If the plans are con- 
formable to law in matters within his jurisdiction, it is his 
duty to approve them. 

The approval of the inspector does not appear to be a con- 
dition precedent to the lawful construction of the building. 
The builder may proceed with the construction of the building 
when he has filed the plans. If, however, the plans are dis- 
approved, he does so at his peril ; and, if the building does 
not conform to the statutory requirements, he may be enjoined 



2GS 



OPINIONS OF THP: ATTORNEY-GENERAL. 



under the provisions of § 2G, or, when completed, he may be 
prosecuted therefor. The approval of the inspector is, as the 
act states, conclusive evidence that the building, when erected, 
is in conformity with the re(]uirements of the statutes, and 
operates as a protection to him to that extent. Even if the 
inspector disapproves the jjlans, it may be that the building 
erected in accordance with them will conform to the re(]uirc- 
nients of the law ; but of that the l)uilder takes the responsi- 
bilit}^ If, on the other hand, the plans are approved, the 
builder is relieved from further responsibility in the matter, so 
long as he conforms to the plans. 

The last question in your letter is in reference to St. 1894, 
c. 508, §§ 40, 41, and 42. Section 42 provides that when it 
appears to the inspector that "further or different sanitary 
provisions or means of ventilation are required . . . and that 
the same can be provided without incurring unreasonaljle ex- 
pense, such inspector may issue a written order . . . directing 
such sanitary provisions or means of ventilation to be provided."' 
In my opinion, the order to be issued by the inspector should 
conform to the words of the statute, and that he is not respon- 
sible, and should not undertake to he responsible, for the par- 
ticular means adopted by the owner of the building to comply 
with the order. If any changes which have been made by the 
owner prove ftiulty, the inspector may issue further general 
orders in reference to the same, and so continue until the 
buildino; conforms to the law. 



To the 
Treasurer. 

1895 
October 5. 



Legacy Tax Act, — Time of Payment of Tax. 

The Treasurer of the Commonwealth has no discretionary power to allow 
time for the payment of taxes under the laws relating to collateral legacy 
taxes. The time for payment is fixed by the statute. 

The time for the payment of taxes on collateral legacies and 
successions, and all interest thereon, is fixed by the original 
act, St. 1891, c. 425, as amended by St. 1895, c. 430, and by 
said acts no discretion is given to the Treasurer of the Com- 
monwealth in the matter. This being so, of course there is no 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 269 

occasion to consider what would be a reasonable time to allow 
the payment of taxes free from interest. 

The only discretion as to the extension of time for the pay- 
ment of a tax is that given to the court in the last paragraph 
of St. 1891, c. 425, § 18. There is nothing in the act w^hich 
contemplates the exercise of any discretionary powers by the 
Treasurer, either in this or in any other respect, as' far as I 
have been able to discover. When the original act was first 
passed a similar question was then examined quite carefully by 
the Attorney-General, and his views were communicated to the 
Treasurer. See Opinions of May 11, 1892, Feb. 13, 1893, 
and June 19, 1893.* 

I agree with the conclusions stated in the opinions above 
cited. 

Insurance, — Admission of Foreign Company, — Business of 
INSURING Impaired Lives, — Valuation of Policies. 

A foreign insurance company, organized for the purpose of insuring impaired 
lives and applying for admission into this Commonwealth, is not to be ex- 
cluded therefrom merely on account of this characteristic of its business. 

The Insurance Commissioner, under the provisions of St. 1894, c. 522, § 11, 
is required to use the tables therein provided in order to estimate as re- 
quired by that section the financial standing of such a company ; but if he 
is not then satisfied that the company is in sound financial condition, 
according to § 67 of that act, he may refuse it admission to the Common- 
wealth. 

I have considered the question stated in your letter of Sep- To the insur- 

T-1 in !• f ^ ance Oommis- 

tember 4, and more explicitly stated orally at the time or the sioner. 
hearing given to counsel for the insurance company interested, October n. 
and beg to reply as follows : — 

The facts, as stated both in your letter and at the hearing, 
and Avhich are practically undisputed, are as follows : The St. 
Paul Life Insurance Clearing Company, a foreign corporation, 
has applied to the insurance department for admission to do 
business in the Commonwealth of Massachusetts. This com- 
pany is organized for the purpose of making insurance upon 
what are called impaired lives ; intending by that expression 
persons who, by reason of hereditary disease or other cause, 

* See pp. 52, 76 and 85, ante. 



270 OPINIONS OP^ THE ATTORNEY-GENERAL. 

arc unable to pass the medical examinations of ordinary life 
insurance companies. It is claimed ])y the company, and I 
understand it to be conceded by yourself, that the plan of the 
insurance company is a good one ; and that, so far as the experi- 
ence of other companies doing the same business, particularly 
in Great Britain, affords a guide, its method of business is safe. 

The statute relating to the admission of foreign corporations 
(St. 1894, c. 522, § 67) provides that "A company organized 
under the laws of any other of the United States for the trans- 
action of life insurance may be admitted to do business in this 
Commonwealth, provided it has the requisite funds of a life in- 
surance company and in the opinion of the commissioner is in 
sound financial condition." The meaning of the expression 
" requisite funds of a life insurance company "is to be ascer- 
tained from other provisions of the statute. The same chapter 
provides (§ 11) that the Insurance Commissioner shall annually 
compute the net value of all policies of life insurance in com- 
panies authorized to insure lives in this Commonwealth " upon 
the basis of the 'Combined Experience,' or 'Actuaries' Table' 
rate of mortality, with interest at four per cent, per annum, and 
the aggregate net value so ascertained, of the policies in any 
such company shall l)e deemed its lialjility on account of its 
policy obligations," The section further provides that " it shall 
hold funds in secure investments of an amount equal to such 
net value above all other liabilities." The funds so provided 
for in this section are without doubt the " requisite funds of a 
life insurance company," which, hy § 67, above quoted, it is 
required that a foreign company shall hold in order to be ad- 
mitted to do business in this Commonwealth. This appears by 
various sections of the same chapter, and it is practically un- 
disputed by the company that such is the intention of § 67 in 
relation to the admission of foreign life insurance companies. 

It further appears that the ' ' Combined Experience " or ' ' Act- 
uaries' Table " rate of mortality is ascertained liy taking the aver- 
age of what are called selected lives between the ages of ten and 
eighty years. By selected lives is meant the lives of persons 
who are free from disease, and who have no hereditary or other 
tendencies or susceptibility to disease. This classification clearly 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 271 

excludes the lives which it is the business of the St. Paul Com- 
pany to insure. It follows, therefore, that these tables afford 
no accurate guide to the value of the policies is sued by the St. 
Paul Company. This is not disputed by the company, but it 
is claimed that, if the Insurance Commissioner is satisfied that 
the reserve established by that company is sufiicient to protect 
the policy holders, it is his duty to admit the company. 

I cannot agree with the contention of the Insurance Commis- 
sioner that the provisions of § 11, requiring him to ascertain 
the net value of life insurance policies by the tables therein 
specified, of themselves prohibit life insurance companies doing 
business in this Commonwealth from eftecting insurance other 
than upon selected lives between the ages of ten and eighty 
years. There is nothing in the charter of any of the five 
domestic insurance companies doing business in this Common- 
wealth to limit them to that extent, nor in any provision of law 
regulating the admission of foreign companies which can l>e 
regarded as a limitation of their power to etfect such life insur- 
ance. It would be, in my judgment, an unwarrantable inference 
to say that, because the Insurance Commissioner is required to 
make use of certain tables to ascertain the net value of policies, 
companies can only insure the class of lives upon which those 
tables are based. If the Legislature had intended to prohibit 
the insuring of impaired lives, or lives of persons over eighty 
years of age, it would undoubtedly have expressed the prohi- 
bition in plain terms, and not left it to be drawn by inference 
upon the consideration of extraneous facts, as applied to the 
provisions of § 11. I am of opinion, therefore, that the insur- 
ing of impaired lives of itself is not prohibited or unlawful in 
this Commonwealth ; and that the company seeking to do busi- 
ness of that character is not for that cause to be excluded. 

Neither can I accept the contention of the company that the 
expression ' ' upon the basis of the ' Combined Experience ' or 
' Actuaries ' Tal)le ' rate of mortality " authorizes the commis- 
sioner to use the figures of those tables as a starting point of 
computation, and to mafke estimates therefrom applicable to the 
facts of each policy. Such, in my judgment, is not the inten- 
tion of the statute. But one rule for the valuation of policies 



272 OPINIONS OF THE ATTORNFA'-GENERAL. 

is })crmitted to liiiu. He has no authority to put any other 
vahiation than such as the tables prescribe. If such vahiation, 
by reason of the facts of the specified life, is inaccurate, it is 
not his fault, but is the result of the limitations prescribed 
ui)on his work by the Legislature. 

It follows, therefore, that, in the performance of his duty 
when a foreign company applies for admission to do business 
in this Commonwealth, he must ascertain its financial standing 
in accordance with the rule stated in § 11. He is to compute 
the value of outstanding policies by means of the tables pro- 
vided ; and if by the use of those tables he ascertains that the 
company has, as is provided in § 67, "the requisite funds of a 
life insurance company," it would be his duty to admit the com- 
pany to do ])usiness in this Commonwealth, but for a further 
and very salutary provision of the same section, to wit, he is 
to be satisfied not only that " it has the requisite funds of a life 
insurance company," but further that, in his opinion, it is "in 
sound financial condition." In other words, the Legislature 
contemplated the very contingency which seems to have arisen 
in this case. That is, ascertaining the net value of policies of 
a company by the rule established, it might yet happen that by 
reason of the method of doing business such value would be 
misleading, and give no guide to the actual financial condition 
of the company. If, for example, a company issued policies 
upon all lives indiscriminately without medical examination, 
the commissioner would still be required to ascertain the 
nominal net value of the policies by the tables prescribed ; but, 
in view of the method of doing business, he would have no 
difficulty in arriving at the conclusion that the financial condi- 
tion of the company was not good. 

The same rule would apply in the case of a domestic com- 
pany. Supposing one of the domestic companies were to 
engage in the l)usiness of issuing insurance upon impaired 
lives. The rule of computation prescribed for the commis- 
sioner for ascertaining whether the funds carried by the com- 
pany were sufficient for the protection of the insured would not 
therel)y be altered ; but, under the general authority conferred 
upon him l)y all the sections which })rescribe his duties to pass 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 273 

upon the financial condition of the company, he would be justi- 
fied, if in his judgment the business of the company was hazard- 
ous, in taldng measures to restrain its further continuance. 

In the case in question the Insurance Commissioner, upon 
application for admission, is bound to examine the policies by 
the rule laid down in § 11, and thus to ascertain whether the 
amount of funds carried by the company is requisite for the 
protection of the insured within the rule laid down by that 
section. But it is thereupon his further duty to examine the 
method of doing business adopted by the company, and to 
determine whether, in his opinion, it is in a sound financial 
condition ; that is to say, whether it has in fact funds sufficient 
for the protection of the policy holders. He may be of the 
opinion that, although nominally its reserve fulfils the require- 
ments of § 11, yet in fact, owing to its method of doing busi- 
ness, the reserve is insufficient. He may, in the exercise of 
the discretion conferred upon him, go further, and say that, in 
view of the fact that the rule laid down for him by § 11 is mis- 
leading when applied to the policies carried by the company 
seeking for admission, he can form no opinion that is satis- 
factory to him as to whether the company is solvent or not, 
and, on that ground alone, decline to admit the company. 
But the exercise of that discretion rests upon him, and I do 
not understand it to be the duty of the Attorney-General to 
advise him with reference thereto. 



Lyman School for Boys, — State Primary School, — Final 
Discharge of Inmate. 

The power to finally discharge a boy transferred from the Lyman School to 
the State Primary School, and thence by the trustees placed in charge of 
a person outside the institution, is vested, since the passage of St. 1895, 
c. 428, in the same body that held the power to discharge before such 
transfer was made. 

Your letter of the 2d states the following case : A boy com- To the Trustees 

^ .of the Lyman 

mitted by the court to the Lyman School during his minority l"^^","^"*'"^^ 
was transferred in November, 1893, to the State Primary isqs 
School, under the provisions of Pub. Sts., c. 89, § 7. In 



October 16. 



274 OPINIONS OB^ THE ATTORNEY-GENERAL. 

June, 1894, he was placed by the trustees in charge of a person 
outside the institution, who, upon investigation, was deemed 
suitable by the State Board of Lunacy and Charity. This was 
done under the provisions of Pub. Sts., c. 89, § 6. 

Your inquiry is, " In whom was the power of final discharge 
of such boy vested after he had been placed out and prior to 
the passage of St. 1895, c. 428 ; and in whom is the power 
vested since the passage of said act ? " 

1. Prior to St. 1895, c. 428, the power of final discharge 
was vested in the State Board of Lunacy and Charity. This 
question was considered in a letter written by me to His 
Excellency the Governor, dated August 25, 1894,* to which I 
beg leave to refer. 

2. On the first Monday of July, 1895, under the provisions 
of St. 1895, c. 428, the State Primary School ceased to exist. 
Section 3 of said act provided substantially that the trustees 
of the Lyman School should thereupon resume the personal 
care and possession of children released on probation or pre- 
viously transferred to the State Primary School, and might 
recall them to the school to which they were originally com- 
mitted. Under the provisions of this statute, therefore, chil- 
dren who had been previously transferred from the Lyman 
School to the State Primary School were to be restored to 
their former status as inmates of the Lyman School, and there- 
fore in the custody of the trustees under the provisions of the 
Pub. Sts., c. 89, § 5. The right of the State Board to dis- 
charge such boys under the provisions of Pub. Sts., c. 89, 
§ 6, thereupon ceased, and the power of discharge of such 
boys as inmates of the State Reform School is to be determined 
as though they had never been transferred. 

The foregoing opinion is upon the facts submitted to me, and 
recited in the first paragraph. In an informal discussion of the 
question after receiving your letter it was suggested that the 
facts were not as stated, and that the boy was " placed out" by 
the State Board of Lunacy and Charity ; and I understand it to 
be claimed by the members of the Board that if they had no 
power to place out boys from the State Primary School, their 

* See page 182, ante. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 275 

action is to be regarded as a discharge, and that therefore the 
State has no further right of custody of boys so placed out hy 
the Board. It is not the province of this office to determine 
questions of fact, and I see no occasion to discuss the hypothet- 
ical questions which might arise upon a state of facts not given 
me by the trustees. 

I may say, however, that it appears from Pub. Sts., c. 89, 
§ G, that the respective duties of the Board and trustees are 
clearly defined. The Board has the power of visitation and 
final discharge ; and the trustees have the right and duty of 
"placing out." If the State Board has assumed the jurisdic- 
tion of placing boys from the State Primary School in families, 
their action would apparently l)e illegal, unless there is some 
further provision of law authorizing some action, to wliich my 
attention has not been called. 

I cannot agree with the position suggested by the secretary 
of the State Board, that an illegal "placing out" of an inmate 
of the Primary School by the State Board would operate as a 
discharge of the boy. The only power vested in the Board is 
that of discharge ; if it assumed to exercise that power the boy 
would be free ; if it did not assume to exercise that power, its 
removal of the boy would operate only as an escape, and not a 
discharge, and he could be retaken by the persons entitled to 
his custody. 

Corporation, — Speculative Business. 

The fact that a proposed corporation is to deal in bonds, stock, grain, 
petroleum and other articles of a speculative nature, is not a bar to its 
becoming incorporated under Pub. Sts., c. 106, § 14. 

I have examined, at your request, the articles of association TothoCom- 

•^ ^ miBsioner of 

of the proposed corporation, to be known as the Boston Stock corporations. 
and Grain Exchange, and am unable to see why the purpose October 26. 
set forth therein is not within the provisions of Pub. Sts., 
c. 106, § 14. This section provides, among other things, 
that corporations may be formed for the purpose of carrying 
on any lawful business not mentioned in the seven preceding 
sections, excepting buying and selling real estate, banking, 



276 OPINIONS OF THE ATTORNEY-GENERAL. 

insurance, and any other business the formation of corpora- 
tions for which is otherwise regulated by these statutes. 

Whatever may be said of the manner in which the liusiness 
of buying and selling bonds, stock, grain, petroleum and other 
articles of a speculative nature is carried on, it is obvious that 
the business in itself is lawful, and not mthin the above-specitied 
exceptions. 



Civil Service, — Veterans' Preference Act. 

St. 1895, c. 601, does not exempt veterans from the rule that an applicant for 
appointment to the police force shall be of good moral character and shall 
be physically able to perform the duties of the position. These require- 
ments are still in force, and the commissioners have the right to determine 
them. 

To the Civil J havc the honor to acknowledge your letter, in wliich, after 

f ervioe Com- O ./ ' ' 

jui.sioners. statinof that a veteran soldier in a city outside of Boston, ad- 

1895 » _ . 

October 28. uiittcd to bc ciititlcd to any preference provided by St, 1895, 
c. 501, who is reported to the commissioners as receiving a 
pension from the United States for total disability, has applied 
under § 2 of said act for appointment without examination on 
the police force of such city, and has filed certificates from three 
citizens of good repute in the community, stating that they 
know said applicant to be fully competent to perform the 
duties, as provided by § 6 of the act, defining the word " appli- 
cation " used in § 2 of the act, you ask my opinion upon two 
questions : — 

J^i'rsf. — Whether this application, made under St. 1895, c. 
501, § 2, in view of the definition of the term "application" 
in § 6 of this act, must be received as conclusive of the qualifi- 
cations ; or whether, in view of the reference in § 2 of the act 
to civil service rule 12, the commissioners still have power to 
investigate the physical qualifications of the applicant. 

Second. — Can the commissioners under the same circum- 
stances investigate the moral qualifications of the applicant 
under the act, provided his application conforms to St. 1895, 
c. 501, § 6? 

The considerations suggested in my letter to your Board, 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 277 

dated July 5, 1895,* furnish the answer to the above questions. 
I then stated that I construed the act of 1895 to be amendatory 
of the legislation already enacted upon the civil service ; and 
that the rules established by the Civil Service Commissioners, 
in pursuance of the authority vested in them, are valid and in 
full force, excepting so far as the act of 1895 expressly repeals 
or modifies them. 

Under the civil service rules it is necessary that the applicant 
for appointment be physically able to perform the duties of his 
position ; also that he be a person of good moral character. 
These requirements are still in force, and, in my opinion, the 
commissioners have the right to determine them. 

By St, 1895, c. 501, § 2, it is provided that veterans who 
have made application for employment in accordance with the 
second section of rule 1 2 of the civil service rules shall he pre- 
ferred in preference to all other applicants not veterans, except 
women; ^^ provided, that the age limit now established by the 
civil service rules, with regard to appointments in the police 
and prison service and fire departments, may be applied to such 
appointments." It may be urged that the proviso above quoted, 
authorizing the application of a single one of the conditions (to 
wit, age) prescribed by the civil service rules, must be taken 
to exclude the application of other terms and conditions in said 
rules. If the section were taken alone, there would be much 
force in the suggestion. But by St. 1887, c. 437, providing 
that veterans need not be examined, it was further provided 
that "age, loss of limb, or physical impairment, which shall 
not in effect incapacitate, shall not be deemed cause to dis- 
qualify under this act." I think the more reasonable construc- 
tion of the proviso in St. 1895, c. 501, § 2, is that it was 
intended to repeal the provision in St. 1887, c. 437, by which 
age was not deemed cause for disqualifying a veteran. 

* See page 243, ante. 



278 OPINIONS OF THE ATTORNEY-GENERAL. 



Public Records, — Tax Returns. 

The general public has no right to demand inspection of the tax returns of 
corporations made to the Tax Commissioner under the provisions of Pub. 
Sts., c. 13, § 38. 

To the Tax J havG received your letter of October 25, inquirino; whether 

1895 the ojSice of the Tax Commissioner ' ' is so far a puljlic record 

' office as that the tax returns of corporations under Pub. Sts., 

c. 13, for taxation purposes are public records, so that the gen- 
eral public has a right to demand their production, or require 
the office to make and certify copies thereof, or allow others to 
do so." 

The provisions of Pub. Sts., c. 13, § 38, require every cor- 
poration chartered under the laws of the Commonwealth to 
make a return to the Tax Commissioner, between the first and 
the tenth days of May annually, of its shareholders, with their 
places of residence and the number of shares belonging to each 
on the first day of May. Under the system of taxation in force 
in this Commonwealth all taxes against corporations other than 
those upon their real estate are assessed liy the Tax Commis- 
sioner of the Commonwealth and paid to the Treasurer of the 
Commonwealth, and thereafterwards distributed to the cities 
and towns where the stockholders reside, in proportion to the 
number of shares owned in each city or town. The return in 
question is required for the purpose of enabling the Tax Com- 
missioner to make this distribution, and, so far as I am in- 
formed, for no other purpose. 

There is no provision of law by virtue of which the general 
public has the right to demand the production of such tax re- 
turns, or to require the Tax Commissioner to make and certify 
copies thereof, or allow others to do so. On the other hand, by 
way of contrast, under St. 1888, c. 307, the valuation and 
assessment books of town and city assessors are expressly 
declared to be open to the public. The absence of any such 
provision in regard to the returns made to the Tax Commis- 
sioner by corporations under Pub. Sts., c. 13, is a strong indi- 
cation that the Legislature did not intend them as public records. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 279 

They are not for the use of the public, and are only required 
for the Tax Commissioner in the discharge of his duty of assess- 
ing and distributing the tax. 

On the other hand, by Pub. Sts., c. 106, § 54, as amended 
by St. 1887, c. 225, every corporation excepting banks, steam 
and street railway companies and insurance companies is re- 
quired to make and tile in the office of the Secretary of the 
Commonwealth annually a certificate stating, among other 
things, the name of each shareholder and the number of shares 
standing in his name. It is further provided by § 59 that this 
certificate shall be examined by the Commissioner of Corpora- 
tions for the purpose of ascertaining if it complies with the 
law, and upon his approval it is to be filed in the office of the 
Secretary of the Commonwealth, who shall receive and record 
the same in books to be kept for that purpose. The object of 
this requirement is obviously to furnish to the citizens of the 
Commonwealth all necessary information both in regard to the 
condition of the corporations specified therein and of the names 
of the stockholders thereof. 

So far as I have been able to discover, the only provisions 
relating to the names and number of shares of stockholders of 
steam and street railway companies are Pub. Sts., c. 112, § 23, 
and St. 1889, c. 222. Under the former statute the Board of 
Eailroad Commissioners shall at all times have access to the 
list of stockholders of said corporations, and may cause the 
same to be kept for its information, or for the information of 
persons owning stock therein. And under St. 1889, c. 222, 
upon request of a stockholder such corporations shall make and 
file in the office of the Secretary of the Commonwealth a list 
of stockliolders and the number of shares held by each. This 
certificate also when so filed is open to the public. There 
appears to be no provision by which the public generally can 
ascertain the names of the shareholders in railroad companies, 
excepting through the intervention of a stockholder acting in 
pursuance of the statutes above quoted. 

But this apparent failure to provide means by which the 
public may obtain the names of the stockholders of railroad 
corporations does not modify my opinion that the returns to 



280 OPINIONS OF THE ATTORNEY-GENERAL. 

the Tax Commissioner are not intended to be public records, 
' ' so that the general public has the right to demand their pro- 
duction, or require the office [of Tax Commissioner] to make 
and certify copies thereof, or allow others to do so." 



To the Trustees 
of the Lyman 
and Industrial 
Schools. 
1895 
November 6. 



Foreigner, — Penal Laws. 

The Trustees of the Lyman School have the right to hold a foreigner com- 
mitted to that school for larceny. 

I beg to acknowledge your letter of October 29, requesting 
my opinion as to the right of the trustees to hold within the 
Lyman School one John G. Alexanian, an Armenian, recently 
committed to the Lyman School for the oifence of larceny. 

The fact that Alexanian is an Armenian does not invalidate his 
commitment to the Lyman School. An Armenian has no more 
right to commit larceny in Massachusetts than an American, 
Living here, he subjects himself to the penal statutes of the 
Commonwealth, as though he were a citizen. 



To the Cattle 
CommisBiouers. 

1895 
November 19. 



Public Records, — Records of Cattle Commissioners. 

The Board of Cattle Commissioners are under no legal obligation to submit 
their records to public examination. 

I have the honor to acknowledge the receipt of your letter 
of October 31, requesting my opinion upon the question 
' ' whether it is the duty of the commission to furnish or expose 
to any or all applicants " the records required to he kept hy 
the commission, under the provisions of St. 1894, c. 491, § 51. 

The section in question is as follows : ' ' The Board of Cattle 
Commissioners shall keep a full record of their doings and 
report the same to the Legislature on or before the tenth day 
of January in each year, unless sooner required by the Gov- 
ernor ; and an abstract of the same shall be printed in the 
annual report of the State Board of Agriculture." 

Under this statute the Board is required to report its records 
to the Legislature on or before the tenth day of January, and 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 281 

may be sooner required to do so by the Governor. I am of 
opinion that this provision is intended to define the whole duty 
of the Board with reference to the inspection of its records, 
and, therefore, to exclude any right of the public generally to 
examine them. 

It should be said that under § 5 of the same chapter the 
records of inspectors appointed by the commissioners are open 
to the examination of the board of health of the city or town 
for which the inspector is appointed ; and that all your records 
are open to the examination of the Auditor, under the pro- 
visions of Pub. Sts., c. 16, § 5. 



Prisoner, — Discharge, — Clothing. 

The amount to be expended in providing suitable clothing for a prisoner upon 
his discharge is limited, by Pub. Sts., c. 220, § 64, to the sum of ten 
dollars. 

I beir leave to acknowledge your letter of October 22, in to the com- 

"" . raissioners of 

which, alter camng my attention to a rule made by you, you Prieons. 
ask my opinion whether said rule is repugnant to the statutes. November 20. 
The rule referred to is in the following language : ' ' The • 
clothing of each prisoner received shall be taken from him, 
and, if worth preserving, shall be cleansed, securely kept and 
restored to him upon his discharge ; each prisoner having a 
sentence of six months or more shall, upon his release, be 
decently clothed with clean garments, with good under-clothing, 
shoes and stockings, and if the release takes place between the 
first of Novenil^er and the first of April, he shall have a decent 
and warm overcoat." 

Pub. Sts., c. 219, § 14, which substantially re-enacts St. 
1879, c. 294, § 10, provides that "The commissioners shall 
from time to time prepare rules, not repugnant to law, for the 
direction of the officers of each jail or house of correction in the 
discharge of their duties, the government, employment, and 
discipline of convicts, and the custody and preservation of the 
property connected therewith ; and shall cause copies thereof 
to be laid before the Governor and Council, who may approve, 



282 OPINIONS OF THE ATTORNEY-GENERAL. 

annul, or modify the same. Jailers, keepers of houses of cor- 
rection, county commissioners, and the directors for public 
institutions in the city of Boston, shall make no rules incon- 
sistent with the rules of the commissioners." 

Pub. Sts., c. 220, § 64, which substantially re-enacts St. 1881, 
c. 126, provides that " The keeper or master of a jail or house of 
correction may, with the approval of the county commissioners, 
expend in aiding any prisoner discharged from his custody such 
sum, not exceeding ten dollars, as in his opinion will assist 
said prisoner in his endeavor to reform. The money so ex- 
pended may in the discretion of the keeper or master be paid 
to the prisoner, or to such person to be expended in behalf of 
the prisoner as the keeper or master may select, or for furnish- 
ing the prisoner with board, clothing, transportation or tools. 
The sums expended by the keeper or master under this section 
shall be allowed and paid to him from the county treasury like 
other prison expenses." 

I am of the opinion that the section last quoted must be taken 
as fixing a limit to the amount to be expended for clothing, etc., 
furnished to a prisoner at the time of his discharge. The au- 
thority conferred upon the commissioners by Pub. Sts., c. 219, 
§ 14, to provide rules, even if it authorizes the rule in question, 
cannot be taken to authorize a rule in respect to a matter as 
to which the statutes have made explicit provision. In so far, 
therefore, as the rule to which you call my attention contem- 
plates an expenditure above the sum of ten dollars, as provided 
by statute, it is without authority. 

The same consideration disposes of the suggestion that ' * the 
master or keeper shall furnish, at the expense of the county, 
necessary fuel, bedding and clothing for all prisoners in his 
custody." This provision obviously relates to prisoners, and 
not to discharged prisoners. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 283 



Private Insane Asylum, — Voluntary Patient. 

A voluntary patient may be received into a private insane asylum, but there is 
no power vested in the officials of such an asylum to detain such a patient 
against his will. 

I have the honor to acknowledge your letter of November Totheinspector 

_.... 1,1 • J ' "^ 1 • 1 of lustitutions. 

14, inquiring wnetner private insane asylums may receive and 1895 
detain what are called "voluntary" patients. No vember 20. 

' ' Voluntary " patients I understand to be those referred to 
by Pub. Sts., c. 87, § 28, which is as follows : "The superin- 
tendent or keeper of any hospital as aforesaid may receive and 
detain therein, as a boarder and patient, any person who is de- 
sirous of submitting himself to treatment, and makes written 
application therefor, but whose mental condition is not such as 
to render it legal to grant a certificate of insanity in his case. 
No such boarder shall be detained for more than three days 
after having given notice in writing of his intention or desire 
to leave such hospital." 

The hospitals which, under the section quoted, are authorized 
to receive such patients, are named in § 26 of the same chap- 
ter. They are the State lunatic hospitals and the McLean Asy- 
lum at Somerville. 

The patients described in § 28 are not insane. They have, 
therefore, the right to make contracts ; and they may not l)e 
confined or detained excepting as specially authorized hy the 
provisions of § 28. 

Private insane asylums are authorized by § 53 of the same 
chapter, providing that ' ' The Governor and Council may license 
any suitable person to establish and keep an asylum or private 
house for the reception and treatment of insane persons." Al- 
though such institutions are licensed especially for the recep- 
tion of insane persons, I see no reason why the keepers of them 
may not receive boarders who are not insane, including those 
of the character referred to in § 28. But such boarders do not 
become subject to the jurisdiction of the Commonwealth, and 
may not be detained against their will for any length of time 
whatever. 



284 OPINIONS OF THE ATTORNEY-GENERAL. 



State Highway, — Liability of Commonwealth for Injuries to 

Travellers. 

A road taken under authority of St. 1894, c. 497, § 2, becomes a State high- 
way upon the filing of the plans and certificate. If it is a new way, the 
State is not liable for injuries to travellers thereon until it is constructed 
and open to public use; if an existing highway, the State becomes liable 
immediately, provided, however, that the road is still left open for public 
travel. 

To the Highway J Imve Considered the question orally stated by your com- 

Commission. i "^ ./ ./ 

1SP5 mission, to wit, as to when, under St. 1894, c. 497, § 2, a 

^ ' highway taken thereunder becomes a State Highway, so as to 

make the State liable for defects and injuries resulting there- 
from to travellers. 

The section in question provides that when a petition is filed 
with the Highway Commission, asking them to take charge of 
a new or existing road as a highway, the commission shall con- 
sider and determine what the public necessity and convenience 
require in the premises ; and, " if they deem that the highway 
shall be laid out or be taken charge of by the Commonwealth, 
shall file a plan thereof in the ofiice of the county commis- 
sioners of the county in which the petitioners reside, with the 
petition therefor and a certificate that they have laid out and 
taken charge of said highway in accordance with said plan, 
and shall file a copy of the plan and location of the portion 
lying in each city or town in the ofiice of the clerk of said city 
or town." I am of the opinion that these proceedings consti- 
tute a taking of the highway liy the Commonwealth analagous 
to the taking of land for the purposes of a highway by county 
commissioners and by municipal boards ; and that, when the 
plan and certificate are filed in the office, the way, if an exist- 
ing town or county way, ceases to be such and becomes a State 
highway. If it is a new way, then it is by such proceedings 
established as a State highway, in the same sense that a new 
way is established by the proceedings of local boards. It fol- 
lows tliat the liability of the town to keep the road is deter- 
mined by these acts ; when the commission ' ' takes charge " 
of the highway, the town is discharged. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 285 

I am a^vare that § 2 further provides that after the filing of 
said plans said highway shall "be laid out as a highway, and 
shall be constructed and kept in good repair and condition as a 
highway by said commission." The words " lay out " are some- 
times used in the statutes of the Commonwealth to designate 
the act of taldng, and at other times as descriptive of the work 
of construction. It is obvious from the connection that the 
laying out referred to by the language quoted, inasmuch as it 
is to be done after the filing of the plan and the certificate, 
refers to the work of construction, and not to the act by which 
the title of the road is established. The certificate recites in 
terms that the commission "have laid out and taken charge of" 
the way. The expression "laid out," so used in the certificate, 
obviously signifies the establishment of the way as a State high- 
way. The further provision that after the filing of the certificate 
the highway shall be ' ' laid out " must therefore refer to the 
construction of the w^ay ; for it would be absurd to provide for 
its being established twice. 

As to the liability of the State for injuries resulting from de- 
fects after the way has been taken by the filing of the certifi- 
cate and plan referred to in § 2, the situation is the same as 
when a road is established by a county or municipal board. If 
it is a new way, there is no liability until the road is constructed 
and open to public use. Bowman v. Boston, 5 Cush. 1,7. If 
the taking by the commission is of an existing highway, the 
Commonwealth becomes liable for its condition immediately, if 
it is permitted to be open to travel. It is to be presumed that 
the commission will not invite the public to use the road until 
it has ascertained whether it is safe for use or not. If it is 
judged expedient by the commission to reconstruct the high- 
way, the road may of course be closed up while it is rendered 
dangerous by the work, as in the case of ordinary highways. 



286 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
Auditor. 

1895 
November 23. 



Metropolitan Park Commission, — Expenditure of Appropria- 
tion. 

Two million dollars appropriated by St. 1893, c. 407, St. 1894, c. 483, and St. 
1895, c. 305, may be expended by the Metropolitan Park Commission for 
any purpose for which it is authorized to expend money; provided, that 
not over ninety per cent, can be expended in acquiring land. 

The appropriation of three hundred thousand dollars, made by St. 1894, c. 
509, can be expended only for parks on the banks of the Charles River; 
although the sum appropriated under the general appropriation may still 
be expended upon this district, notwithstanding the special appropriation. 

I have the honor to acknowledge your letter of the 2 2d 
inst. , asking my opinion as to the proper construction of the 
various acts appropriating money for the purposes of the Metro- 
politan Park Commission, to wit : St. 1893, c. 407 ; St. 1894, 
c. 483 ; St. 1894, c. 509 ; and St. 1895, c. 305. 

The original act (St. 1893, c. 407) which created the Board au- 
thorized it to acquire, maintain and make available " open spaces 
for exercise and recreation," and to take, or acquire by pur- 
chase, gift or otherwise, lands therefor. The sum of $1,000,000 
was appropriated to meet the expenses incurred under the pro- 
visions of the act. The only limitations imposed upon the 
expenditures of the Board under this appropriation seem to 
have been that its jurisdiction was confined to certain cities and 
towns named in said act, which were called the metropolitan 
park district ; and that it should not take or purchase land to 
an amount exceeding in value ninety per cent, of the money 
available for its use. 

St. 1894, c. 483, gave to the commission the right to acquire 
all rights of the public, or of any corporation or individual, in 
the property known as Eevere beach, including the location 
and railroad of the Boston, Revere Beach & Lynn Railroad 
Company. Revere was named in the original act as one of tlie 
towns comprised in the metropolitan park district ; and no 
legislation was necessary to authorize the Board to estal^lish a 
park in that town. The object of the statute was undoubtedly 
to enable the Board to acquire for park purposes the rights of 
the public in the flats, and also the location of the railroad com- 
pany, which, under the original act, it would have had no right 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 287 

to take. In the fourth section of this act the original appro- 
priation was increased $500,000 ; but there is nothing in the 
terms of the statute to limit the increase to Revere beach. It 
was plainly intended as an increase of the original appropriation 
from $1,000,000 to $1,500,000. St. 1895, c. 305, further in- 
creased the original appropriation by maldng the total amount 
$2,000,000 instead of $1,500,000. Both tliis act and the pre- 
ceding act are amendatory of the original act, and the whole 
sum of $2,000,000 thus appropriated may be expended by the 
Park Commission for any of the purposes for which they are 
authorized to expend money, with no other limitation upon 
their authority than that not more than ninety per cent, of the 
whole sum can be expended in acquiring land. 

St. 1894, c. 509, is a special act concerning the Charles River. 
It authorizes the Board to " expend the sum of $300,000 in ad- 
dition to any and all sums hitherto authorized to be expended 
by them " by the original act and by all acts in addition thereto 
or in amendment thereof, for the purpose of acquiring and 
making available open spaces for exercise and recreation along 
or near the Charles River. I am of opinion that this appro- 
priation is not to be regarded as an increase of the general 
appropriation, but as a special appropriation for parks on the 
banks of the Charles River. It does not, however, otherwise 
limit the authority of the Board. In so far as under the pre- 
vious acts any part of the general appropriation might have 
been expended for " open spaces for exercise, etc.," along or 
near the Charles River, it may still be so expended, notwith- 
standing the special appropriation in this act. 



Great Pond, — Lease, — Rent. 

The Commissioners on Inland Fisheries and Game have no authority, upon 
leasing one of the great ponds belonging to the Commonwealth, to au- 
thorize the rental thereof to be paid to the towns of West Tisbury and 
Edgartown. 

I have your letter of November 20, stating that you are about miss^oneTof 
to lease Oyster Pond in the county of Dukes County, acting and Game':"'"^^ 
under the authority of St. 1895, c. 180, and askino; if you have _ ^^^^ 

•^ ' ' O J November 27. 



288 OPINIONS OF THE ATTORNEY-GENERAL. 

the right to have the rental paid to the towns of West Tisl)ury 
and Edgartown. 

The only possible ground for doubt that can arise in the mat- 
ter is the fact that, as I am informed, you have heretofore leased 
another pond, to wit, Tisbury Great Pond, by a lease which 
purported that the rental should be paid to the town of Tisbury. 

Notwithstanding this fact, I think the commission has no 
right to make a contract by which the rental shall be diverted 
from the State treasury. Oyster Pond is a great pond, and is 
the property of the Commonwealth, There is no authority to 
divert the rental of it excepting the Legislature. 



Legacy Tax Act, — Retrospective Statute. 

St. 1896, c. 307, exempting bequests not exceeding $500 from taxation under 
the legacy tax act, is not retrospective. 

T?ei^urer ^ havc your letter of November 5, requesting my opinion as 

1895 to whether St. 1895, c. 307, is retrospective in any respect. 

November 29. . . ./ i 

The statute in question provides that ' ' No bequest of a testa- 
tor whose estate is subject to taxation under the provisions of 
chapter 425 of the Acts of the year 1891 shall be subject to the 
provisions of said chapter unless the value of such bequest ex- 
ceeds the sum of five hundred dollars, nor shall bequests to 
towns for any public purpose be subject to a tax under the pro- 
visions of said chapter." 

In response to an inquiry by the Treasurer of the Common- 
wealth, asking the opinion of the Attorney-General upon cer- 
tain questions arising under the collateral inheritance tax statute 
(St. 1891, c. 425), my predecessor, Mr. Pillsbury, in his opin- 
ion dated June 19, 1893,* advised him that the " Treasurer of 
the Commonwealth has neither the power to determine nor the 
duty to advise in advance in any case as to whether a particular 
legacy is taxable, or for how much it is taxable, or when the 
tax shall be paid, or any other such question. The statute 
makes it the duty of executors, administrators and trustees to 

* See page 85, ante. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 289 

ascertain, or cause to be ascertained, the amount of all taxes 
due the Comnionwoalth, and to pay them within a prescribed 
period, and makes it the duty of the court to find that all such 
taxes have been paid before allowing settlement of the accounts. 
The Probate Court is the only place in which such questions 
can be determined, and is undoubtedly the only place in which 
the Legislature intended to have them determined. There is 
no reason to believe that the Legislature intended to cast this 
duty or any part of it upon the Treasurer of the Common- 
wealth." He further advised the Treasurer that it was his duty 
to claim in each case that might arise ' ' the maximum amount 
which may be due to the Commonwealth under any construc- 
tion of the statute." I see no reason to dissent from these 
views. The collateral inheritance tax act statute confers the 
jurisdiction of the whole subject matter upon the Probate 
Court. In my opinion, you have no right to waive any claims 
the State may have under any reasonable construction of the 
law. 

The question contained in your letter, however, cannot be of 
great importance. The taxes due from the estates of people 
who died in 1891 and 1892 were due and payable prior to the 
passage of the act in question. The only legacies which the 
act can possibly affect if retrospective are those of five hundred 
dollars or less of persons who died since April, 1893, being a 
period within two years prior to the passage of the act. The 
number of such legacies must be comparatively insignificant, 
and the tax of five per cent, would be a very small amount. 
The same may be said as to legacies to towns for public pur- 
poses ; although it would seem that such legacies are not taxable 
if for charitable or educational purposes. .Essex v. Brooks, 164 
Mass. 79. 

But I think that the statute is not retrospective.* It has been 
held that the tax is not upon the property, but upon the jorivi- 
lege of transmission and succession. Minot v. Winthrop, 162 
Mass. 113, 115. The exercise of the right of transmission and 
succession is complete when the will is probated. The fran- 

• Attorney-General Pillsbury was of opinion that the legacy tax act (St. 1891, c. 425) 
was not retrospective. See pp. 28 and 32, ante. 



290 OPINIONS OF THE ATTORNEY-GENERAL. 

chise for which the tax is levied has then been enjoyed, and the 
right to the tax thereupon accrues to the Commonwealth. The 
fact that it is not payable until some later period does not mod- 
ify this proposition. 

If the statute under consideration is retrospective, it must 
operate by way of discharge of a tax to which the Common- 
wealth is already entitled. This is not in accordance with the 
general rule of construction of statutes. One who claims ex- 
emption from a tax must bring himself strictly within the terms 
of the statute under which he claims exemption ; much more 
one who seeks to be relieved from the payment of a tax to 
which he has become subject. 

It is also well settled that a statute is not to be given a retro- 
spective effect unless such a construction is necessary from its 
language. United States v. Heth, 3 Cranch, 399, 413. 



Massachusetts Reformatory, — Board of Health of Concord, 
— Police Power. 

The board of health of the town of Concord has no authority to inspect or 
order changes in the plumbing and drainage of that part of the Mas- 
sachusetts Reformatory within the walls, or in the houses occupied by 
the superintendent or deputy superintendent upon the front of the prison 
building, or in the unattached tenements belonging to the reformatory 
and upon the land of the Commonwealth; nor has it authority to make 
regulations concerning the keeping of swine by the reformatory. 

The board has the power, however, to order the discontinuance of the trans- 
portation of swill through the streets of the town. 

The town of Concord has authority to demand that the dogs belonging to the 
reformatory shall be licensed. 

To the Super- xhe qucstions submitted in your letter of October 30 are 

intendent of the i •' 

Reformutor"* important, and are by no means free from diificulty. They 
1895 involve an inquiry into the extent of the jurisdiction of a local 

board of health over the property of the Commonwealth and 
over its officers in their charge of such property. They are : — 
"1. Has the board of health of the town of Concord au- 
thority to inspect the plumbing and drainage of that part of 
the Massachusetts Reformatory within the walls, or order 
changes therein? 



December 4. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 291 

"2. Has the said board authority to inspect the houses 
occupied by the superintendent and deputy superintendent 
upon the front of the said prison building, or to order changes 
therein ? 

"3. Has the said board authority to inspect the unattached 
tenements belonging to the said reformatory and upon the land 
of the Commonwealth, and occupied by its officers, or to order 
changes therein? 

"4. Has the board of health authority to make regulations 
concerning the keeping of swine by the Massachusetts Reform- 
atory, and, if so, do we come under the regulation prohibiting 
piggeries to be within six hundred feet of the highway ? 

"5. Has the said board of health authority to order the dis- 
continuance of the transportation of swill from the State Prison 
at Charlestown to the reformatory piggeries ? 

" 6 . Has the town of Concord authority to demand that the 
dogs belonging to the Massachusetts Reformatory shall be 
licensed ? " 

The reformatory at Concord was first established as a State 
Prison. By Res. 1872, c. 39, the inspectors of the State 
Prison, which was then at Charlestown, were directed to report 
to the next Legislature, among other things, upon the expe- 
diency of building a new prison upon another site. The in- 
spectors having reported that a new prison was expedient, an 
act was passed (St. 1873, c. 155) authorizing the Governor to 
appoint a board of commissioners, with full power to select a 
plan of a State Prison, to purchase an eligible site therefor 
within the limits of the Commonwealth, and to cause to be 
erected thereon a suitable prison, "together with such house- 
hold accommodations for the warden and his family and for 
subordinate officers and attendants as the said board may deem 
necessary." The commission entered upon its work, and, after 
much discussion and consideration of plans, selected the present 
site of the reformatory at Concord, being a tract of more than 
one hundred acres, and proceeded to erect thereon a prison 
with workshops, dwelling-houses for the officers, cook houses, 
a chapel and other buildings deemed necessary for the main- 
tenance of a prison. Its plans and doings were reported to the 



292 OPINIONS OF THE ATTORNEY-GENERAL. 

Legislature (see Legislative Documents, 1875, House No. 120; 
1876, Senate No. 3, House No. 70), and appropriations were 
made l)y the Legislature from time to time for the prosecution 
and completion of the work in accordance with those plans. 

By St. 1884, c. 255, the State Prison, which had been estal> 
lished in the Imildings built therefor at Concord, was ordered 
to be removed back to Charlestown ; and the Governor was 
authorized to issue a proclamation ' ' establishing the Massa- 
chusetts Reformatory in the buildings now owned by the Com- 
monwealth in the town of Concord and occupied as the State 
Prison, and said buildings and all lands and buildings owned 
by the Commonwealth in said town of Concord are hereby 
devoted to the use of said reformatory." The reformatory so 
established comprised, and still comprises, buildings used as 
dormitories for the prisoners, other buildings for workshops, 
cook houses, farm buildings, dwelling-houses for the warden 
and for the other officers of the institution, and an extensive 
farm, carried on as a part of the institution. Some of these 
buildings are enclosed by the prison wall, while others, particu- 
larly the officers' houses, are not so enclosed, but yet are on 
the land taken and held by the Commonwealth for prison 
purposes. In the construction of these l^uildings elaborate 
provisions were made for plumbing and other sanitary arrange- 
ments, all of which were duly reported to and approved l)y the 
Governor and the Legislature. Whatever buildings or struc- 
tures, therefore, exist upon the land owned by the Common- 
wealth in Concord, are a part of the reformatory, and may be 
considered to exist and to be established as such by authority 
of the Leo;islature. 

St. 1884, c. 255, § 28, provides that "The Commissioners 
of Prisons shall have the general supervision of said reform- 
atory, and shall make all necessary rules and regulations for 
the government and direction of the officers in the discharge of 
their duties, for the discipline of the prisoners and the custody 
and preservation of the property of said reformatory." Section 
24 provides that "The superintendent . . . shall have the 
management and direction of the reformatory under the rules 
and regulations of the same, . . . and shall have the custody 



HOSEA M. KNOWLTON, ATT0RNEY-GENP:RAL. 293 

and control of the buildings and property of the Commonwealth 
connected therewith." Section 32 provides that "Prisoners 
confined in said reformatory may be employed, in the custody 
of an officer, upon any land or buildings owned by the Com- 
monwealth in the town of Concord." 

The first four questions contained in your letter raise the 
inquiry whether in any respect this institution, the general con- 
trol and manao-ement of which is so vested in officers of the 
Commonwealth designated for that purpose, is in any way sub- 
ject to the supervision and regulation of the board of health 
of the town of Concord. 

The town board of health derives its authority from the pro- 
visions of Pub. Sts., c. 80. Under this statute it is authorized 
to "make such regulations as it judges necessary for the public 
health and safety, respecting nuisances, sources of filth and 
causes of sickness, within its town" (§ 18) ; to "examine into 
all nuisances, sources of filth and causes of sickness, within its 
town ..." and to "destroy, remove, or prevent the same as 
the case may require" (§ 20) ; to "order the owner or occu- 
pant at his own expense to remove any nuisance, source of 
filth, or cause of sickness, found on private property" (§ 21) ; 
and if the owner or occupant fails to comply with the order re- 
lating thereto, to "cause the nuisance, source of filth, or cause 
of sickness, to be removed," and to collect the expense thereof 
from the ' ' owner, occupant, or other person who caused or per- 
mitted the same" (§23). It is further authorized "when sat- 
isfied upon due examination that a . . . building, in its town, 
occupied as a dwelling-place, has become, hy reason of the 
number of occupants, want of cleanliness, or other cause, unfit 
for such purpose," to "issue a notice in writing to such occu- 
pants, or any of them, requiring the premises to be put into a 
proper condition as to cleanliness, or, if they see fit, requiring 
the occupants to quit the premises within such a time as the 
board may deem reasonable " (§ 24). Section 27 provides also 
that ' ' When the board thinks it necessary for the preservation 
of the lives or health of the inhal)itants to enter any land, 
building, premises, or vessel within its town, for the purpose 
of examining into and destroying, removing, or preventing a 



294 OPINIONS OP^ THE ATT0RNP:Y-GENERAL. 

nuisance, source of lilth, or cause of sickness, and the board or 
any agent thereof sent for that purpose is refused such entry, 
any member of the board or such agent may make complaint 
under oath to any justice of any court of record or to two 
justices of the peace of the county" . . . who may "issue a 
warrant, directed ... to any constable of such town, com- 
manding him to take sufficient aid and . . . repair to the 
place where such nuisance . . . may be, and to destroy, re- 
move, or prevent the same, under the directions of the board." 

St. 1894, c. 455, § 7, provides that "every town having a 
system of water supply or sewerage, shall l)y ordinance or by- 
law, within six months from the passage of this act, presenile 
rules and regulations for the materials, construction, alteration 
and inspection of all pipes, tanks, faucets, valves and other 
/ fixtures by and through which waste water or sewage is used 

and carried. . . . But nothing in this section shall prevent 
boards of health from making such rules and regulations in 
regard to plumbing and house drainage hitherto authorized by 
law, which are not inconsistent with any ordinance or by-law 
made under the authority of this section." 

The board of health of the town of Concord, in pursuance 
of the authority of the statutes above quoted, and perhaps of 
other statutes not quoted, has established certain regulations 
relating to disinfection, swine, swill, etc., and to the prevention 
and restriction of disease ; and also certain rules in relation to 
plumbing. These regulations and rules arc minute and explicit 
in their character, providing for the manner of constructing 
privies, water-closets, privy vaults, sewers and cesspools ; and 
for the manner of keeping and removing swill and house offal, 
for the cleansing of cellars, for the keeping of swine, for the 
disinfection of houses in which contagious diseases break out 
and for the construction of plumbing in dwelling houses. No 
question is made that these regulations are lawful and within 
the authority conferred upon the board. 

It is obvious that the enforcement of these rules would be in 
many respects inconsistent with the exclusive control and dh'ec- 
tion of the buildings and property of the reformatory, which by 
the statutes are vested in the officers established for that 



HOSEA M. KNO^yLTON, ATTORNEY-GENERAL. 295 

purpose. Some of them could not be enforced except at the 
expense of prison discipKne ; while others would require the 
admission of persons not connected with the reformatory within 
the walls of the institution, without the authority, and even 
against the objection, of the persons in charge. It is not 
difficult to come to the conclusion that, so far as concerns, for 
example, the inspection of the plumbing within the walls of the 
reformatory where persons are confined under sentence of court, 
and in the exclusive control and care of the officers of the 
State, the regulations of the board of health cannot well be en- 
forced, and must be held to be inapplicable. 

The same objection does not arise in the case of oflicers' 
dwellings, which are at some distance from the main prison, 
and are not enclosed by its walls ; nor, perhaps, even in the 
case of the Avarden's house, although, as I am informed, it is 
connected with the prison itself. I am told also that the swine 
are kept outside the prison. It would be practicable, and per- 
haps not necessarily inconsistent Avith the government of the 
convicts, for the board to inspect and regulate the plumbing 
in those buildings. Nor would it be subversive of prison dis- 
cipline if the rules of the board Avith relation to the keeping of 
swine were enforced upon the grounds of the institution. But 
I am of opinion that it was not the intent of the Legislature to 
subject the conduct of the reformatory, or the control and man- 
agement of the property connected therewith, to the regula- 
lations or interference of any other tribunal or board than the 
officers constituted and designated therefor, to wit, the Com- 
missioners of Prisons, and, under them the superintendent 
of the reformatory. As Avas well stated by Birdseye, J., in 
People Y. Eoff, 3 Parker (N. Y.) Criminal Eeports, 216, 225 
(a case iuA^olving the validity of the regulation of a town board 
of health over the property of the State) : < ' The institution of 
the state, . . . the object of its bounty and its constant legis- 
lative attention, presided over by officers carefully selected by 
the highest executiA^e authorities of the State, and who are \'ested 
with large powers and set apart for the performance of highly 
important and delicate duties, permanent, comparatively speak- 
ing, in the tenure of their offices . . . is to be preserved, to 



296 OPINIONS OF THE ATTORNEY-GENERAL. 

be kept in full vigor and efficiency ; it is not to be sacrificed to 
the local, limited Ijoard of health of a town or village, whose 
members may change from year to year." 

This view derives some support from Pub. Sts., c. 80, § 49, 
descriliing the duties of town boards of health. This section 
provides that "When a person confined in a common jail, house 
of correction, or workhouse, has a disease which, in the opinion 
of the physician of the l)oard ... is dangerous to the safety 
and health of other prisoners or of the inhabitants of the town, 
the board shall by its order in writing direct the removal of 
such person to some hospital or other place of safety, there to 
be provided for and securely kept so as to prevent his escape 
until its further order." This provision would obviously be un- 
necessary if it were the intention of the Legislature that the 
jurisdiction of boards of health of towns should extend over 
State or county penal institutions situated wdthin the limits of 
the town. 

The estaljlishment of a tow^n board of health, and the author- 
ity given to it to make regulations with regard to sanitary 
matters, are a delegation of the police power of the Common- 
wealth. Such a delegation is to be strictly construed. It is a 
well-recognized principle, governing the interpretation of stat- 
utes delegating such authority, that boards of health are to be 
strictly confined to and by the statutory provisions of the acts 
by which they are created. Spn'iiff v. Ili/de Park, 137 Mass. 
554 ; Rogers v. Barker, 31 Barb. N. Y. 447 ; Waftqum Res- 
ervoir Co. y. Mackenzie, 132 Mass. 71. Nor can a local board 
under a general grant of authority adopt a by-law which is 
repugnant to the public policy of the State. Dillon, Municipal 
Corporations, 4th Ed., Vol. 1, § 329, and cases cited. It has 
been uniformly held, too, that a legislative grant of authority 
is made su})ject to certain implied reservations. For example, 
in the case oi' Beer Co. v. 3Iassachuse(ts, 97 U. S. 25, a cor- 
poration was chartered by the State to manufacture and sell 
liquors. At a later date the Legislature passed a prohiliitory 
liquor law. The court held that the charter w^as subject to the 
implied reservation of control under the police power of the 
State. So, too, when a general grant is given to a railway 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 297 

company to take land for the construction of its road, there is 
an implied exception that its right shall not extend to the land 
of the State. It is a presumption of law that the Legislature 
in creating its laws has primarily in view the establishment of 
rules reo^ulatino; the conduct and affairs of the citizen and not 
those of the sovereign. Endlich on the Interpretation of 
Statutes, § 167. 

The fountain of the police power of the Commonwealth is 
the Legislature, acting under the authority of the Constitution. 
The Legislature has seen fit to delegate a portion of this police 
power to local boards of health. Although this delegation is 
absolute in terms, it is not to ])e construed as exclusive of the 
authority of the Commonwealth, or as against its public policy. 
It would certainly be against public policy to hold that a local 
and transient board should have greater authority over the 
property of the Commonwealth, cared for and controlled hy 
the officers of the Commonwealth, acting under direct authority 
of the Legislature, than those officers themselves. It is much 
more consistent to assume that in the delegation of police 
power to boards of health there is an implied reservation as to 
the property of the Commonwealth which is specifically and 
fully provided for by legislation, and the care and control of 
which are committed to boards and officers established for that 
purpose and acting under the direction and authority of the 
Legislature. Any other position is inconsistent with the sov- 
ereignty of the Commonwealth. It follows, therefore, that, 
although the delegation of authority to local boards of health 
is general in its terms, and purports to embrace all persons 
and property within the limits of the town, there is an implied 
exception of such property as is cared for and controlled by 
the Commonwealth itself, and under its special and peculiar 
jurisdiction. 

I am of opinion, therefore, that your first three questions 
relating to the authority of the Board of Health of the town 
of Concord to inspect and order changes in the plumbing and 
drainage (1) of that part of the reformatory within the walls, 
(2) of the superintendent's house, (3) of the unattached tene- 
ments belonging to the reformatory and on the land of the 



298 OPINIONS OF THE ATTORNEY-GENERAL. 

Commonwealth and occupied by its officers, must be answered 
in the neofative. 

The same considerations, in my opinion, apply to the keep- 
ing of swine within the limits of the property of the Common- 
wealth occupied by it for the purposes of the reformatory. It 
is unnecessary to decide whether the penal statutes of the Com- 
monwealth, or even such provisions of the common law as have 
the force of penal statutes, are in all cases applicable to the offi- 
cers of the Commonwealth. Many of them, obviously, are so 
applicable. An officer of the Commonwealth, even under the 
direction of the superintendent or the Commissioners of Pris- 
ons, may not commit felony or any other grave crime or mis- 
demeanor. On the other hand, statutes relating to hours of 
labor and to fire-escapes, and even the ordinary rules of law 
relating to assault, are inapplicable to the conduct of the re- 
formatory. It may be a question whether, if the officers of the 
reformatory permitted a preventable nuisance to exist upon the 
land of the Commonwealth, such, for example, as a decaying 
heap of vegetable matter, a filthy and offensive piggery or other 
source of pollution of the health of the neighljorhood, they 
could not be indicted and punished for maintaining a nuisance. 
It is not to be presumed that the officers of the Commonwealth 
will direct or authorize acts which are in violation of the rights 
of the community; and if such acts occur, it may well be that 
the court would hold them to be unauthorized ; or, if authorized, 
that the persons in charge exceeded their own authority. So, 
if the keeping of swine should become, in fact, a nuisance to 
the extent that people residing in the neighborhood were en- 
dangered in their health, it may be that the persons in charge 
or responsible for such keeping would be liable to be indicted 
therefor as for a nuisance. 

But this is a very diff'erent question from that which involves 
the right of the local board of health to prescribe an arbitrary 
distance from the highway within the limits of which swine 
shall not l)e kept. That is a local police regulation in which a 
limit is fixed for convenience, and under which the question of 
the actual nuisance does not arise. An offensive and unhealthy 
pigsty more than six hundred feet from the highway could not 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 299 

be complained of under such a rule ; while, on the other hand, 
one that was clean and in fact inoflensive would still be unlaw- 
ful within that limit. Even if the officers are liable for main- 
taining what is in fact a nuisance, it by no means follows that 
they are subject to the regulations of the board of health with 
respect to the place where swine shall be kept, or that, in order 
to keep them, they shall be required to obtain a license from 
the board. I assume that the keeping of swine is an incident 
of the business of carrying on the reformatory, an institution 
which involves manufacturing, farming and other industries, 
carried on under the exclusive jurisdiction of the State. For 
the reasons above stated with reference to the plumbing, I am 
of opinion that the rule of the board of health which prohibits 
the keeping of swine within six hundred feet of the highway 
does not apply to the land of the Commonwealth which com- 
prises the reformatory. 

Question 5, relating to the right of transfer of swill through 
the pul)lic streets, stands upon a dilierent principle. There is 
no exclusive authority over the streets of Concord conferred 
upon the prison officers. When they leave the property set 
apart for the uses of the Commonwealth and travel upon the 
public streets, they should be, and in my opinion are, subject 
to all reasonable regulations and laws, whether of the Com- 
monwealth or of the town or its officers, in regard to the use 
of such streets. And if swill is carried by the officers of the 
Commonwealth through the streets of Concord in violation of 
the regulations of the board of health, I think the persons so 
offending may be prosecuted and convicted, and that they can- 
not plead in justification any authority or direction of the offi- 
cers of the institution. 

The statutes of the Commonwealth (Pub. Sts., c. 102) pro- 
vide for the registration, numbering, describing and licensing 
of dogs. This is a police regulation, made for the protection 
of the community. The license fee is not a tax. It is not au- 
thorized or designed for the purposes of a revenue, general or 
local, but is in the nature of a license under a special police 
regulation, and is an exercise of the police power rather than 
the power to levy excises. Desty on Taxation, 1404 ; Blair 



300 



OPINIONS OF THP: ATTORNEY-GENERAL. 



V. Forehand, 100 Mass. 136, 142, 143. The object of the law 
may be said to be the identification and regulation of dogs run- 
ning at large. There is, it is true, no exemption in the statutes 
of dogs Avhich are not allowed to run at large, and it may well 
be that the Legislature contemplated the possibility that dogs, 
which, although not ])easts ferca nattine, are yet less under sub- 
jection than neat cattle and other like domestic animals, would 
run at large. I see no reason why dogs kept by the officers 
of the Commonwealth, even though they be the property of 
the Commonwealth, should not be registered, described and 
licensed ; and, inasmuch as the fee is not in the nature of a 
tax, but for the registration and license, it should be paid as 
well in the case of dogs kept by officers of the Commonwealth, 
or owned by the Commonwealth, as in the case of other dogs. 
It would destroy the purpose of the law if any dogs were al- 
lowed to go at large unlicensed, and without the provisions for 
identification prescribed l)y the statutes relating to the licens- 
ing of dogs. The Commonwealth, of course, may not be prose- 
cuted for the keeping of an unlicensed dog ; but whoever, 
whether a State officer or other person, keeps a dog, in my 
opinion, must have him licensed and pay the fee therefor, and 
is subject to the penalties of the statute for failure so to do. 



Corporation, — Certificate op Increase of Capital, — Fee. 

The Secretary of the Commonwealth has uo authority to demand a fee from 
a corporation upon its filing a certificate of increase of its capital stock. 



To the 
Secretary. 

1895 
December 10. 



I take pleasure in acknowledging your request for my opin- 
ion whether a fee can be demanded from a corporation, subject 
to the provisions of Pub. Sts., c. 106, for filing and recording 
a certificate of increase of capital in any instance where fees 
aggregating two hundred dollars have previously been paid by 
such corporation for filing and recording its organization certi- 
ficate and certificates of increase of capital. 

The provisions of Pub. Sts., c. 106, § 84, regulate the collec- 
tion of fees in such cases. Under the provisions of this statute 
you have no authority to demand a fee in the instance cited. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 301 



Labor Statistics, — Enumerator, — Compensation. 

An enumerator appointed under St. 1894, c. 224, who is directed to correct 
deficiencies in liis returns, is entitled to payment for the time consumed 
by him in maliin<^ such corrections. 

I have the honor to acknowledge vour letter of the 4th inst., To the chief of 

O ./ ' the Bureau of 

in which you inquire, lirst, in case the returns of an enumer- J^gtics.^'''" 
ator are found to be defective and not properly made, and he '^^^ 

J . December 14. 

is directed to coirect the deficiencies, whether he has a valid 

claim for payment for the time consumed by him in making 
such corrections ; second, in case of a conflict of opinion as to 
the meaning of the instructions given to enumerators, so that 
a question arises as to whether the work of an enumerator has 
been done in accordance with the instructions or not, has the 
enumerator a valid claim against the decision of the chief, or is 
liis decision in such cases conclusive? 

St. 1894, c. 224, § 8, provides that the enumerators shall, 
before entering upon their duties, take and subscribe an oath 
or affirmation that they will ftiithfully perform the same to the 
best of their ability. The same section provides that in mak- 
ing their returns they shall sign and transmit therewith a cer- 
tificate that the information reported in such returns is correct 
to the best of their knowledge and belief. 

Section 4 provides that in any case where an enumerator 
shall ])e found incompetent or derelict in the performance of 
his duties his commission may at any time be revoked by the 
chief of the bureau and another enumerator may be appointed 
in his place. 

Section 12 provides that if an enumerator is guilty of wilful 
deceit or falsehood in the discharge of his duties he shall forfeit 
a sum not exceeding two thousand dollars, or be imprisoned 
for not more than one year. 

Section 14 provides that the sum of three dollars for each 
day of nine hours actually employed in the service shall be 
paid to each enumerator employed under the provisions of the 
act. 

It is to be observed that under the above provisions the enu- 



302 OPINIONS OF THE ATTORNEY-CIKNF.RAL. 

mcralor is pnid no! for pioc-c work, Iml for i\w lime duriiiiji; 
Avliit'li ho was actually (MU})I()y{Hl. 'Vhv slatulc makes ample 
])rovisioii for (liscliari>;o in case ol' incomix'leiu'v, ami also for 
|)imislmHMi( in case of deccMf or lalsehood. In Ihe ordinary 
employment of a day-laborer, the employer may discharge him 
if he is incompetent; but if he chooses to retain the employee, 
and directs him to do th(> work o\er again, the employee wouhl 
have a good claim against his cm|)I()yei- foi- Ihe addilioiial time 
employe(l. I am of the o})inion, th(>r(>fore, that an <Mmmerator 
is entitI(Ml to payment for each day actually employed, Avhether 
it bo in correcting mistakes, or oth(>rwise. Tho chief has his 
remedy by the }K)\ver of discharge and iine. 

In view of my opinion upon the lirst question contained in 
your letter, I })resume the second (luestion becomes unimport- 
ant. If, however, such a (iu(\stion should arise, it would I'elatc 
rather to the rights of the enumerator than to tho duties of the 
bureau, and is therefore not one ui)on which I am called to 
advise. 



ArruoruiATiON, — Expenditiiue. 

St. 1894, c. 42G, authorizes the State Board of Health " to expend during the 
current year a sum not exceedhiii twenty tliousand dollars "for certain 
purposes. Tiie Hoard may incur such expenses until the llrst Wednesday 
of January, 18!)G. 

X°l^•' The question stated in your lettor of Docembor 11 is as fol- 

i89f. lows: Under St. 181)4, c. I'H), § 1, it is i)rovided that "The 

ocem^r . ^(.,|^, ]^,).,,.,] ^f lX(>;il[l, is hereby authorized and dirin-ted to 
expend during th(\ curr(>iit year a sum not exceeding t\v(Mity 
thousand dollars, in dredging tho bars in tho Concord and 
Sudbury rivers," etc. The Board of Health under tho author- 
ity of this statute proceeded with the Avork assigned to it and 
made contracts for the jierformance thereof, which contracts 
ex|)irod Dec. 1, 1805. Is tho expenditure of this appropriation 
limited to the year 18!)1 ? 

St. IS!) 1, c. ■['>(), is to bo construed in connection w'ith Pub. 
Sts. c. 16, § 30, which i)rovides sid)stantially that an appropria- 
tion that is not expended within the })olitical year in which it is 



TT()>I<:.\ IM. KNOWI/rON, AlTOKNKY-CiKNKUAI.. 303 

Tnn(l(\ ov widiin i\\o siicccHMliiiii; ycnr, sh:ill rcviM't (o lli(> i^ciktmI 
treasury ; aiid (hat " An ai)i)i-{>|)ri;i(i()ii loi- ;i spccilic year shall 
not ])c couMvnvd to prevent the ap[)Iie;itio!i of an uncxi)encled 
l)iihuu'(> in th(\ loUow ini:; year to the stuno objin'ts," 

In view of the provisions of the j2;en(u-al statute al)ov(^ (luotod, 
I SCO no reason to doubt that the Hoard of Health may proceed 
with its work durini!; the {)olitieal year suee(>edin<j; that in whieJi 
the act was passed, or until tli(> first W' edn»>s(l;iy ol" January, 
iSiXi. It is to ])o pr(>suined tiiat tlu^ Leu^islature had in mind 
tlu> provisions of the Publico Statute's above (|uoted, and did not 
intend to limit tlu^ time within which tlu^ appropi-iation so 
specially made should bo expended to the year for which it 
was mado. 



I RnnUfl 



Savinos Ranks, — Guaranty Funh. 

SavitiKf^ l>aiika have no rif;;ht, to iiialntaiii and hold as a K'larajily fund more 
llian live per cent, of Llio total unionnt of tlioir iloposits. 

The question stated in your h^ttcir of December 17 calls for a Totho 
construction ol St. 18i)|, c. ,')17, § 25, Avhich provides sub- <J"""»'""'"""''»- 
stantiaJly that (>very savinos baid< shall " reserve as a- i^uaraiity i)i..-,M.iiior2i. 
fund, from the net profits which have accumulated durino- the 
six months tluMi next pn'cedino;, not l(>.ss than one-(>ioh(li noj- 
nioro than one-fourth of one ))er cvwi. of the whole amount of 
deposits, until such fund amounts to li\(> per cent, of the 
wdiolo amount of the cU^posits, which fund shall be ther(\'ift(>r 
maintained and held to m(>et. losses in its busin(\ss from de|)reci- 
ation of its s(>curities, or otherwise." Tlu*. (|U(>st ion statxMl in 
your letter is wheth(^r it is lei2;al for a savino;s bank to res(>rvo 
and hold a laro(>r lifuaranty fund than five p(>r cent. 

Savinos banks are established and carried on for the b(>n(>fit 
of dej)Osit()rs. 'Pho profits arisini:; from the deposits are to Ix^ 
divided friMpuMitly amono" the (depositors, i-eservino; only such 
an amount as is consistent with safety. The L(\oislatui"e in the 
section above (|uot(Ml intcMuled, in my opinion, to (lecIai-(> that a 
iruaranty fund of" live \)or coui. should be sutlicient to prot(>('t 
depositors from h)sses arising from dc[)reciation of securities or 



304 



OPINIONS OF THE ATTORNEY-GENERAL. 



otherwise. Whether in fact this is sufficient does not concern 
the inquiry. The management of savings ])auks has been care- 
fully provided for by the Legislature, and it is within its 
province to establish the limit of a guaranty fund. It may well 
have been considered by the Legislature to be not for the inter- 
ests of the depositors to permit the piling up of a large guaranty 
fund, and that to do so would be to defeat one of the principal 
objects of savings banks, which is to insure the division of the 
profits of the business among the depositors. 

This intention is very clearly expressed in the section above 
quoted, and I. am of opinion that savings banks have no right 
to maintain .aCid hold more than five per cent, of the total 
amount of their deposits under the provisions of that section. 

The other inquiry in your letter, as to what action, if any, 
it is requisite for the Board to take in case a larger guaranty is 
maintained and held by savings banks, is answered by the pro- 
visions of § 6 of the same chapter. Under that section I see 
no reason to doubt the power of your Board to require com- 
pliance with the provisions of the statutes by the savings 
banks. 



Corporation, — Buying and Selling Intoxicating Liquor. 



To the Com- 
missioner of 
Corporations. 

1896 
January 2. 



A corporation cannot be organized under tlie general laws for the purpose of 
buying and selling intoxicating liquor. 

A corporation organized under the general laws may not sell 
intoxicating liquor in this Commonwealth. 

Articles of association, therefore, which declare that the 
purpose for which the corporation is formed is the buying and 
selling of intoxicating liquor, are not within the scope of the 
statutes (Pub. Sts., c. lOG, § 14) which permit the forming of 
corporations ' ' for the purpose of carrjdng on any lawful busi- 
ness," etc.* 



* But see Enterprise Bretciyig Co. v. Grime, 173 Mass., 251. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 305 



Trustees of Lyman and Industrial Schools, — Jurisdiction to 
Discharge Inmate. 

The trustees of the Lyman and Industrial Schools have no authority to dis- 
charge a girl from the State Industrial School for Girls to the overseers 
of the poor. 

Your letter of Dec. 15, 1895, states that you have voted to To the 

, , , Trustees of the 

discharoe a o-irl from the custody of the State Industrial School Lyman and 

^ ® ° "^ _ Industrial 

for Girls to the overseers of the poor of a city. She was com- Schools. 
mitted to the school by the police court of Lowell for stubborn- January 4. 
ness. She is twenty years of age, and her mother is living. 
The inquiry in your letter is whether you have a legal right to 
discharge the girl to the overseers of the poor. 

Pub. Sts., c. 89, § 45, provides that "The trustees shall dis- 
charge and return to her parents, guardian or protector, any 
girl who, in their judgment, ought for any cause to be removed 
from the school." So far as I have been informed, this com- 
prises the whole power of discharge vested in the trustees. 
The overseers of the poor cannot be regarded as the protectors 
of a girl, under any definition of their duties contained in the 
statutes. I am of opinion, therefore, that your Board has no 
right to deliver a girl in the State Industrial School to the 
overseers of the poor of a city or town. 



Grade Crossings, — Expenditure for Abolition of, by Com- 
monwealth. 

By St. 1890, c. 428, § 10, not more than five hundred thousand dollars can be 
expended by the Commonwealth in any one year for the abolition of grade 
crossings. 

I have your letter of the 9th inst., asking my opinion as to To the 
St. 1890, c. 428, § 10, relating to the expenditure for gi'ado isge 
crossings. The section provides that " The amount to be paid '^' '""'""^ 
under the provisions of this act by the Commonwealth in any 
one year shall not exceed five hundred thousand dollars." Your 
inquiry is whether, if in any given year less than five hundred 



306 OPINIONS OF THE ATTOKNEY-GENERAL. 

thousand dollars is expended, the balance may be added to the 
expenditure for the next year ; so that if, for example, three 
hundred thousand dollars are expended in one year, seven 
hundred thousand dollars may be expended in the next year. 
It is perfectly plain that the intent of the Legislature was to 
limit the expenditure to five hundred thousand dollars in any 
given year, regardless of the amount expended in any preceding 
year. It is difficult to conceive how such intent could have 
been better expressed in any possible form of words. 



Building Laws, — Theatre. 

A room originally designed as a shop is altered into a hall containing seats for 
spectators and a stage with a drop curtain. The stage contains a table, 
mirror and other apparatus, designed for the purpose of producing illu- 
sions by means of reflection in the mirror, but is not to be used for plays 
or other like representations. 

Such a hall is not a theatre within the meaning of St. 1894, c. 382. 

chi^^ofthe ^^* 1894, c. 382, provides that in every building hereafter 

District Police, ^q |jg erectcd and " desimed to be used in whole or in part as 

1896 * ^ 

February 4. a theatre," and in every building to be altered " for the purpose 
of using the same as a theatre," there shall be exits of a specific 
width, with stairways from the second floor enclosed with fire- 
proof walls, and not connected with the basement or first floor 
of the building. It is further provided that your department 
shall enforce the provisions of the said law. 

Persons in Lynn are proposing to alter a room, originally 
designed for a shop, into a hall, which, when completed, shall 
contain seats for spectators, a stage with a drop curtain, and 
other appurtenances. The stage contains a table, a mirror, and 
other apparatus designed for the purpose of producing illusions 
by means of reflections in the mirror. There is said to be no pur- 
pose of using the stage for plays or other like representations. 

The question on which you desire my opinion is, whether 
this hall when the alterations are completed will l)e a theatre, 
within the meaning of the statute above referred to, and subject 
to the provisions thereof. 

The word "theatre " is defined, according to the dictionaries^ 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 307 

first, as a building appropriated to the representation of dra- 
matic spectacles, and, secondly, as a room or hall, with a 
platform at one end, and ranks of seats rising as they recede 
from the platform, adapted to lectures, academic exercises, 
anatomical demonstrations, etc. 

Undoubtedly the definition last given is more in accordance 
with the etymological meaning of the word. Its root is a 
Greek word, signifying a "view" or " sight ; " and it is prop- 
erly used to designate a place designed for exhibitions of what- 
ever character, provided with seats for spectators. 

But in construing statutes it is a safe rule to regard words 
in common use, which are used in statutes, as having their 
common and ordinary significations. It cannot be questioned 
that as the word ' ' theatre " is usually employed it means a 
play-house, that is to say, a building with seats for spectators, 
containing a stage provided with curtains, scenery and other 
furniture, and adapted to the giving of dramatic entertainments. 
It is not usually employed to designate buildings of any kind 
in which mere exhibitions are given. In the larger sense of 
the word many buildings used for educational, literary, and 
even religious purposes, might properly he called theatres ; 
but as the w^ord is used in common speech it means a play- 
house. I think it must l)e taken to have been used in that 
sense in the statute under consideration. 

This view is supported somewhat by the use of the word, 
and of the adjective " theatrical," in other statutes. Pub. Sts., 
c. 48, § 8, prohibits the employment of children under fifteen 
years of age " in any circus or theatrical exhibition, or in any 
pulilic place whatsoever." Section 9 prohibits the granting of 
a license " for a theatrical exhibition or puljlic show " in which 
children under fifteen years of age are employed. Pub. Sts., 
c. 102, § 115, provides that the mayor and aldermen, etc., may 
license "theatrical exhibitions, public shows, public amuse- 
ments, and exhibitions of every description, to which admission 
is obtained on payment of money." Pub. Sts., c. 104, § 20, 
provides that "All churches, school-rooms, hotels, halls, thea- 
tres, and other buildings used for public assemblies, shall have 
means of egress," etc. 



308 



OPINIONS OF THE ATTORNEY-GENERAL. 



The foregoing statutes clearly recognize the distinction be- 
tween circuses, exhibitions, concerts, public shows, etc., on the 
one hand, and theatrical exhibitions on the other. The essence 
of a theatre, not onl}^ as the word is used in common speech, 
but in the statutes as well, lies in the fact that it is used for 
dramatic purposes. 

It may be said that St. 1894, c. 382, was enacted for the 
protection of spectators from the dangers of fire, and that the 
provisions of the statute in question would apply with great 
propriety to all sorts of public exhibitions.' But the provi- 
sions of escape in case of fire prescribed by the statute require 
special methods of construction, which are expensive and not 
easily adapted to ordinary public halls. It is to he presumed 
that the Legislature, in view of the large expense which would 
be required to make buildings conform to the stringent require- 
ments of the statute, considered that it would be inexpedient 
to make its provisions obligatory except upon public play- 
houses. 



County Accounts, — Registers of Deeds, — Compensation, 
Classified Indexes of Records. 



To the 
Controller of 
County 
Accounts. 

1896 
February 5. 



County commissioners have authority to employ registers of deeds to make 
the classified indexes required by Pub. Sts., c. 24, § 25, and to pay them 
for such services in addition to their fixed salaries. 

Under Pub. Sts., c. 24, registers of deeds were paid by fees, 
and employed their own assistants and clerks. 

Following the tendency of legislation in tliis Commonwealth, 
the fee system established by the Public Statutes was abolished 
by St. 1895, c. 493. Under the provisions of that statute, 
registers are now paid by fixed salaries. They are authorized 
to employ clerical assistance, with the approval of the county 
treasurer, and arc required to account to the county for all fees 
received by them. 

Pub. Sts., c. 24, § 25, provides for the making of classified 
indexes to the records. The county commissioners from time 
to time may ' ' cause to be made at the expense of their several 
counties, l)y competent persons employed by them, copies of 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 309 

indexes to the instruments recorded in the registries of deeds 
during the preceding year, in which copies the grantors and 
grantees shall respectively be assorted," etc. These classified 
indexes are in addition to the indexes required to be kept by 
registers of deeds as a part of their regular duties. 

Under § 25 the county commissioners have frequently, and, 
perhaps, usually, employed registers of deeds and paid them 
therefor. This employment had no relation to the regular 
duties of registers, and the compensation was not paid out of 
the fees received -by them. 

The question contained in your letter of the 29th ultimo is, 
whether county commissioners may still continue to employ 
registers to make such classified indexes, and to pay them 
therefor in addition to the salaries fixed by St. 1895, c. 493. 
I see no reason why registers may not be so employed, and be 
paid therefor in addition to the salaries established for their 
regular duties. St. 1895, c. 493, did not enlarge the duties 
of registers. It merely provided that they should be paid by 
fixed salaries, instead of l)y fees. It did not include the mak- 
ing of classified indexes a^ a part of their regular work, and, 
if the county commissioners see fit to employ them in such 
work, they have the same right as before to pay them therefor. 
There is no provision in St. 1895, c. 493, that their duties as 
registers shall be exclusive. 



Jurisdiction of Trial Justices. 
A trial justice may sentence to a jail or house of correction in any county. 

I have your letter of the 4th, asking: my opinion as to To the cierk 

"^ ., 1 P of the Third 

whether trial justices may sentence to a lail or house of correc- District oourt 

^ '^ _ "^ ^ _ ^ of Bristol 

tion in any county. You have no right to the opinion of this county. 
office, but, in view of the fact that the question is of importance February is. 
throughout the Commonwealth, I have examined the matter, 
and beg to reply as follows : — 

The first statute authorizing sentence out of the county was 
St. 1866, c. 280; which in § 2 provided that "the supreme 
judicial court or superior court, holden in any county," etc., 



310 OPINIONS OF THE ATTORNF.Y-GENERAL. 

might commit a person to a house of correction in any county 
in the Commonwealth. This was superseded by St. 1870, 
c. 370; which in § 4 provided that "the supreme judicial 
court, the superior court or any municipal or police court" 
might sentence ' ' to any jail or house of correction of any 
county in the Commonwealth." This statute was re-enacted 
by Pub. Sts., c. 215, § 13, the language of which is : "A court 
may sentence any person, convicted before it of an ofience 
punishable by imprisonment in a jail or house of correction, to a 
jail or house of correction of any county." This statute is still 
in force. 

I am of the opinion that the word ' ' court " in the section 
last quoted must be taken to be any tribunal having authority 
to impose a sentence under the laws of Massachusetts. It is 
true that the section in St. 1870, c. 370, of wliich this was a 
revision, limited the power of sentence out of the local county 
to the higher courts and to municipal and police courts. That 
itself, however, was an enlargement of the jurisdiction given by 
the prior statute to sentence out of the county, and I see no 
difficulty in holding that the Legislature intended by the Public 
Statutes still further to enlarge such jurisdiction. In many 
places in Pub. Sts., c. 215, the word " court" is used in such 
a way as to include by necessary implication trial justices. 
For example, in § 8 it provides that "When an offence is 
punishable by fine and imprisonment in the jail, or hy fine and 
imprisonment in the house of correction, the offender may, at 
the discretion of the court, be sentenced to be punished by such 
imprisonment without the fine," etc., "in all cases where he 
shows to the satisfaction of the court that he has not before 
been convicted," etc. This section clearly applies to trial 
justices. Other sections might be cited to the same effect. 

The proceedings of a trial justice are in the Public Statutes 
designated as a court. Pub. Sts., c. 155, § 12, provides that 
" Trial justices may severally hold courts," etc. Section 71 
provides that "They may adjourn their courts in all cases, 
civil or criminal." 

It is held in Carter v. Burl, 12 Allen, 424, that the statute 
authorizing sentence to be imposed in any house of correction, 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 311 

instead of in the house of correction in the county in which the 
offence is committed, does not work an increase or aggravation 
of sentence. "In legal contemplation, a commitment to a 
house of correction in one county for a specific term cannot be 
regarded as a higher or lesser punishment than a commitment 
to a house of correction in another county for the same period 
of time." It follows, therefore, that there is no objection in 
principle to giving trial justices the same discretion as to the 
house of correction in which sentence is imposed as police and 
municipal courts. I think it must be held that the Legislature 
so intended. 



Lobby Act, — Legislative Counsel. 

A person other than a lawyer may register as legislative counsel under St. 

1890, c. 456. 

Your letter of January 28 asks my opinion upon the ques- To the 
tion whether any person not a lawyer may legally register as Arms, 
legislative counsel. Febnl^ryis. 

St. 1890, c. 456, entitled "An Act to regulate the employ- 
ment of legislative counsel and agents," etc., provides in § 1 
for two classifications of employment, the one of legislative 
counsel, the other of legislative agents. The functions of leg- 
islative counsel are clearly defined by the act. Section 2 pro- 
vides that " In the docket of legislative counsel shall be entered 
the names of counsel employed to appear at a public hearing 
before a committee of the general court for the purpose of mak- 
ing an argument or examining witnesses." Section 3 further 
provides that " No person whose name is entered on the docket 
of legislative counsel shall render any service as legislative coun- 
sel or agent otherwise than by appearing before a committee, 
as aforesaid, and by doing work properly incident thereto." 

The functions of legislative agents are not defined, excepting 
so far as they may be inferred from the language of § 2, as 
amended by St. 1891, c. 223, § 2, providing that "in the 
docket of legislative agents shall l)e entered the names of all 
agents employed in connection with any legislation, and of all 
persons employed for other purposes who render any services 



312 0PINI0N8 OF THE ATTORNEY-GENERAL. 

as such agents." The history of the act, however, leaves no 
room for doulit that ])y the term ' ' legishitivc agents " the Legis- 
lature intended to designate persons commonly called lobbyists. 

These two functions are entirely distinct. The counsel ap- 
pears before the committee, conducts the hearing and presents 
the cause of his employers. The agent, l)y other methods, 
aids in the passage, or in preventing the passage, of legislation 
that may affect the interests of those whom he serves. 

The purpose of the act was to designate and identify those 
who are employed respectively as counsel and as lobbyists. A 
lobbyist may not act as counsel without entering his name in 
the docket of legislative counsel. Counsel, on the other hand, 
are expressly forbidden from acting as lobbyists, except upon 
proper registration as such. 

There is nothing in the act which prevents a person not an 
attorney-at-law from being em[)loyed as counsel. By the entry 
of his name in the docket of legislative counsel a layman is 
entitled to appear for his employers before committees of the 
general court, to examine witnesses and to argue the cause ; 
but under the provisions of the statute in question he must 
first register as such counsel. If the Legislature had intended 
to prohibit the employment of persons other than attorneys-at- 
law, it would undoubtedly have been so expressed in the act. 



To the InBur- 
ance Commis- 
eloner. 

1896 
February 15. 



Insurance, — Assessment Companies, — Contract, — Minors. 

Assessment insurance companies organized under St. 1890, c. 421, have legal 
auttiority to issue policies of insurance to minors. 

I have your letter of the 29th ultimo, requesting my opinion 
upon the question whether, under the provisions of St. 1890, 
c. 421, assessment insurance corporations organized under that 
statute may issue policies of insurance to minors. 

There is no prohibition at common law against the making 
of contracts by or with minors. Such contracts are lawful, 
and are voidable only by the act of the minor himself, or his 
duly constituted guardian. If the contract is for necessaries, 
or is manifestly for the advantage and benefit of the minor, and 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 31: 

has been performed by the other party, it is usually not even 
voidable by the minor himself. 

Unless, therefore, there is something in the statutes prohibit- 
ing the making of a contract of insurance with a minor, it is a 
lawful contract, and one which may be enforced against the 
company. Whether it may be enforced against him depends 
upon the question whether it is for his advantage. This, how- 
ever, is not a question which affects the validity of the contract, 
so far as the corporation is concerned ; and if an insurance 
company sees fit to assume the risk of having the contract 
avoided by the minor, it may do so. 

There is nothing in the statute in relation to assessment in- 
surance which in terms forbids the making of contracts of insur- 
ance with minors. There is a prohibition against issuing a 
policy to a person more than sixty years of age, but no limit in 
the other direction. I am of the opinion, therefore, that a con- 
tract of insurance made by an assessment insurance company 
with a minor is not unlawful. 

My attention has been called to the opinion of the court of 
appeals of the State of New York, in the case of the Globe 
Mutual Benefit Asm., 135 N. Y., 280, in which it was held 
that co-operative or assessment life insurance companies, or- 
ganized under the provisions of the statutes of New York, may 
not receive minors as members. That case turns upon the con- 
struction given to the New York statutes, which in many re- 
spects differ from those of Massachusetts. I infer from reading 
the opinion that under the laws of New York whoever is insured 
in a co-operative or assessment company becomes a member of 
the association, and as such a member is entitled to all the 
rights and jjr.vileges of a member of the association. The court 
also refer to other provisions of the statutes as showing the im- 
practicability of permitting minors to become members of such 
associations, and conclude with these words: "We place our 
assent to the judgment below on the ground that it appears 
from a consideration of the statute of 1883, and the nature and 
object of co-operative insurance companies, and the relation 
which members hold to the corporation, that adult persons only 
were contemplated as entitled to membership. The law fixes 



314 OPINIONS OF THE ATTORNF^Y-GENERAL. 

an arbitrary period when persons become clothed with general 
legal capacity, and while in many cases youths under twenty- 
one are capable of exercising an intelligent judgment and might 
properly be admitted to the advantage of membership in a com- 
pany like that of the defendant, in many others they would be 
wholly unfitted to act as members of such an organization." 

Without questioning the soundness of this opinion, it is yet 
obvious that the grounds upon which it is put do not apply to 
assessment companies organized under the laws of Massachu- 
setts. These companies are not mutual in the sense in which 
that word is usually employed. St. 1890, c. 421, §§ 2-8, 
provide for the forming of corporations of this class. Seven 
or more persons may form such a corporation, and these per- 
sons may or may not be insurers ; and there is no provision 
that persons with whom contracts of insurance are made thereby 
necessarily become members. It is true the word "member- 
ship" is used in § 10 as relating to policy holders. It pro- 
vides that a policy shall specify the sum of money which it 
promises to pay upon the contingency insured against, ' ' which 
shall not be larger than the amount of one assessment upon the 
entire membership." Taking the Avhole statute together, how- 
ever, it is obvious that this word is used to designate the whole 
number of persons holding contracts, and not as indicating 
their relation to the corporation. 

There is also a provision in § 12 that a corporation shall not 
transfer its risks unless the contract of transfer is first sub- 
mitted to and approved by a two-thirds vote of a meeting of 
the insured called to consider the same. Although, if contracts 
with minors are permitted, this section may contemplate the 
exercise of the right of voting by minors, I do not think it is 
sufficient of itself to render the making of contracts with minors 
unlawful. There is no necessary difiiculty in minors exercising 
the rights given them under § 12. 

I can discover no reason which would prohibit the issuing of 
contracts of insurance by these companies to minors which 
would not apply equally well to mutual life insurance compa- 
nies, the making of contracts l)y which with minors has uni- 
versally been recognized as lawful. 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 315 



Insurance, — Fire Company, — Single Hazard. 

St. 1894, c. 522, § 20, provides that no insurance company shall insure in 
a single hazard a larger sum than one- tenth of its assets. The word 
'"hazard" as here used signifies the chance of loss to which the insur- 
ance company subjects itself; and a single hazard means a single chance 
of loss, whether the company be called upon to pay upon one policy or 
upon more than one. 

St. 1894, c. 522, § 20, provides that "No fire insurance Totheinsur. 

• .11 11 ance Commis- 

company shall insure in a single hazard a larger sum than one- sioner. 
tenth of its net assets." The question stated in your letter of February i9. 
January 17 is as to the meaning of the word " hazard" in that 
section. Is the expression "single hazard" to be taken to 
signify a single chance of loss, whether on one policy or more 
than one, upon the occurrence of which the insurance company 
may be called upon to indemnify the parties insured ; or does 
it merely mean a single contract of insurance ? 

A hazard is a chance. Applied to insurance, it is a chance 
of loss, the incurring of the possibility of loss for the possi- 
bility of gain. It is not the contract under which the liability 
is incurred, but the liability itself. This is the usual meaning 
of the wT)rd, and I see no reason to doubt that this is its mean- 
ing in the section above quoted. 

The plain purpose of the statute was to prevent insurance 
companies from staking an undue amount upon a single lia- 
bility. This purpose would be defeated if it were intended to 
permit the issuing of separate policies, together aggregating a 
larger amount than the limit fixed by the statute, all payable 
upon the occurrence of the same loss. For example, if ten 
ditferent part owners of a vessel could each insure in the same 
company his interest in the vessel to an amount equal to one- 
tenth of the net assets of the insurance company, the result 
would be that the entire net assets would be staked upon the 
loss of the vessel. 

If the Legislature had intended to limit not the liability to 
loss l)ut the amount of insurance in any given policy, the words 
"contract" or "policy" would undoubtedly have been used 
instead of the word "hazard." Whenever the policy itself 



316 OPINIONS OF THE ATTORNF.Y-GENERAL. 

is referred to in the insurance statutes those words are em- 
ployed. 

The question has not been discussed in Massachusetts, but in 
the case of German Am. Ins. Co. v. Commercial Fire Lis. 
Co., 95 Ala. 469, a similar construction was given to a con- 
tract which limited the liability of an insurance company to a 
certain sum "in any one building or risk." 

I am of the opinion, therefore, that the word hazard as here 
used signifies the chance of loss to which the insurance com- 
pany subjects itself; and a single hazard means a single chance 
of loss, whether the company be called upon to pay on one 
policy or more than one. 

The remaining questions in your letter are specific rather 
than general. I understand, however, that they are put by 
way of illustration, and not because such cases have arisen. 
In applying the statute it may l)e difficult to lay down in ad- 
vance any definite rule. It is better to deal with each case as 
it arises. It is not difficult, for example, to hold that all the 
cargo in one vessel, or all the goods in one warehouse, though 
held under separate ownerships, constitute, in insurance, one 
hazard. On the other hand, two buildings, though near each 
other, — so near, in fact, that the burning of one endangers the 
other, — are separate hazards. Whether two parts of the same 
building, separated by fire-proof partitions or otherwise, con- 
stitute a single hazard, is a question which may depend upon 
an examination of the circumstances of the case.* 

* As to reinsuring for the purpose of reducing the hazard, see p. 25, ante. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 317 



State Highway, — Street Railway, — Location, — Jurisdiction 
OF Local Boards. 

The jurisdiction and authority to grant a franchise or location for a street 
railway is vested as to towns in the board of selectmen and as to cities 
in the board of aldermen, and the establishment of State highways has 
not taken away this authority. The only modification thereof as regards 
State highways is in St. 1893, c. 476, § 14, which provides that a State 
highway shall not be dug up for laying railways except by written con- 
sent of the superintendent of streets or road commissioners, approved 
by the Highway Commission, and then only in accordance with the rules 
and regulations of said commission. 

The question submitted by your Board for my consideration To the 

Highway 

is as follows : "When a road is laid out as a State road, who commisBion. 
has the granting of franchises for street railways, the commis- February 28. 
sion or the town ? " 

The question suggests that towns have the right of granting 
franchises or locations for street railways in other than State 
highways. This is a misapprehension. Neither towns nor 
cities have any voice in reference to the location of street rail- 
ways upon the ways within their limits. That jurisdiction is 
vested as to towns in the board of selectmen, and as to cities 
in the board of aldermen. See Pub. Sts., c. 113, §§ 7, 21-2G 
inclusive. These boards act not as agents of the town, but as 
public officers. Their duties are to determine what public con- 
venience and necessity require with reference to the use of 
ways by street railway companies where such ways are laid out 
by towns or by counties. The municipality in which this way 
is situated has no authority in the matter. The selectmen can- 
not be compelled to grant a location, even if the town so votes ; 
and a vote of the town instructing the selectmen to refuse the 
location is not binding upon that body. 

The estal)lishment of State highways has not taken away this 
jurisdiction of the selectmen. The only modification is in 
St. 1893, c. 476, § 14, which provides that a State highway 
shall not be dug up for laying railways, etc., "except by 
the written consent of the superintendent of streets or road 
commissioners of a city or town, approved by the Highway 
Commission, and then only in accordance with the rules and 



318 OPINIONS OF THE ATTORNEY-GENERAL. 

regulations of said commission." The jurisdiction as to the 
question whether pul)lic convenience and necessity require the 
use of the streets for street railway purposes is still vested in 
the selectmen of towns and the board of aldermen of cities, 
whether such ways are laid out and maintained by towns, by 
counties or by the Commonwealth. 



To the 
Secretary. 

1896 

February 29. 



Justice of the Peace, — Althority to issue "Warrants in 
Criminal Cases, — Constitutional Law. 

A justice of the peace authorized to exercise special powers under St. 1884, 
c. 286, is still within the exception of c. VI., art. II. of the Constitution, 
which declares that the office of justice of the peace shall not be reckoned 
as one of the two offices moi'e than which one person may not hold. 

I have your letter of the 25th inst., asking my opinion as to 
whether St. 1884, c. 286, creates an office within the meaning 
of c. VI., art. II. of the Constitution. 

St. 1884, c. 286, provides that " The Governor, with the ad- 
vice and consent of the Council, may from time to time upon 
the petition of, etc., designate and commission some justice of 
the peace residing, etc., who may issue warrants ... in crim- 
inal cases . . . and take bail therein." 

Chapter VI., art. II. of the Constitution, provides that 
"never more than any two offices, which are to be held by ap- 
pointment of the Governor, or the Governor and Council . . . 
military offices, and the offices of justices of the peace excepted, 
shall be held by one person." 

I understand your question to be whether a person commis- 
sioned to receive complaints, issue warrants and take bail, 
under St. 1884, c. 286, holds another office than that of justice 
of the peace so as to debar him from holding more than one 
other office in addition thereto ; or whether he is to be re- 
garded as still within the exception of the Constitution, which 
declares that the office of justice of the peace shall not be reck- 
oned as one of the two offices more than which the same person 
may not hold. 

The office of justice of the peace is of ancient origin. From 
the earliest times, until changed by recent legislation, it was one 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 319 

of the functions of justices of the peace to receive complaints 
and issue warrants for the apprehension of persons charged 
with crime.- Tliat power was taken away by St. 1877, c. 211, 
and conferred upon certain other officers, to wit, trial justices 
and clerks of courts. It was found, however, to be inconven- 
ient to require the inhabitants of a town in which neither a trial 
justice nor a clerk resided to go in search of such an officer in 
order to make complaint. To remedy this difficulty, St. 1879, 
c. 254, of which St. 1884, c. 286, is an amendment, was en- 
acted, and the right to receive complaints and issue warrants 
was restored to such justices of the peace as might be desig- 
nated and appointed therefor by the Governor. 

Such being the history of this legislation, I think that neither 
St. 1884, c. 286, nor the acts of which it is an amendment, are 
to be reo:arded as creatino; a new office within the meanino- of 
the Constitution. Persons holding commissions under this 
statute are still justices of the peace, but with more ample 
powers than those not so commissioned. It is true the incum- 
bent is in receipt of two commissions from the Governor, but 
those commissions cannot be regarded, in my judgment, as in- 
vesting him with two offices. It is more reasonable to hold 
that he is, notwithstanding his two commissions, still a justice 
of the peace, but with special powers. 



School Law, — Academy, — Tuition of Children, — Payment 
BY Town, — Constitutional Law. 

An act providing that any town in which a high school is not maintained may 
grant and vote money to pay the tuition of children residing in said town 
and attending an academy situated in the town, but not under the control 
of the town authorities, is unconstitutional. 

For the same reason it is unconstitutional for a town to grant and vote money 
to pay the tuition of children attending such an academy outside of the 
said town. 

I have the honor to acknowledge the receipt of a copy of an To the 

,_,, ^ n • 1 •• ft President of the 

order adopted February 18, requesting the " opinion ot the seuate. 
Attorney-General upon the following important questions of March is. 
law : — 



320 OPINIONS OF THE ATTORNEY-GENERAL. 

"1. Is it constitutionul for a town to grant and vote money 
to pay the tuition of children attending an academy in said town 
in accordance with St. 1895, c. 94? 

"2. Is it constitutional for a town to grant and vote money 
to pay the tuition of children attending an academy outside of 
said town ? " 

1. Section 1 of the act referred to in the first question (St. 
1895, c. 94) is as follows : " Any town in which a high school 
is not maintained, Ijut in which an academy of equal or higher 
grade is maintained may grant and vote money to pay the 
tuition of children residing in such town and attending such 
academy : jyrovided, such academy is approved for that purpose 
by the state board of education." 

So far as this act is in the exercise of the general power 
conferred by the legislative department to raise money by 
taxation for pul)lic purposes, there is no reason to doubt that 
it is within the authority of the Legislature. The education of 
the young has been from the earliest times regarded as one of 
the highest and most useful public purposes for which taxes 
may be levied. But the method by wiiich money raised and 
appropriated for educational purposes may be expended was 
regulated and limited by art. XVIII. of the Amendments to 
the Constitution, which 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 moneys shall never be appropriated to any religious sect 
for the maintenance, exclusively, of its own school." 

I am of opinion that the statute in question purports to au- 
thorize the expenditure of money raised by taxation in a man- 
ner prohiljited by this article, and is therefore unconstitutional. 
I assume that by the word "academy" is meant a school, 
incorporated or otherwise, which is not under the control of 
the municipal authorities. If the control is vested in the town 
to such an extent that it is " conducted according to law, under 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 

the order and superintendence of the authorities of the town," 
then it becomes a public school, and tuition may not be collected 
from the children of the town in whose control it is vested ; but 
if the control of the school is not vested in the authorities of 
the town, it is a private school, against which the prohibition 
of the constitutional amendment was plainly directed. 

Pub. Sts., c. 44, § 2, provides that " Every town may, and 
every town containing five hundred families or householders, 
according to the last public census taken by the authority either 
of the Commonwealth or of the United States, shall, besides 
the schools prescribed in the preceding section, maintain a high 
school," etc. It has been held by the Supreme Judicial Court 
(^Jenkins v. Andover, 103 Mass. 94, 97, 98) that high schools 
are a part of the system of public schools which the towns of 
the State may be required to provide for and maintain. The 
Legislature, however, has seen fit not to require of certain 
small towns the duty of maintaining high schools. The ob- 
vious purpose of St. 1895, c. 94, is to provide a means of 
high-school education for the children of such towns. This 
purpose is accomplished by authorizing the payment of money 
raised by taxation for the high-school education of the children 
in any such town in a private educational institution of equal 
or higher grade, which is approved by the State Board of 
Education. 

The academy so approved, therefore, becomes in such a town 
a part of the system of education of the children of the town. 
It takes the place of the high school. For all practical pur- 
poses it is the high school of the town, supported, so far as 
the pupils of the town are concerned, by money raised by tax- 
ation. But it is still a school which is not " under the order 
and superintendence of the authorities of the town or city in 
which the money is to be expended." 

It is of no consequence that the tuition of such pupils may 
not be paid from money especially appropriated hj the town 
for the support of its public schools. The question is not one 
of mere appropriation. The purpose of the constitutional 
amendment was to prohibit the use of public funds for the 
education of the children of the Commonwealth in any institu- 



322 OPINIONS OF THE ATTORNEY-GENERAL. 

tion, however conducted, and whether sectarian or not, the 
control of Avhich is not in the municipal authorities. If the 
expenditure be for the purpose of the education of the children 
of the town, it is within the spirit of the prohibition of the 
amendment. Jenkins v. Andover, 103 Mass. 94. 

Undou])tedly the statute in question may be in some cases of 
great benefit to the children of small towns, and, incidentally, 
to the tax payers of the towns, who are thus relieved from the 
disproportionate expense of maintaining a high school estab- 
lished for the benefit of a few pupils. The question, however, 
is not to be determined by considerations of mere convenience 
in special cases. If this statute is allowed to stand, the policy 
of paying the tuition of school children may be further extended, 
and it might even be possible to provide for the education of 
all the children of a town in sectarian schools and at the public 
expense ; a proposition which the people of the Commonwealth 
would be slow, I apprehend, to accept, and against which, in- 
deed, the amendment in question may be said to have been 
principally directed. 

2. For the reasons already stated, I am of opinion that it 
would be unconstitutional for a town to gi*ant and vote money 
to pay the tuition of children attending an academy outside of 
said town. 

Insane Persons, — Physicians' Certificates, — Insane Criminals, 
— Transfer, — Board of Lunacy and Charity. 

A single certificate signed by two physicians may be issued under the pro- 
visions of St. 1895, c. 286, when the facts recited by both physicians are 
the same ; otherwise, when such facts are not the same. 

It is within tlie discretionary power of the State Board of Lunacy and 
Charity to transfer from the lunatic hospitals to the asylum for insane 
criminals committed under the provisions of Pub. Sts., c. 214, §§ 16 
and 19. 



Inspector of ^ havc your letter of the 16th, asking my opinion upon two 

^"^slr^"' questions. 

March 28. Fivst. — Uudcr St. 1895, c. 286, is it lawful to issue one 

certificate signed by two physicians in the commitment of an 
insane person ; or does the law require a separate certificate to 
be signed by each physician ? 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 323 

Pub. Sts. c. 87, § 13, of which St. 1895, c. 286, is an amend- 
ment, clearly provides for a single certificate to be signed by 
two physicians. This chapter was amended by St. 1892, c. 
229, so as to require the oath of the subscribing physicians to 
certain facts of qualification ; but the provision as to a single 
certificate to be signed by both physicians remains unchanged. 
The purpose of St. 1895, c. 286, is to require the incorporation 
of certain other statements in the certificate, and to provide for 
certain additional qualifications on the part of the certifying 
physician. The form of the certificate recited in the chapter 
apparently looks to a separate certificate by each of the two 
physicians; but by c. 429 of the same year (1895), which 
dealt with the same subject, it is provided that in the commit- 
ment of an insane person there must be filed with the judge 
' ' the certificate of two physicians certifying to such person's 
insanity, made in accordance with the provisions of section one 
of chapter two hundred and eighty-six of the acts of the present 
year." 

Taking this statute in connection with c. 286, it seems to 
have been the intention of the Legislature not to require sep- 
arate certificates, when the facts upon which the opinion given 
in the certificate is based are the same as to both physicians. 
A joint certificate of course cannot be issued where the facts 
recited by the two physicians are not the same. 

Second. — Under St, 1895, c. 390, has the Board authority 
*' to transfer from the lunatic hospitals to the asylum for insane 
criminals criminal insane other than those committed from jails, 
state prisons, houses of correction, etc." 

I assume that your question relates to persons committed 
under the provisions of Pub. Sts., c. 214, §§ 16 and 19. Sec- 
tion 16 provides that a person under indictment, who is found 
by the court to be insane, may by order of the court be removed 
to one of the State lunatic hospitals for such a term, and under 
such limitations, as it may direct. Section 19 provides that 
when a person is acquitted by the jury by reason of insanity, the 
jury shall state that fact to the court, and thereupon the court, 
if satisfied that he is insane, may order him to l)e committed to 
a State lunatic hospital, etc. St. 1895, c. 390, establishing an 



324 OPINIONS OF THE ATTORNEY-GENERAL. 

asylum for insane criminals at Bridgewater, provides in § 5 that 
the State Board may transfer to and from the State lunatic 
hospital, and the asylum for insane criminals, "any of the 
description of persons mentioned in this act." Section 4 of 
the same act provides expressly that insane male persons men- 
tioned in Pul). Sts., c. 214, §§16 and 19, maybe committed 
to the asylum for insane criminals. 

I am of opinion, therefore, that the intention of c. 390 is to 
confer upon your Board authority to transfer persons com- 
mitted under the provisions of Pub. Sts., c. 214, §§16 and 19, 
to and from the Bridgewater asylum, whenever, in its judgment, 
it shall be deemed proper to do so. 



Parole Law, — Convict, — Consolidation of Sentences. 

A convict was committed to the State Prison upon a sentence of ten years. 
Later in the same year he was sentenced for another offence to a term of 
five years, to take effect from and after the expiration of the sentence he 
was then serving. The two sentences cannot be added togetlier and con- 
strued as one sentence, for the purpose of bringing the case within the 
terms of St. 1895, c. 252. 

To the J liave your letter of March 6, asking my opinion upon the 

comraiBBionerB. fg^^^g therein stated, as follows, to wit : a convict was committed 

1896 ' 

April 4. ' to State Prison February 10, 1890, upon a sentence of ten 
years ; June 30, 1890, he was sentenced for another offence to 
a term of five years in the State Prison, "to take efiect from 
and after the expiration of the sentence he was then serving." 

The question stated in your letter is, whether the two sen- 
tences may be added together and construed as one sentence, 
for the purpose of bringing the case within the terms of St. 
1895, c. 252. 

The statute referred to provides that when it appears to the 
commissioners that a person ' ' held in the State Prison upon 
his first sentence thereto has reformed, they may issue to him a 
permit to be at liberty during the remainder of his term of sen- 
tence upon such terms and conditions as they deem best." 

It is obvious that the statute is inapplicable to the first sen- 
tence, taken by itself. It cannot l)e presumed that the Legis- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 325 

lature intended that a prisoner should be at large, engaged in 
the Inisiness of reformation, for a period of years, at the ex- 
piration of which he should return to enter upon a second sen- 
tence. 

The only possible way, therefore, in which the statute can be 
made to apply, is in the manner suggested in your question, to 
wit, by regarding the two sentences as one sentence of fifteen 
years. I think that such a consolidation of sentences cannot 
be inferred. Such a thing could only be done by direct legis- 
lation, and the omission of any provision looking to any such 
consolidation is to my mind conclusive against such an assump- 
tion. I am, therefore, of opinion that the two sentences can- 
not be regarded as one. 

The matter of successive sentences seems not to have been 
considered in this law, nor in another statute of the same year 
(St. 1895, c. 504), relating to indeterminate sentences. There 
seems to be need of further legislation upon the subject. 



Public Records, — Town Documents, — Warrants for holding 
Town Meetings. 

St. 1894, c. 356, requiring the preservation of certain town documents for 
several years only, does not apply to warrants for the holding of town 
meetings. Such warrants should be permanently preserved. 

Your letter of April 5 requests my opinion upon the ques- To the 

^ -^ ./J. J. J- ^ CommisBioner 

tion whether, under St. 1894, c. 356, town clerks are required ^^^^'^^l^ 
to preserve warrants for town meetings longer than seven isoe 

Apiil 15. 

years. 

Section 1 provides that certain documents shall not be de- 
stroyed ; to wit, (1) books of record or registry; (2) original 
papers dated earlier than the year 1800; (3) deeds; and (4) 
reports of "any agent, officer or committee of any county, 
city or town relating to bridges, liighways, streets, town ways, 
sewers or other county or municipal interests or matters." It 
is obvious that town warrants are not included within the pro- 
visions of this section. Section 2 proM])its the destruction of 
any other paper belonging to the files of the town until after 



326 OPINIONS OF THE ATTORNEY-GENERAL. 

seven years. In answering your question literally, therefore, 
it is })Inin that, under the provisions of this statute, town 
warrants need not be kept longer than seven years. 

But I do not regard this statute as intended to be comprehen- 
sive of all the duties of town officers relating to the preservation 
of documents. It prohibits the destruction of certain documents 
within seven years, but is not intended to require or permit 
such destruction, even at the end of seven years, if, for any 
reason, they should be preserved. 

The warrant for the town meeting, and the return of service 
of it, are essential to give validity to the proceedings of town 
meetings. If there is no warrant, or it is improperly or insuffi- 
ciently served, the title of the officers chosen at the meeting 
may be directly, and, in some cases, perhaps, collaterally, im- 
peached. Most proceedings become of little importance after 
the expiration of the year, but some may be questioned even 
after the expiration of seven years, as, for example, town liy- 
laws, or long-time loans. In such cases, the warrant and its 
service may at any time become of vital importance. It is 
evident, therefore, that the statute requiring preservation of 
town documents for seven years has no application to town 
meeting warrants, and that they should be permanently pre- 
served. 

It may be saia that the recording of the warrant, and of the 
return of service upon it, sufficiently preserves the evidence 
essential to show the validity of the meeting. There is no 
statute, however, requiring the clerk to record the warrant; 
and, although the record when made has been accepted by the 
courts as evidence of the contents of the warrant and the 
manner of its service (^OommonwealtJi v. Sullivan, 165 Mass. 
183) , it is not entirely certain that, if the question were directly 
raised, the record of the clerk would be competent evidence of 
the contents of the warrant, or of the service of it. 

It is undoubtedly the safer course for town clerks to follow 
the practice of private corporations, in recording the call for 
the meeting with the proceedings of the meeting itself; but the 
warrant itself is, nevertheless, the best evidence, and should be 
preserved. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 327 



Eminent Domain, — Private Cemetery Corporation, — Constitu- 
tional Law. 

A bill conferring authority upon a cemetery association to take land by right 
of eminent domain, said association being subject to Pub. Sts., c. 82, § 3, 
is unconstitutional. 

At the request of the committee on rules, I have examined To the speaker 

1 ' of the House of 

the bill entitled " An Act to enable the Central Cemetery As- Repj-esentativei. 
sociation of Randolph to take and hold additional real estate."* Apniso. 

This is a bill authorizing the selectmen of the town of Ran- 
dolph, upon the request of the directors of the Central Cem- 
etery Association, to take a tract of land by right of eminent 
domain, to be used by the cemetery association as a part of its 
burial ground. I understand the question upon which you 
request my opinion is as to the constitutionality of the bill. 

The Central Cemetery Association was incorporated by St. 
1878, c. 96, which provides that the corporation shall "have 
all the powers and be subject to all the duties, restrictions and 
liabilities set forth in all general laws which now are ... in 
force applicable to similar corporations." Pub. Sts., c. 82, 
relates to cemetery corporations. It provides that ten or more 
persons who are desirous of establishing a cemetery, or the 
majority of the proprietors of an existing cemetery, may organ- 
ize as a corporation. Section 2 provides that every such cor- 
pora'tion may take and hold real and personal estate, such as 
may be necessary for the objects of the corporation, "may lay 
out such real estate into lots ; and upon such terms, conditions, 
and regulations as it shall prescribe, may grant and convey the 
exclusive right of burial in and of erecting tombs or cenotaphs 
upon any lot, and of ornamenting the same." Section 3 pro- 
vides that such lots shall be held indivisible, and upon the 
decease of a proprietor his heirs or devisees shall succeed to 
his privileges. 

It follows, therefore, that, if the Central Cemetery Associa- 
tion is permitted to take land for the purposes of a cemetery, 
the land so taken will be its property, within its exclusive con- 

* Enacted as St. 1896, c. 524. 



328 OPINIONS OF THE ATTORNEY-GENERAL. 

trol, and which it may hokl or grant to such individuals as it 
pleases for their own exclusive use, and under such restrictions 
as it may impose. There is no public right of burial in its 
cemetery. 

I understand that it is claimed that this association has 
adopted a policy under which all persons, without discrimina- 
tion, have the right to purchase burial lots. But the question 
of public use cannot thus be determined. The rights of the 
public cannot depend upon the liberality of individuals or of 
corporations. However generous the policy may be, it still 
remains a use by the public as matter of grace and not of right. 
If, under its charter and the laws applicable thereto, it may, if 
it sees fit, discriminate, there is no right of public use. 

The right of eminent domain can be exercised only for the 
benefit of the public. The Declaration of Rights, art. X., 
expressly limits the right of taking the property of private 
citizens to cases where it is appropriated "to public uses." 
For example, it has been held that under the authority of the 
Legislature land may be taken for a railroad, a sewer, a school- 
house, a highway, a post-office, a park or for water works, or 
the abatement of a nuisance. In each class of cases enumer- 
ated, and in all others in which the right of eminent domain 
has been upheld, the taking is for a use in which all citizens 
have the right, under reasonable conditions, to share, and the 
benefits of which they may enjoy. This is the condition of the 
right of taking the land of a private citizen. This test has 
always been applied when the attempt has been made to invade 
the rights of private property. 

Pub. Sts., c. 82, §§ 10-14, provide that "when there is a 
necessity for a new burial-ground in a town, or for the enlarge- 
ment of a burial-ground already existing in and belonging to a 
town," the land of a private citizen may be taken therefor. 
But these sections relate wholly, as will be seen, to cemeteries 
belonging to a town, and which, therefore, are for the use of 
all citizens of a town. This statute has been upheld by the 
court as within the authority of the Legislature. But there is 
no statute authorizing the taking of land by the right of emi- 
nent domain by a cemetery association, nor is there any deci- 



HOSEA M. KNOWLTON, ATTORNEY-GENP]RAL. 329 

sion of the court indicating that such authority would be upheld 
as constitutional. 

Some confusion of thought has arisen over the peculiar status 
of burial grounds, and the sacredness with which they are prop- 
erly regarded. The customs of civilized society not only sanc- 
tion, but require, the burial of the dead. The same customs 
forbid that land which has been so appropriated shall afterwards 
be used for any other purpose ; and it has been uniformly held 
that there is no authority but an act of the Legislature that can 
authorize an encroachment for other purposes upon a tract of 
land which has been dedicated to burial purposes. Once used 
as a cemetery, the land so used is perpetually devoted to the 
purposes of burial, and cannot be sold or appropriated to other 
uses. Mount Auburn Cemetery \. Oambridge, 150 Mass. 12, 17. 

In Evergreen Cemetery Association v. City of New Haven, 
43 Ct. 234, it was held that land which had been appropriated 
to the purposes of burial could not be taken for a public street, 
under the general power given to towns and cities to take land 
for such a purpose, but that there must be authority specially 
granted by the Legislature. In this case it was said by the 
court (page 241) that "The use of land for a burial ground is a 
public use, and, for such a purpose, it may be taken, if need be, 
under the right of eminent domain." But the sentence quoted 
was not necessary to the decision, and must be regarded as obiter 
dictum. All that the decision of the court required was the 
position that the sanctity of burial grounds could not be in- 
vaded for other uses, public or private, without the direct 
authority of the Legislature. And in a subsequent suit (^Ever- 
green Cemetery Association v. Beecher, 53 Ct. 551), in which 
the corporation, apparently relying upon the dictum in the 
former opinion, undertook to acquire the land of the defendant 
by right of eminent domain, it was clearly held that no such 
right could be given to a corporation unless the cemetery was 
one in which there was a pul^lic right, to the extent, at least, 
that ' ' all persons have the same measure of right for the same 
measure of money." 

But this dedication of land for l)urial purposes to the extent 
that it must thereafterwards be used only for such purposes and 



330 OPINIONS OF THE ATTORNEY-GENERAL. 

for no other is very far from being a " public use," as that ex- 
pression is used with reference to the taking of land by the 
right of eminent domain. It may well be that, however dedi- 
cated, whether by public or private act, land once appropriated 
to the purposes of burial must be regarded as sacred, and not 
to l)e used for any other purpose whatever, excepting by au- 
thority of the Legislature. This, however, is not because it 
has l^een devoted to public uses, but from the peculiar nature 
of the use to which the land has been applied. 

It cannot be said that a cemetery, the use of which is con- 
trolled by an individual or a corporation, rights of burial in 
which may be limited or prohibited at the pleasure of the cor- 
poration owning the land, or of the owners of lots therein 
whose rights have been obtained from the original proprietors, 
is devoted to a public use. It is still private in its nature. 
The public have no rights in it whatever. The use of it may 
be confined to persons of a particular religious faith, or even 
to the original incorporators. It is not a public use, because 
the right of l)urial is not vested in the public, or in the public 
authorities. In re Deansville Cemetery Assji. 66 N. Y. 569. 

In my opinion, therefore, the Legislature has not the author- 
ity to grant to a cemetery association, however deserving, or 
however liberal the policy of its management, the right to take 
the land of private citizens without their consent. I am aware 
that such acts have been passed by the Legislature heretofore, 
and my attention has been expressly called to St. 1888, c. 183, 
which was an act similar in its purposes to the present bill. 
But I am not aware that the question now presented has been 
raised or passed upon. 

State Scholarships, — Massachusetts Institute of Technology. 

The sum of $2,000, already paid to the Massachusetts Institute of Technology 
for the year 1896 under authority of Res. 1895, c. 70, is not to be consid- 
ered as part payment of the sum of $4,000 payable for the year 1896 under 
St. 1896, c. 310. 

To the Kes. 1895, c. 70, provides that annually for the term of six 

Auditor. . 

1896 years there shall bo paid from the treasury of the Common- 

-^Lj wealth to the treasurer of the Massachusetts Institute of Tech- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 331 

nology the sum of $2,000 for scholarships, which sum was 
made payable from and after the first day of January in the 
year 1896. I understand from your letter that tlie sum of 
$2,000 has already been paid for the year 1896, an appropria- 
tion therefor having been made. 

St. 1896, c. 310, provides for the payment of the sum of 
$4,000 annually for scholarships, beginning on the first day of 
September in the year 1896. By the same act Ees. 1895, c. 
70, was repealed. 

The question stated in your letter is whether the $2,000 
already paid is to be c(nisidered as part payment of the $4,000 
provided for by St. 1896, c. 310. 

I am of opinion that St. 1896, c. 310, was not intended to 
supersede Ees. 1895, c. 70, as to the payment already made. 
Under the terms of the resolve, the amount appropriated was 
payaljle from and after the first day of January in each year. 
The Legislature must have had in view the fact that the pay- 
ment for the year 1896 had been made. Having made no de- 
duction by reason thereof for the year beginning Sept. 1, 1896, 
it is inferred that the Legislature did not intend any deduction 
to be made. 



Representative Districts. 

The division of the Commonwealth into districts containing as nearly as 
practicable an equal number of inhabitants in accordance with U. S. Rev. 
Sts., § 23, should be made with reference to the number of inhabitants 
as ascertained by the United States census. 

The Constitution of the United States, art. I., § 2, provides To the 

,^, /. -r-» • 1 n 1 Chairman of the 

that ' ' The House of Representatives shall be composed of committee on 

'- ^ Public Health. 

members chosen every second year by the people of the several isoe 
States." It further provides that representatives " shall l)e ap- ^^ 
portioned among the several States which may be included 
within this Union according to their respective numbers." Art. 
XIV. of the Articles of Amendment does not affect the ques- 
tions suggested in your letter. It is further provided in said 
art. I., § 2, that the "numbers" shall be determined by an 
enumeration to be made every ten years under the authority of 
Cono-ress. 



332 OPINIONS OF THE ATTORNEY-GENERAL. 

U. S. Rev. Sts., § 23, provides that representatives shall be 
elected "by districts composed of contiguous territory, and 
containing as nearly as practicable an equal number of inhabi- 
tants." 

Congress has further provided since the last national census 
that the number of representatives to which Massachusetts is 
entitled is thirteen. 

I believe the foregoing comprise all the limitations imposed 
upon the several States as to the election of representatives, to 
wit : they must be chosen by the people at an election held on 
the Tuesday after the first Monday of November ; there shall 
be thirteen from Massachusetts ; and they shall be elected by 
districts composed of contiguous territory, and containing, as 
nearly as practicable, an equal number of inhabitants. 

The apportionment of the number of representatives lieing 
by the United States census, I am of opinion that the divi- 
sion into districts "containing, as nearly as practical)le, an 
equal number of inhabitants," must refer to the numbers as 
ascertained by the United States census. 

Your question, " how far the joint committee can go in regard 
to changes, etc., and conform to the order attached," is one of 
policy rather than of law. If the committee conforms to the 
provisions of the United States Constitution and statutes aliove 
set forth, the whole matter of boundary lines, etc., is in their 
discretion. 

I need not say that the division into districts, although usually 
made once in ten years, may be made from time to time if the 
State sees fit. 



BosTOK Terminal Company, — Bonds, — Taxation. 

The bonds of the Boston Terminal Company secured by a mortgage upon its 
real estate are not taxable under the general law of the Commonwealth. 

To the J j^iii of the opinion that the bonds of the Boston Terminal 

Committee on ^ 

Railroads. Compauy, pi'ovidcd for in the proposed bill* for a southern 
May 13. uuioii statiou, arc not taxable. They are secured l)y a mort- 

gage of the real estate of the corporation, and are therefore 

* Enacted as St. 1896, c. 516. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 333 

debts secured by mortgage. Knight v. Boston^ 159 Mass. 551. 
There is no difference in principle, as far as the tax laws are 
concerned, between the bonds of the Boston Water Power 
Company, which were in issue in that case, and the proposed 
bonds of the Boston Terminal Company. 

They are not railroad bonds which are bonds issued by a 
railroad corporation. 

Railroad bonds, whether secured by mortgage or not, are 
taxable under the statutes of Massachusetts. Gen. Sts., c. 11, 
§ 4, enumerated the different classes of personal property 
subject to taxation. Among other things were enumerated 
"money at interest, and other debts due the persons to be 
taxed more than they are indebted or pay interest for ; " also 
as an additional class " public stocks and securities." In Hall 
V. County Commissioners, 10 Allen, 100, it was held that pub- 
lic stocks and securities were not included in the class of 
' ' money at interest and other debts due the person to be 
taxed." Metcalf, J., in his opinion says: "As the statute 
enumerates debts due to the tax payer and stocks and securi- 
ties, as distinct and separate subjects of taxation, the latter are 
not to be included in the former." 

Some time after this decision the assessors of the town of 
Northampton assessed a tax payer for certain railroad bonds 
held by him as a distinct class of property. The tax payer 
claimed that he had the right to deduct therefrom, for the pur- 
poses of taxation, debts due from him under the provisions of 
the statute which authorizes the deduction of debts due from a 
person from the debts due to him. The court, however, held 
that railroad bonds were not public stocks and securities ; and, 
not being enumerated as a separate class of property for the 
purpose of taxation, they were to be included in the class of 
' ' debts due the persons to be taxed ; " and therefore only to be 
taxed for the balance remaining after the deduction of the debts 
due from the holders thereof. Hale v. County Co7nmissioners, 
137 Mass. 111. 

In consequence of this decision St. 1888, c. 363, was enacted, 
by which railroad bonds as such were made a separate and dis- 
tinct class of property, subject to taxation. There can be no 



334 OPINIONS OF THE ATTORNEY-GENERAL. 

question that this was the clear intent of the Legislature ; and 
that under this statute railroad bonds were taken out of the 
class of " debts due the persons to be taxed" and made a class 
by themselves, in the same way that public stocks and securi- 
ties had theretofore been. 

The provision with relation to the exemption of debts secured 
by mortgage, as it appears in the Public Statutes, applies solely 
to the class of taxable property designated by the phrase, 
"money at interest, and other debts due the persons to be 
taxed," etc. It has no reference to the other classes of prop- 
erty, such as public stocks and securities, turnpike bonds, 
railroad bonds, etc. The same considerations which led the 
court to hold that the provision which authorizes the deduction 
of debts due from the tax payer from debts due to him did not 
include bonds separately enumerated as distinct subjects of 
taxation, apply with equal force to the provision in regard to 
debts secured by a mortgage. 

Whether the tax assessed upon the real estate of the Ter- 
minal Company should be deducted from its franchise tax is a 
question of legislative policy upon which I do not feel compe- 
tent to advise. I may be permitted to suggest, however, that, 
if the terminal bonds are made taxable like railroad bonds, then 
the deduction of the real estate tax from the franchise tax would 
make the whole bill consistent with existing legislation. What- 
ever objections might be urged against such a deduction would 
apply with equal force to the general law upon the subject. 



Trust Company, — International Trust Company, — Trust 
Fund, — Deposit. 

The International Trust Company has no authority to deposit in its banking 
department any portion of the fund held by it in trust. 

To the Your letter of February 17, which was duly received, re- 

Savings Banks J ' J ■> 

CommiBBioners. quests my opiuiou upon the following state of facts. 

May 11. The International Trust Company was chartered by St. 1879, 

c. 152. By this charter it is authorized, among other things, 
to receive deposits of money, and to invest the same in certain 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 335 

specified securities. Acting under this authority, it carries on 
a business of a bank of deposit, subject only to the limitations 
imposed by its charter. 

By St. 1883, c. 222, it was further authorized to carry on a 
trust business, and to act as trustee. Acting under this au- 
thority, it has established a trust department, the books of 
which are kept in due form, and separate and distinct from the 
books relating to its general business. From time to time 
money has been paid to it in trust under the authority of said 
statutes. It has been the custom of the company, when any 
part of the principal of a trust fund is uninvested, to deposit 
the amount in the banking department of the company, and 
issue therefor a certificate of deposit to itself as trustee, for the 
account of the particular trust to which the money belongs. 
These certificates are filed with the papers relating to the trust, 
and are treated as an investment thereof. AVhen any portion 
of the income of any trust remains undistributed, it is likewise 
deposited in the banking department, itemized and particular- 
ized, and entered to the credit of "trust deposits income," on 
the same ledger and in the same manner as the general deposits 
of the company. The money so deposited, both the uninvested 
portion of the trust fund and the uninvested income, is merged 
with the funds of the general depositors and the capital and 
surplus of the company. 

The question stated in your letter is, whether this method of 
doing business is authorized by the statutes governing the com- 
pany. 

St. 1883, c. 222, which allows the company to accept trusts, 
provides in § 2 that a portion of the capital shall be set apart 
as a trust guarantee fund. This trust guarantee fund, and all 
moneys or property received in trust, "shall be loaned or in- 
vested only in such securities as savings banks chartered in this 
Commonwealth are now or may hereafter be authorized to in- 
vest in." The section further provides that such money held 
in trust, including the trust guarantee fund, "shall constitute 
a trust deposit, and such funds and the investment or loans of 
them shall be especially appropriated to the security and pay- 
ment of such deposits, and not be subject to any other liabili- 



336 OPINIONS OF THP: ATTORNEY-GENERAL. 

ties of the corporation." It is also provided in said section 
that, "for the purpose of securing the observance of this pro- 
viso," the corporation shall have a trust department in which 
' ' all business pertaining to such trust property shall be kept 
separate and distinct from its general business." 

The plain purpose of these provisions is that the trust busi- 
ness of the company shall be absolutely separate from the bank- 
ing business of the company. The company claims that by 
keeping separate l^ooks of its trust department, and by identi- 
fying deposits of trust funds in its banking department by 
means of the certificates referred to, it sufiiciently complies 
with the provisions above quoted. But I do not think the 
purpose of the statute is accomplished merely by keeping sep- 
arate books. Books of account must obviously be kept, both 
of the banking business and of the trust business ; and the en- 
tries pertaining to one department are, of necessity, separate 
and distinct from those relating to the other department, 
whether kept in the same or different books. The statute 
does not look to the comparatively unimportant matter of 
book-keeping. It was framed to provide for the security of 
trust funds, by keeping them separate from the hazards of the 
general banking business in which the company engages. The 
business of receiving deposits subject to check, while not, 
necessarily, a hazardous enterprise, was yet regarded by the 
Legislature as an unsafe investment of trust funds ; otherwise, 
there would have been no occasion for providing so carefully 
for the separation of the trust department from the lianking 
department. But, if there is an actual mingling of trust funds 
with ordinary deposits, the only separation being in the method 
of book-keeping, the trust funds are exposed to the same 
hazards as ordinary deposits. It is true, special certificates 
of deposit are issued ])y the lianking department, and filed in 
the trust department. It will scarcely be claimed however, 
that in the event of insolvency in the banking department 
these certificates would have any priority over other deposits. 
If a loss occurred, the trust department would stand, at most, 
with other depositors, as a general creditor. In so far, there- 
fore, as the company, under any form of deposit, mingles trust 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 

funds, and the income thereof, with the funds of its banking 
department, it fails to comply with the letter and the spirit of 
the statute, which requires that "all business pertaining to 
such trust property shall be kept separate and distinct from its 
general business." 

It may be claimed that deposits of uninvested trust funds and 
undistributed income are temporary only, and that, inasmuch 
as such uninvested balance may properly be deposited with 
some sound financial institution, like a national bank, the 
company, lacing a sound bank, may well deposit them in its 
own banking department. I am not prepared to say, and the 
limits of your inquiry do not require me to determine, what 
the duty of the company is with reference to such uninvested 
balance. It is undoubtedly true that in the management of 
trust funds there will necessarily be on hand from time to 
time uninvested balances. These may arise from the sale of 
securities before opportunity of reinvestment occurs ; and, also, 
from the fact that it is sometimes impracticable to invest at 
once the whole of a trust fund. As to what shall be done with 
such uninvested balances, the law seems to be silent. Savings 
banks are expressly authorized (St. 1894, c. 317, § 21, cl. 5) 
to deposit five per cent, of their funds in national banks. This 
provision, however, does not appear to be applicable to trust 
companies. I do not think that it can be said that the provi- 
sion requiring trust companies to invest or loan trust funds in 
such securities as savings banks are authorized to invest in, 
can be said to include the depositing of such funds in national 
banks. A deposit subject to check is neither a " loan " nor an 
"investment," as those words are used by business men with 
reference to financial matters ; nor is a deposit book a " secur- 
ity," in the sense in which the word is used in the statute. 

But, whatever may be the duty of the trust company with 
reference to uninvested balances of trust funds, whether it is 
to keep such moneys in its vault, or to deposit them in some 
secure bank of deposit, I am still of the opinion thai; the intent 
of the statute is to forbid it to deposit such balances in its own 
bank. If it may deposit any portion of its trust funds in 
its banking department, the trust business to that extent, at 



338 OPINIONS OF THE ATTORNEY-GENERAL. 

least, is not kept "separate and distinct" from the banking 
business. 

That this is the intent of the statute, further appears upon 
general considerations of policy. It is a matter of common 
knowledge that when there is a stringency in the money market 
banking institutions are often in sore need of funds to maintain 
their ordinary loans. If the cashier of such an institution were 
at liberty to add the uninvested balances of trust funds in his 
custody to his banking funds, the temptation would be very 
great at times to allow trust funds to remain uninvested, that 
they might thus be used. It is upon the same considerations 
of public policy that the law has required the separation of 
savino;s banks and o:eneral bankino; institutions. The sound 
discretion as to the investment of trust moneys which is nec- 
cessarily imposed upon the trustee can only be safely exercised 
when he is free from all temptation to use any portion of the 
moneys either for his own purposes or for the purposes of the 
business in which he is engaged. 

I understand that the company also claims that its proceed- 
ings are authorized by St. 1883, c. 222, § 1, which provides, 
among other things, that any "corporation" may deposit in 
trust, or otherwise, with the International Trust Company, 
money or other property upon such terms as may be agreed 
upon. Under this provision it is claimed that the International 
Trust Company, being a "corporation," may therefore deposit 
its own trust funds in trust with itself. If I understand the 
claim of the company in this respect, it appears to be clearly 
fallacious. It is not for a moment to be supposed that the 
Legislature, in so carefully guarding the trust business, and 
providing that it should be kept separate and distinct, from its 
general business, intended to provide that as trustee it might 
deposit in its general banking department its own trust moneys 
in trust, to be used in such banking business. This section is 
to be read in connection with § 2, which regulates the manner 
of such deposits ; and, if it were to be held, as is ingeniously 
claimed by the corporation, that it might deposit its own trust 
funds with itself in trust, said trust deposits would immediately 
be subject to the provisions of § 2, which still require the same 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. • 339 

separation of such funds from the general banking business that 
had already existed before the deposit was made. In other 
words, if the company were to take trust funds, which the law 
requires to be kept separate from its banking business, and 
under the authority of § 1 deposited them with itself as trus- 
tee, such deposit must immediately go back to the trust de- 
partment from which it came. 

Upon the whole, therefore, I am of the opinion that the com- 
pany may not deposit any portion of the funds held by it in 
trust not otherwise invested, whether principal or income, in its 
banking department. 

Foreign Corporation, — Right to file Papers with Commis- 
sioner OF Corporations. 

A foreign corporation organized for the purpose of carrying on business as a 
wholesale and retail dealer in wines, malt and spirituous liquors, cigars 
and tobacco, and also as a licensed victualler, is entitled to file with the 
Commissioner of Corporations the power of attorney and other papers 
provided for by St. 1884, c. 330. 

Your letter of the 18th inquires whether the Boston Wine Tothe 

. . . '1111 Commissioner 

and Spirits Company, a corporation organized under the laws of corporations. 
of AVest Virginia, may, under St. 1894, c. 381, be allowed by May 25. 
you to file in your department the papers provided for by St 
1884, c. 330. 

The company in question appears by its charter to be organ- 
ized ' ' for the purpose of carrying on business as a wholesale 
and retail dealer in wines, malt and spirituous liquors, cigars 
and tobacco, and the business of a licensed victualler." 

The corporation cannot lawfully sell intoxicating liquors in 
this Commonwealth, Attorney-General's Opinion of January 
2, 1896.* The business of selling cigars and tobacco, and the 
business of a licensed victualler, are lawful, and may be carried 
on by the corporation in this Commonwealth. 

It is to be presumed that the corporation will in this Com- 
monwealth engage in only such business as it may be permitted 
by law to do here. Inasmuch, therefore, as one of the pur- 
poses for which it is incorporated is lawful in this Common- 

* See p. 304, ante. 



340 OPINIONS OF THE ATTORNEY-GENERAL. 

wealth, I ain of opinion that it is your duty to file the papers 
provided for by St. 1884, c. 330. The prohibition of St. 1894, 
c. 381, is only against the filing of papers of corporations "do- 
ins: a business in this Commonwealth, the transaction of which 
by domestic corporations is not there permitted by the laws of 
the Commonwealth." Attorney-General's Opinion of August 
25, 1894.* 

Civil Service, ^ Veterans' Preference Act, — Constitutional 
Law, — Public Officers. 

The case of Brown v. Bussell, 166 Mass. 14, decided only so much of St. 1895, 
c. 501, commonly known as the Veterans' Preference Act, to be unconstitu- 
tional as relates to the preference of veterans in filling public offices. 

The decision does not embrace positions which are in the nature, not of public 
offices, but of public employments ; and as to such positions it is the duty 
of the Board of Civil Service Commissioners to assume that the law is 
still in force. 

A public officer is one who, by the authority of the Legislature, either through 
appointment or election, is charged with a duty public in its nature, and 
which concerns tlie administration of the aff'airs of the Commonwealth 
and the rights of its citizens. 

To the Civil Your letter of May 6 calls for my opinion as to whether St. 

Service Com- '' ./ j. 

miBt^ioners. 1895, c. 501, $5 2 and 6, in view of the case of Brown v. Bus- 

1S96 J 7 J J 

Maj 26. sell, 166 Mass. 14, are in force with respect to certain offices 

and employments set forth in your letter. The four questions 
you propound comprehend practically the entire classification 
of offices and employments which by your rules are required to 
be filled by certification from your department, excepting such 
as are plainly included within the terms of the decision in the 
case above quoted. 

The opinion of the court in Brown v. Bussell does not hold 
that the Veterans' Preference Act is unconstitutional as to 
positions in the service of the Commonwealth which are mere 
employments, and are not offices. It only decides that the sec- 
tions under consideration, " so far as they purport absolutely 
to give to veterans particular and exclusive privileges distinct 
from those of the community in obtaining public office, cannot 
be upheld as enactments within the constitutional power of the 

* See p. 181, ante; Enterprise Bretcing Co. v. Grime, 173 Mass., 251. 



HOSEA M. KXOWLTON, ATTORNEY-GENERAL. 341 

General Court." How for the Legislature may give preference 
to veterans in disposing of the many employments which it 
creates and provides for, but which do not constitute the em- 
ployee a public officer, the court in express terms refrains from 
deciding. 

But the reasoning of the court deals almost exclusively \\dth 
the question of public offices. Throughout the opinion a clear 
distinction is made between public offices and public employ- 
ments ; and the decision of the court may be fairly said to turn 
upon the proposition as stated in the opinion, that " it is in- 
consistent with the nature of our government, and particularly 
with arts, YI. and YII. of our Declaration of Rights, that the 
appointing power should be compelled by legislation to ap- 
point to public offices persons of a certain class in preference 
to all others, without the exercise on its part of any discretion, 
and without the favorable judgment of some legally constituted 
officer or board designated by law to inquire and determine 
whether the persons to be appointed are actually qualified to 
perform the duties which pertain to the offices." 

There is no intimation in the opinion that the considerations 
which apply to pul:)lic officers would also be applicable to mere 
employments. It is even suggested that such positions might 
be given to veterans "partly in consideration of the service 
they render, and partly in recognition of and as a reward for 
the services which they have rendered to the Commonwealth in 
the past." 

Without venturing to express an opinion whether the dis- 
tinction suggested is sound, or will be sustained by the court 
when the question is directly raised, I think, inasmuch as 
positions which are employments merely, and are not pulilic 
offices, are expressly excluded not only from the reasoning of 
the opinion but from the decision, that it is the duty of your 
Board to assume that the law is still in force as to such posi- 
tions. The presumption in favor of legislative acts still binds 
your Board, excepting so far as the court has plainly instructed 
you to the contrary. 

This raises the important question. What are public offices? 
Here, again, the court abstains fi'om laying down any general 



342 OPINIONS OF THE ATTORNEY-GENERAL. 

rule. Indeed, Field, C. J., expressly says, "it is sometimes 
diflScult to make a distinction between a public ofBce and an 
employment." As is stated by the court, the terms "public 
office" and "public officer" are often used, and have acquired 
a well-understood signification. The difficulty lies in the ap- 
plication of general definitions to particular cases. The deter- 
mination of an individual case, especially one that is near the 
line, may require an examination not only of the statutes bear- 
ing upon it, but of all the facts and circumstances connected 
with it. I prefer, therefore, to answer your questions generally, 
leaving particular cases to be determined as they arise. 

Among those who are declared with more explicitness by the 
court to be public officers may be mentioned the following : 
sheriff. Fowler v. Beebe, 9 Mass. 231 ; deputy sherifl'. Buck- 
nan V. Buggies, 15 Mass. 180 ; coroner, JVason v. Dillingham, 
15 Mass. 170 ; constable, Elliott v. Willis, 1 Allen, 461 ; pub- 
lic weigher of vessels. Commonwealth v. Woods, 11 Met. 59 ; 
field driver, Gilmore v. Holt, 4 Pick. 258 ; assessor. Pease 
V. Smith, 24 Pick. 122 ; surveyor of highways, Upham v. 
Marsh, 128 Mass. 546 ; postmaster, Keenanx. Southworth, 110 
Mass. 474 ; commissioners appointed by the Governor, Fitch- 
hurg Bailroad Co. v. Grand Junction, etc., Co., 1 Allen, 552 ; 
town liquor agent, Dioinnels v. Parsons, 98 Mass. 470 ; county 
commissioners, J^ew Haven and Nojihampton Co. v. Hayden, 
117 Mass. 433 ; district attorney, Bulloch v. Aldrich, 11 Gray, 
206 ; city physician, Commonwealth v. Swasey, 133 Mass. 538 ; 
city engineer, Chandler v. Lawrence, 128 Mass. 213 ; town 
clerk and moderator, Attorney- General y. Crocker, 138 Mass. 
214; road commissioner, Clark v. Easton, 146 Mass. 43; 
police officer, PhiUijJs v. Boston, 150 Mass. 491, 494; and 
master of house of correction, and superintendent and instruc- 
tor thereof, CHare v. Jones, 161 Mass. 391. On the other 
hand, the court says, in Brown v. Russell, that "every copying- 
clerk or janitor of a public building is not necessarily a public 
officer." From these illustrations, and upon general consider- 
ations, it may be said that a public officer is one who, by the 
authority of the Legislature, either through appointment or 
election, is charged with a duty public in its nature, and which 



HOSEA M. KNOWLTOX, ATTORNEY-GEXERAL. 343 

concerns the government of the State and the rights of its citi- 
zens. "Whoever is entrusted vnth. powers which concern the 
administration of the affairs of the Commonwealth, or the rights 
of the public, and is appointed or elected to that duty under 
legislative authority, may be said to be a public officer. "What- 
ever just criticism may be made upon this definition is yet, I 
apprehend, more properly directed against the attempt to define 
than the definition itself. It is not easy to lay down any rule 
which may not be subject to modifications in view of specific 
facts. 

Applying these principles to the classifications referred to in 
your letter of inquiry, it is not difficult to decide that those 
included in the second di\dsion, schedules C and D, to wit, 
laborers, are not ]3ublic officers. Nor can it be properly said, 
in my judgment, that those described in schedule A, which in- 
cludes clerks, copyists, recorders, book-keepers, agents, etc., 
hold public offices. So far as I am informed of the facts, I do 
not see how it may be said that foremen of laborers, engineers, 
janitors, persons having charge of steam boilers in school build- 
ings, turnkeys, watchmen, drivers of prison wagons, gatemen, 
or guards in public parks and ferries, are public officers. The 
duties of all these are rather in the nature of employments than 
offices. They take no part in government. They do the work 
of the Commonwealth. They are its employees, not its officers. 

On the other hand, truant officers, although exercising a 
limited jurisdiction, are yet charged with responsible and im- 
portant duties. They are directed (St. 1894, c. 498, § 20) to 
make complaint for truancy, and to carry into execution the 
judgment thereon ; to serve all legal processes issued by the 
court; also (§ 23) to apprehend and take to school without a 
warrant all truants found wandering about the streets. They 
are clothed with authority, and "have and exercise some 
powers of government." Field, C. J., in Broicn v. Russell^ 
siqjra. 

The position of drawtender is also one which directly con- 
cerns the rights of the public. Pub. Sts., c. 53, § 30, pro- 
vides that a drawtender shall have full control of passing vessels 
through the draw, having due regard for the public travel, and 



344 OPINIONS OF THE ATTORNEY-GENERAL. 

shall enforce the ordinances or by-laws relating to the same. 
This makes him, in my judgment, a public officer. See JVotvell 
V. Wright, 3 Allen, 166. 

I am aware that in the foregoing distinctions I have not ex- 
hausted the list of positions upon which your letter calls for my 
opinion. To do so would require a more intimate knowledge 
of the statutes relating to those I have omitted, and the facts 
bearing upon their duties than I now have. In referring to 
some classes, I did so rather by way of illustration of the gen- 
eral principles stated than as attempting to cover the whole 
ground. If cases arise, which, notwithstanding the foregoing 
principles, seem to you to be doubtful, I will attempt to deal 
with them specifically, if desired. 



Insane Pauper, — Reimbursement of Town by Commonwealth 

FOR Support. 

Under St. 1892, c. 243, the town of Plainfield may be reimbursed by the Com- 
monwealth for the support of an insane pauper, including interest on the 
amount due, if payment was withheld for any reason ; but not for costs 
of court in defending a suit in which the settlement of the pauper was 
determined, nor for fees of witnesses and attorneys in said suit. 

To t^e I have the honor to acknowledo;e the receipt of your letter 

Lieutenant- ~ l j 

f^^'Qoveruox' ^^ ^^^ ^^' asking my opinion as to the extent to which the 
1896 Commonwealth may reimburse the town of Plainfield for the 

' support of one Ida Thayer, an insane pauper, under the pro- 
visions of St. 1892, c. 243. The bill accompanying your 
letter is for support for one hundred and eighty-one weeks ; 
for interest paid by the town upon the ])ill for said support ; 
for costs of court in defending a suit in which the settlement 
of the pauper was determined ; and for the fees of witnesses 
and attorneys in the same case. The case is reported. See 
Northampton v. Plainfield, 164 Mass. 506. 

The statute in question provides that the Connnonwealth may 
reimburse towns under a certain valuation the amounts expended 
by them for the support of insane paupers. Plainfield is within 
the terms of the act. The amount expended, therefore, for sup- 



HOSEA M. KNOWLTON, ATT0RNP:Y-GENERAL. 345 

port, including, perhaps, interest on the amount due, if payment 
was withheld for any reason, is a proper charge against the Com- 
monwealth, and a warrant therefor may lawfully issue. 

But the items for costs of court and attorneys' and witnesses' 
fees are not, in my judgment, within the terms of the statute. 
It is true the suit was decided with the hope of establishing the 
settlement of the pauper in Northampton rather than in Plain- 
field ; and if the town had prevailed, the Commonwealth would 
have been relieved from the burden of her support. However 
just it might be considered to be on general principles for the 
Commonwealth to pay the expense of litigation, there seems 
to be no authority for it in the statute. The word "mainten- 
ance " refers to the support of the pauper, and does not mean 
the maintenance of a law suit. 



Insurance, — Nature of Contract, — Theft. 

A contract with the owner of a bicycle to furnish him a substitute in the event 
of his own being stolen, the bicycle to be a duplicate of the original and 
to be returned only upon the recovery of the latter, is an insurance con- 
tract within the meaning of St. 1894, c. 522, § 3. 

I have your letter of the 12th, askino- whether, in my opin- To the 

•^ ' O ' ./ 1 Insurance 

ion, the contract of the American Wheelmen's Protective Asso- commissioner. 
ciation, a copy of which is submitted with the letter, is an juneis. 
insurance contract, under St. 1894, c. 522, § 3. 

From an examination of the copy submitted it appears to he 
an undertaking by the association, in consideration of a stipu- 
lated payment in cash, to furnish to the holder of the contract, 
whenever his bicycle is stolen from him, another bicycle. It is 
expressed in the contract to be a loan of a duplicate of the stolen 
bicycle, the same to be returned upon recovery of the original. 
The use of tliis expression, however, does not in any way modify 
the essence of the contract. It is, in fact, an undertaking to 
insure the holder of the policy against the loss of his bicycle by 
theft. This is insurance at common law. An insurance con- 
tract is a contract of indemnity against possible loss, whether 
the loss occurs by injury, destruction, death or theft ; and 
whether the agency of destruction is fire, water, disease or 



346 OPINIONS OF THE ATTORNF.Y-GENERAL. 

burglary. See Wilson r. IIilI, 3 Met. 66, 68 ; May on Insur- 
ance, vol. 1, c. 1, § 1, c. 6, § 73; vol. 2, c. 30. 

The only possil)le doubt upon the question stated is whether 
the definition of insurance given in St. 1894, c. 522, § 3, is in- 
tended to limit the meaning of the word as it is understood at 
common law. Insurance in that statute is defined to be "an 
agreement by which one party for a consideration promises to 
pay money or its equivalent or to do some act of value to 
the assured upon the destruction or injury of something in 
which the other party has an interest." 

This definition first appears in St. 1887, c. 214, § 3. It was 
taken from an opinion of Gray, C. J., in Com7nonweaUh v. 
Wetherbee, 105 Mass. 149, and was undoubtedly adopted by 
the Legislature as a judicial interpretation of the meaning of the 
word ; but an examination of the case cited shows that it was 
not intended in the opinion to limit the common-law definition 
of insurance. In the same opinion the chief justice said : "All 
that is requisite to constitute such a contract is the payment of 
the consideration l)y the one, and the promise of the other to 
pay the amount of the insurance upon the happening of injury 
to the subject by a contingency contemplated in the contract." 
A strict construction of the word "insurance," used by the 
chief justice, would exclude loss by theft ; but it is obvious 
from an examination of the whole opinion that the chief justice 
intended no such limitation. See May on Insurance, vol. 1, § 1. 

The established legislative practice also has been to regard 
such contracts as insurance contracts. St. 1894, c. 77, was 
* ' An Act to incorporate the New England Burglary Insurance 
Company " for the purpose of guaranteeing individuals against 
"loss and damage by burglary or housebreaking." See St. 
1895, c. 474. 

As commonly used, the words "destruction or injury" do 
not include "theft;" but, in view of the origin of the defini- 
tion, and of the ordinary meaning which attaches to the word 
insurance, I am of opinion that insurance against loss by theft is 
to be regarded as within the statutory definition. The posses- 
sion of the bicycle is property which vests in the owner ; this 
possession is destroyed by theft of the bicycle. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 347 



Member of Legislature, — Eligibility for other Office, — 
Insurance Examiner. 

A member of the House of Representatives is ineligible for appointment to 
the office of insurance examiner, created by St. 1896, c. 335, during the 
term for which he is elected. 

I have your letter of the 30th ultimo, inquiring whether the To the 

/vj /../., . T T 1 r-1 lusurance 

oince 01 examiner tor the insurance department, created by St. commieeioner. 
1896, c. 335, is such an office as is described in Pub. Sts., c. 2, juiy2. 
§ 33, so that a member of the House of Representatives for 
1896 is ineligible to appointment. 

Pub. Sts., c. 2, § 33, provides: "No member of the Senate 
or House shall, during the term for which he is elected, be eli- 
gible to any office under the authority of the Commonwealth 
created during such term, except an office to be filled by vote 
of the people." The obvious purpose of this statute is to re- 
move 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 place created by the Legislature of which 
he is a member. 

The office of insurance examiner, created by St. 1896, c. 335, 
is plainly within l)oth the spirit and the letter of the Public Stat- 
utes. It is an office the appointment to which must be approved 
by the Governor and Council, and the salary of which is to be 
paid out of the treasury. 

As to your further inquiry, whether a representative can re- 
sign his office after the prorogation of the Legislature, so as to 
become eligil^le to such an office, the statute provides that he 
shall be ineligible " during the term for which he is elected." 
A representative is elected for the political year beginning the 
first Monday in January ; he is therefore ineligible during the 
entire year. It is unnecessary to consider whether he can re- 
sign without the consent of the body of which he is a member, 
although the authorities are against such a proposition. See 
Fitchhurg Railroad Co. y. Grand Junction Railroad & Depot 
Co., 1 Allen, 552. 



348 



OPINIONS OF THE ATTORNEY-GENERAL. 



Lyman School for Boys, — Property. 



To the 
Secretary, 
Trustees of 
Lyraan aad 
Industrial 
Scbools. 

1896 
Jiily 7. 



The property acquired under Kes. 1896, c. 118, is to be used as part of the 

Lymaa School. 

I have the honor to acknowledire your request for an opinion 
as to whether the property acquired under Res. 1896, c. 118, 
can be used as a part of the Lyman Scliool. 

The resolve in question is entitled a ' ' Resolve to provide 
for the purchase of additional property for the Lyman School 
for Boys," and reads as follows: ^^ Resolved, That there be 
allowed and paid out of the treasury of the Commonwealth a 
sum not exceeding eight thousand five hundred dollars, to be 
expended under the direction of the trustees of the Lyman 
school for boys, for the purchase of the so-called Flagg fiirm in 
the town of Berlin, and for the proper repairing and furnishing 
of the buildings situated thereon." 

The enactment means what it says, nalmely, that it is for the 
purpose of providing for the purchase of additional property 
for the Lyman School. Additional property of the Lyman 
School is to be used as a part of the Lyman School. 



Insurance, — Accident Companies. 



To the 

Insurance 

Commissioner. 

1896 
July 13. 



In St. 1896, c. 515, the specific exceptions of accident companies in §§ 5 and 
7 are not to be regarded as annulled by the general exception in § 10 of 
the same, but are confirmed thereby, and the act is to be construed as 
though no such specific exception had been made. 

Your letter of June 19 requests my opinion upon the con- 
struction of St. 1896, c. 515, §§ 5, 7 and 10. Section 5 pro- 
vides that no assessment corporation except those ' ' engaged in 
the business of accident insurance " shall enter into certain con- 
tracts. Section 7 provides that policies shall not be issued 
upon the life of any person more than sixty years of age, pro- 
vided "that such corporations which insure against accident 
only may issue policies or certificates on the lives of persons 
not over seventy years of age." Section 10 provides, gen- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 349 

erally, that the provisions of the act shall not apply to com- 
panies ' ' transacting only an accident or casualty business upon 
the assessment plan." Your inquiry is, "in what condition 
these apparently contradictory .sections leave accident compa- 
nies as regards the provisions of §§ 5 and 7 of said act." 

I do not consider the sections as being even "apparently" 
contradictory. They are not well drawn ; but the meaning of 
the whole act is not difficult to discover. Sections 5 and 7 
specifically except accident insurance companies from the pro- 
visions of those sections ; while § 10, apparently ignoring the 
fact that such exceptions had been made in §§ 5 and 7, exempts 
accident insurance companies from all the provisions of the act. 
The specific exceptions in § § 5 and 7 are not to be regarded as 
annulled by the general exemption in § 10, but are confirmed. 
The act is to be construed as though no specific exceptions had 
been made in §§ 5 and 7. 



Cape Cod S^ip Canal, — Massachusetts Ship Canal Company, — 
Deposit of Money with Treasurer. 

The extension of time limits provided for in St. 1895, c. 464, § 8, entitled " An 
act to incorporate tiie Massachusetts Ship Canal Company," does not ex- 
tend the period of six months within which the company was required to 
make its deposit with the Treasurer and Receiver-General ; and a failure 
to make such deposit within said six months renders the charter null and 
void. 

Your letter of the 27th asks whether, in my opinion, it is xothe 
your "duty, as Treasurer and Receiver-General of the Com- isge 
mon wealth of Massachusetts, to receive the deposit required by " ^"'^ ^^ - 
St. 1895, c. 464, from the Massachusetts Ship Canal Company 
at the present, or at any subsequent time." 

The Massachusetts Ship Canal Company was incorporated l)y 
St. 1895, c. 464. Section 23 of said act is as follows : "The 
provisions of this act shall be null and void unless said canal 
company deposits with the treasurer of the Commonwealth the 
sum of one hundred and fifty thousand dollars within six months 
after the passage of tliis act, which sum shall be forfeited to the 
Commonwealth unless the work of construction is commenced 



350 OPINIONS OF THE ATTORNEY-GENERAL. 

within one year and completed within five years from the pas- 
sage of this act. Said sum of one hundred and fifty thousand 
dollars shall be refunded to said canal company when said canal 
is in operation, if not forfeited under the provisions of this sec- 
tion." The act took effect June 4, 1895. No deposit, or tender 
of deposit, was made within six months thereafter. The charter, 
therefore, is void unless the time has been otherwise extended. 

I understand it to be claimed, however, by the company that 
the time is extended by the provisions of § 8. That section 
provides that the corporation shall within six months from the 
passage of the act apply to the boards of Railroad Commission- 
ers and the Harbor and Land Commissioners, as a joint board, 
"to determine what provision shall be made by the canal com- 
pany for the crossing of said canal by the New York, New 
Haven & Hartford Railroad Company, and at what point such 
crossing shall be made by a railroad drawbridge, and for cross- 
ings for the public where the canal cuts through highways." It 
is further provided that said joint board shall determine said 
matters, and shall decide what arrangements shall be made for 
the temporary crossing of the location of the canal company 
while the drawbridge is being built, and shall further decide at 
what time the railroad company shall commence to use the new 
bridge and its approaches. The section then provides that 
"the time taken by said joint board, from the date of said peti- 
tion to said joint board to the date of their decision, shall be 
taken as additional time to all time limits and requirements set 
forth in this act." 

I am further informed that a petition was duly filed, as required 
by said § 8, with the boards of Railroad Commissioners and 
the Harlior and Land Commissioners, to wit, on the ninth day 
of November, 1895 ; and that no decision has been filed by said 
joint board. If, therefore, the time taken by the joint board 
from the date of the petition to the date of its decision is to be 
added to the limit of six months within which the deposit is to 
be made, as provided in § 23, then the company may still make 
the deposit. 

The question raised by the company, therefore, is, whether 
the provision that the time so taken by the joint board ' ' shall 



HOSEA M. KNOWLTON, ATT0RNEY-GENP:RAL. 351 

be taken as additional time to all time limits and requirements 
set forth in this act" includes the limit of six months within 
which the deposit is to be made. If the provision in § 8 be 
construed literally, the contention of the company is correct, 
for undoubtedly the period of six months within which it is 
provided the deposit is to be made is one of the " time limits 
and requirements set forth in this act." 

I am of the opinion, however, that the section is not to be 
construed as referring to all time limits set forth in the act, but 
only to such time limits as would be affected by delay in the 
action of the joint board. For example, the act provides that 
work shall be begun within one year, and that the canal shall 
be completed within five years. It may be said, however, that 
the company could not reasonably be expected to begin its 
work until the determination of the questions raised by the 
petition to the joint board ; and, further, that, if the board 
should })e a long time coming to a decision, it might prevent 
the canal company from completing its work within the pre- 
scribed period of five years. The Legislature, therefore, 
undoubtedly intended that these limitations as to beginning 
and completing the work should be increased by whatever time 
might be occupied by the joint board in coming to a decision. 

It cannot be said, as claimed by the company, that the ex- 
pression ' ' all time limits and requirements set forth in this 
act" is to be construed literally as covering all such limitations. 
Section 19 of the act provides that no taxes are to be paid 
either to the Commonwealth or to the towns until the expira- 
tion of three years after the canal shall have been opened for 
use. It is obvious that whatever loss of time mio:ht be caused 
by the delay of the joint board in coming to a decision has no 
efiect upon this limitation as to taxation. Indeed § 8 provides 
that the petition to said joint board shall be filed within six 
months from the passage of the act. Althougli this is a time 
limit, it Avould not, of course, be claimed that it is extended, 
or could be extended, by the time occupied l)y the joint board 
in reaching a decision. 

It is matter of history that many companies have been 
granted charters for the construction of canals across Cape Cod, 



352 OPINIONS OF THE ATTORNEY-GENERAL. 

and that without exception all have failed to carry out the pur- 
poses for which they were incorporated. Some of thein have 
encroached upon private and public rights ; and in more than one 
case the holding of an unused charter by a corporation has been 
the means of preventing the incorporation of another enterprise. 
This being so, it is obvious that the Legislature, in granting a 
^ charter to the Massachusetts Ship Canal Company, intended to 
impose upon the company the performance of certain things as 
a guarantee of its good faith, and of its purpose to carry out the 
work it was chartered to do. The construction of a canal 
across the Cape is a work which would benefit the public ; and, 
many companies having been chartered and having failed to 
carry out their work, these conditions and limitations were 
imposed upon this company so that it should soon be known 
"whether the company intended to build the canal ; and, if so, 
to make it expensive for the company to abandon the work 
having once entered upon it. 

It was provided by § 4 that the corporation should file its 
location within six months from the passage of the act, defining 
courses, distances, and boundaries; by § 8, as above stated, 
that it should apply to the joint board provided by said section 
for the location of railroad and highway crossings ; by § 20, 
that $500,000 of the capital stock should be subscribed for 
before the first day of December, A.D. 1896, and $100,000 
be paid in and actually used for the construction of the canal ; 
and by § 23, that the sum of $150,000 should be deposited 
with the treasurer, to be returned without interest when the 
canal was in operation, but to be forfeited unless the work was 
begun within one year and completed within five years from 
the passage of the act. All these provisions are intended to 
secure the actual inception of the undertaking within six 
months, undoubtedly so that the enterprise should not stand 
in the way of a new charter, if the conditions imposed upon 
this company were unfulfilled before the beginning of the next 
Legislature, The location of the railroad and highway cross- 
ings provided to be decided by the joint board is a matter 
which has nothing to do with the inception of the work, and is 
only incidental to its progress and completion. The filing of 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 353 

the location, which must be done within six months after the 
passage of the act, not only would not l)e delayed by the action 
of the joint board, but, on the other hand, no petition could 
well be filed with the joint board until the location itself were 
determined. Nor is the subscription to the capital stock in 
any way related to the action of the joint board. It may be 
that the provision that $100,000 should be actually used for 
the construction of the canal before the first day of December, 
1896, might be said to have some relation to the decision of 
the joint board ; also, as above stated, the provision that the 
work should be begun within one year and completed within 
-five years. 

But the provision that a deposit should be made in the treas- 
ury is required as a guarantee that the corporation had a bona- 
fide intention to carry out the work it was chartered to do. To 
accept the contention of the company would require me to hold 
that the Legislature intended that the company need not pledge 
itself to build the canal until the decision of the joint board was 
filed. This was not, in my judgment, the intent of the provi- 
sion. 

I am of opinion, therefore, that the extension of time limits 
and requirements provided for in § 8 only relates to such time 
limits and requirements as would be afi'ected by delay in the 
action of the joint board, and that it does not extend the period 
of six months within which the company was required to make 
a deposit with the Treasurer and Receiver-General. 

The charter, therefore, under the conditions set forth in § 23, 
has become null and void, and the company incorporated by 
said charter has no right to make the deposit with you.* 



Civil Service, — Foreman of Laborers, — Superintendent Income 
Division of Water Department of Boston, — Superintendent 
of Inspectors in Permit Division of Street Department. 

A foreman of laborers as classified ia Class 6 of Schedule B of Civil Service 
Rule VI. is a person who has immediate charge and oversight of a gang 
of laborers, directing them in their work and seeing that they keep a* 
work. 

* Affirmed in Massachusetts Ship Canal Co. v. Shaxo, 170 Mass. 572. 



354 OPINIONS OF THE ATTORNEY-GENERAL. 

The duties of the superintendent in the income division of the water depart- 
ment of the city of Boston and those of tlie superintendent of inspectors 
in the permit division of the department of streets, as appears from the 
facts stated, are not such as to bring those officers within the classifica- 
tion established by the civil service rules. 

To the Civil Your letter of May 16 states certain facts with relation to 

Service Com- '' 

mieeioners. three pcrsons recently appointed to office in the city of Boston, 
July 17. without certification by your Board, and asks my opinion as 

to whether, upon those facts, they were legally appointed in 
view of the statutes and rules relating to the civil service. 
Your letter further asks "what, if any, is the distinction be- 
tween a ' superintendent ' in a city department, under a com- 
missioner or head of the department, and a ' foreman,' as 
classified in Class 6 of Schedule B of Civil Service Kule VI."* 
It is not always practicable to lay down general definitions 
sufficiently broad and precise to cover all possible cases that 
may arise. It has been the practice of this office to refrain 
from attempting to reply to inquiries calling for a statement of 
general principles, but rather to determine specific questions 
as they arise. The general question in your letter above quoted 
is within this rule. To undertake to lay down in advance a 
clear distinction between a superintendent and a foreman is not 
practicable nor necessary. It is possible, however, to estabhsh 
some general principles of construction of the meaning and 
intent of the civil service statutes, and of the rules created by 
your Board in pursuance of those statutes, which may be of 
assistance in the consideration of specific cases. 

The civil service rules have, and are intended to have, only 
a limited application. Your l)oard has not undertaken, in the 
classification established by its rules, to comprehend all the 
departments of public service wdth which under the statutes it 
is authorized to deal. This right of limited application is 
recognized by the court. See Opinion of the Justices, 138 
Mass. 601. Certain officers are excepted from the operation 
of the civil service rules by law. St. 1893, c. 95, expressly 
exempts, among others, "heads of any principal departments 
of the Commonwealth or of a city." Subject to this and per- 
haps to some other exception in the same statute, all the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 355 

appointive officers in a city government may be classified l)y 
your rules. I do not understand, however, that you have 
attempted so to include the entire civil service of cities. On 
the contrary, there are many officers, not heads of principal 
departments, who are not classified under your rules. There 
are officers exercising duties of supervision, superintendence 
and inspection, who, on the one hand, do not come within the 
exception of the statutes exempting them from your rules ; and 
who, on the other hand, are clearly not within the classifications 
established by the rules. Attorney-General's opinions of Oct. 
12, 1892,* and Dec. 4, 1894. f So far as the question under 
discussion is concerned, your rules only attempt to classify 
such officers as are designated as ' ' foreman and sub-foremen 
of laborers " and " inspectors of work." 

I assume that your general inquiry is intended to suggest the 
question whether there is any intermediate ground between 
persons who are "heads of principal departments," under the 
statute of 1893, and who are thereby exempted from the rules, 
on the one hand, and "foremen and inspectors," on the other 
hand, who are in the classified service. If the classification of 
your Board were intended to be comprehensive, there might be 
some ground for holding that it was intended to include all 
persons doing the work of superintendents between the grade 
of a head of a principal department on the one hand, and actual 
laborers on the other hand. But your rules, as before stated, 
are intended to have a limited application only ; and it cannot 
be said, therefore, that such intermediate superintendents are 
to be classed as foremen unless the meaning of the words 
" foremen " and " inspectors " actually requires such an inter- 
pretation. 

There is no absolute line of distinction between a superin- 
tendent and a foreman. A foreman is a superintendent in one 
sense of the word ; and a superintendent may not improperly 
1)e called a foreman. But the word " foreman," in your rules, 
is to be taken in its usual and ordinary signification. As the 
^vord is commonly employed, it undoubtedly means a person 
who has immediate charge and oversight of a gang of laborers. 



See page 71, ante. f See page 194, a?ite. 



356 OPINIONS OF THE ATTORNPLY-GENERAL. 

directing them in their work and seeing that they keep at work. 
On the other hand, a superintendent, as applied to civil officers, 
is one who has charge and oversight of a department of govern- 
ment, either a principal or a subordinate department. He is 
an officer to whom is entrusted responsibility, judgment and 
skill. The distinction between a foreman under your rules 
and a superintendent was well suggested by my predecessor, 
Mr. Pillsbury, when he said, speaking of the rules of your 
Board, "it appears to me that the civil service act and the 
rules should, in general, be so construed as to distinguish 
between positions of routine, so to speak, which ordinarily do 
not involve administrative or discretionary powers, on the one 
hand ; and, on the other, positions which involve the exercise 
of judgment, discretion, authority, and responsibility; and that 
the ofeneral scheme is to include the former and not to include 
the latter class within the system." * 

Tliis ireneral distinction seems to me to be sound. A fore- 
man of laborers is entrusted only with the duty of seeing that 
his men keep at work. The meaning of this word is fixed and 
modified by the clause ' ' of laborers " which follows and limits 
it. A superintendent has the general charge and oversight of 
the work of a department, especially in its relation to the 
public, for whose benefit the department was created ; and 
under the authority of his chief, if he, himself, is not the head 
of the department, represents the administration of the govern- 
ment. 

The foregoing principles appear to me to be conclusive of 
two of the three cases submitted in your letter. 

M. J. O'Brien has been appointed "superintendent in the 
income division " of the water department. His duties, as 
they appear by the letter annexed to your communication, the 
statements of which for the purposes of this inquiry I am to 
take as conclusive, are to have charge of the Deacon system 
and waste of the water department. This division employs 
twenty or thirty laborers, some of whom are experienced, two 
to four foremen, some inspectors, a clerk and an engineer. 
This division is intended to enforce the provisions of St. 1895, 



* See page 71, ante. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 357 

c. 488, § 10, which provides that the Board "may inspect the 
water works and fixtures in any city or town supplied wholly 
or in part from the works under their charge, and may take all 
proper measures to determine the amount of water used and 
wasted and to prevent the improper use or waste of water. 

On these facts, I do not think that it can properly be said 
that O'Brien is merely a foreman of laborers. He has charge 
of a department of work comprising laborers, inspectors, a 
clerk and an engineer. His duties are not merely to see that 
laborers work faithfully ; they comprehend the administration 
of the powers and duties of the government, so far as they 
relate to waste in the public water supply. 

Edward Hayden has been appointed ' ' superintendent of in- 
spectors in the permit division" of the department of streets. 
His duties, as stated in the letter annexed to your communi- 
cation, comprise the control and supervision of the force of 
inspectors, clerks and messengers, working on permits issued 
by the permit division to any other department of the city, or 
to any corporation or company which requires a permit for the 
opening or use of the public streets. A number of this force 
are paid by corporations requiring the opening of the streets, 
although they are appointed by the superintendent of streets 
and are under his control. It is stated to l)e the further duty 
of Hayden to go about the city and superintend the work being 
done under the inspectors, and report to the superintendent of 
streets upon the condition of the work. 

These duties obviously require not merely vigilance in keep- 
ing laborers at work, but oversight, discretion and judgment as 
to the general plan of the work to be done. On the facts I am 
unable to say that Hayden is within the classification of fore- 
man of laborers ; he is that, and much more. 

Timothy F. Murphy has been appointed " superintendent of 
the patrol division " of the street department. The letter an- 
nexed to your communication states that ' ' he has full charge 
of the push-cart division of the entire city, and is responsible 
for the faithful performance of the work done by this division, 
personally visiting the several districts covered by the regular 
men daily." 



358 OPINIONS OF THE ATTORNEY-GENERAL. 

This somewhat meagre enumeration of the duties of Murphy 
is not sufficient to enable me to determine whether he is any- 
thing more than a foreman, or not. Apparently his duties 
consist merely in seeing that the men under him keep at work. 
If so, he is a foreman of laborers, with sub-foremen under his 
charge, and should be appointed under the civil service rules. 

It is further stated, in the letter which purports to enumerate 
his duties, that an extension of the system is contemplated, 
under which the entire city will be included in Murphy's de- 
partment, and an additional force of foremen and inspectors 
employed. The letter to which I refer was dated May 9. 
Whether any such extension as is proposed in. the letter has 
been made, or not, I have not been informed. If further con- 
sideration of Murphy's case is desired, I must request to be 
advised more fully upon the facts. 



Highway Commission, — Road Machines for Towns. 

The number of steam rollers and portable stone crushers which the Massa- 
chusetts Highway Commission may be required to furnish under the 
provisions of St. 1896, c. 513, is to be decided by the applicants and not 
by the commission. 

Upon a request made in conformity with said chapter for road machines otlier 
than steam rollers and portable stone crushers, the said commission is 
vested with discretionary power either to comply with or to refuse such 
request. 

To the I take pleasure in acknowleds-ino: your communication of 

Highway ^ \. 

Commission. July 21, requesting an interpretation of St. 189G, c. 513. 

July 22. The first question is, whether your commission has any dis- 

cretion in the matter of granting requests made by the county 
commissioners for steam rollers and other machines, or whether 
it is obligatory upon it to comply with each request as made. 

The power of the Massachusetts Highway Commission in rela- 
tion to this matter is to be gathered from St. 1895, c. 486, and 
St. 1896, c. 513. Under c. 486, just cited, the Commonwealth 
was obliged to furnish one steam road roller whenever an appli- 
cation conforma])le to law was made by a town. St. 1896, c. 513, 
repeals this act, and enacts that "Upon the application to the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 359 

Massachusetts Highway Commission of the county commission- 
ers of any county, made at the request of any town of not more 
than twelve thousand inhabitants within said county, there shall 
be furnished by said Highway Commission to said county, at 
the expense of the Commonwealth, one or more steam rollers, 
portal)le stone crushers and such other road machines as the 
said Highway Commission may deem necessary for the con- 
struction and maintenance of better roads in the town making 
such request." 

I can see nothing in this sentence, or the rest of the act, 
which leads me to believe that the duty of furnishing at least 
one steam roller, whenever a legal application has been made, 
is not obligatory upon the commission. 

Furthermore, I am of the opinion that the number of steam 
rollers and portable stone crushers needed is to be decided by 
the applicants, and not l^y the Highway Commission. The . 
grammatical construction of the sentence, and the purport of 
the law taken as a whole, coincide in my mind in justifying this 
construction. The position of the words, and particularly the 
use of the words " such other road machines," leads me to be- 
lieve that the discretionary power vested in the Highway Com- 
mission applies only to ' ' such other road machines as the said 
highway commission may deem necessary." Furthermore, the 
necessity of speed in the construction is essentially of local 
importance, and is generally guided entirely by local consider- 
ations. Taking this into consideration, with the fact that the 
town is ultimately to pay for the maintenance and management 
of the machines, I am of the opinion that the commission has 
no discretion upon any given occasion to decide upon the num- 
ber of steam rollers and portable stone crushers which shall be 
required. 

In reference to requests for road machines other than steam 
rollers and portable stone crushers, my opinion is that the com- 
mission is vested with discretionary power in the matter of 
granting or refusing such requests. 

In your second question you ask whether your commission 
has any control over the machines furnished in accordance with 
St. 1896, c. 513, after they have been delivered to the county 



3 GO OPINIONS OF THE ATTORNEY-GENERAL. 

commissioners. In reply to this only a general answer can be 
given. The machines still remain the property of the Com- 
monwealth, hut such control as is necessary for their manage- 
ment and maintenance is vested in the county conmiissioners. 
Whether in a fjivcn case the control sou<2;ht to be exercised is 
one of management and maintenance, or not, is a question that 
can be answered only when a specific case arises. 



Metropolitan Park Acts, — Appropriations for Park 
Purposes. 

The Auditor of the Commonwealth is required, under St. 1896, c. 550, to 
charge to the account of the fund created by the metropolitan park 
loans heretofore authorized such a sum as will be sufficient to meet the 
interest and sinking fund requirements up to and including the first day 
of January, 1900, and also to charge to the said account all amounts 
heretofore appropriated for the care and maintenance of metropolitan 
parks. 

He is not required under the said statute to set apart any portion of the said 
fund for the future care and maintenance of the said parks. 

To the Your letter of June 22 requests my opinion as to the con- 

Auditor. . . 

1896 struction of St. 1896, c. 550, relative to the metropolitan 

^-L!?' parks and boulevards. In order to understand the questions 

raised it is necessary to review the legislation relating to met- 
ropolitan parks. 

The Metropolitan Park Commission was created, and author- 
ized to lay out and construct parks, by St. 1893, c. 407. By 
§ 9 of that act a loan of one million dollars was authorized for 
a term not exceeding forty years, "to meet the expenses in- 
curred under the provisions of this act." It was not the pur- 
pose of the Legislature, however, to impose the burden of the 
laying out, construction or maintenance of the metropolitan 
parks upon the Commonwealth. A policy of reimbursement 
from the cities embraced within the metropolitan parks was 
established in the original act, which has never been departed 
from in any sul)sequent legislation. The act in question pro- 
vided that a special commission should be appointed, for the 
purpose of determining substantially the proportion in which 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 361 

the expenses of metropolitan parks should be borne by the 
cities and towns in the metropolitan district. The proportion 
assessed upon Boston was to be fifty per cent, of the whole. 
The proportion to be assessed upon the other cities and towns 
was to be determined by this special commission so constituted. 
A sinking fund was created by the act authorizing the loan, the 
annual contributions to which should be sufficient to extinguish 
the debt at maturity. Section 12 of the act provided that the 
amount of money required each year from the cities and towns 
in the district to meet the interest, sinking fund requirements 
and expenses for each year, should be estimated by the Treas- 
urer in accordance with the proportion established by the special 
commission, and assessed upon such cities and towns as a por- 
tion of their State tax. By the operation of this plan, there- 
fore, although all the moneys required for metropolitan parks 
was to be raised by the Commonwealth by means of a loan, and 
advanced when necessary, the whole of the principal and in- 
terest of said loan, and the expenses of maintaining the parks, 
were eventually to be assessed as a tax in the proportion thus 
ascertained upon the cities and towns in the district. 

A special commission was thereupon appointed by the Su- 
preme Judicial Court, which proceeded to hear the parties, and 
to assess the proportion to be paid by each city and town within 
the district. This report was ultimately confirmed by the court. 
From time to time additional authority to expend money in 
laying out and constructing parks and parkways was granted 
to the commission, and loans for corresponding amounts author- 
ized to be made by the Treasurer to meet the expenses thereof, 
the whole amount of loans, so authorized, being $4,300,000. 
The last loans voted were by St. 1896, cc. 466 and 472. By 
c. 466 the Park Commission was authorized to "expend the 
further sum of one million dollars, in addition to all sums here- 
tofore authorized to be expended l)y it ; " and to meet the ex- 
penditures so authorized to be incurred the Treasurer was 
directed to issue a corresponding amount of scrip or certificates 
of indebtedness. By c. 472 the commission was authorized to 
expend the further sum of five hundred thousand dollars for 
roadways and boulevards, and a corresponding loan was au- 



362 OPINIONS OF THE ATTORNEY-GENERAL. 

thorized to be made by the Treasurer. The acts were approved 
June 4, 1896, and took effect upon their passage. 

Under the act creating the Park Commission (St. 1893, c. 
407) it was directed to estimate annually the expense of pres- 
ervation and care of the parks for the ensuing year, and cer- 
tify the same to the Treasurer, such expenses to be apportioned 
among the cities and towns in the same manner as the ex- 
penses of location and construction. This estimate was 
limited in the original act at twenty thousand dollars, l)ut the 
limitation was afterwards removed. In pursuance of this au- 
thority, estimates have been made 1)y the commission from 
time to time, and the legislature has each year appropriated 
sums of money to be paid out of the ordinary revenue for the 
care and maintenance of the parks, to Avit : 1894, $20,000 ; 
1895, $37,000; 1896, $40,000. Under the statutes of appro- 
priation these sums were not taken from the park loans, but 
were , imposed upon the cities and towns in the district, in 
addition to the amounts authorized for laying out and con- 
struction. 

Complaint was made by some cities and towns that the 
apportionment established by the commission was necessarily 
premature, being made before the completion of the work of 
laying out and constructing the parks, and, therefore, possibly 
unfair. The statute under consideration (St. 1896, c. 550) 
was undouljtedly passed in recognition of the justice of these 
complaints. It does not undertake to change or modify the 
purpose originally declared by the Legislature of assessing the 
expenses of the laying out, construction and maintenance of 
metropolitan parks upon the cities and towns within the dis- 
trict, but it abolishes the work of the special commission above 
referred to. It further directs the Park Commission to lay 
out and construct all the parks which it is authorized to con- 
struct before the first day of January, A.D. 1900 ; and further 
provides that during the year 1900 a new special commission 
shall be appointed to assess the proportions to be paid by the 
several cities and towns in the district, in the same manner as 
was provided by the original act. The necessary intent of 
this law is, not to impose any part of the burden of metropoli- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 363 

tan parks upon the Commonwealth, but to postpone the time 
when the cities and towns shall begin to reimburse the Com- 
monwealth for the money advanced by it for that purpose. 
But, inasmuch as it would be onerous to require the cities and 
towns in the district to pay in one sum all the interest and 
fixed charges, and expenses of maintenance incurred from the 
beginning of the enterprise up to the year 1900, the act pro- 
vided that all these charges and expenses should be paid ])y 
the Treasurer out of the loans authorized. The result of this 
will be that in the year 1900 the only demand upon the cities 
and towns will be the bonds then outstanding, the interest, 
sinking fund requirements and all expenses of care and main- 
tenance accruing prior to that time having been paid out of the 
loan itself. It follows that the time of beginning reiml)urse- 
ment to the Commonwealth by the cities and towns is thus 
postponed for four years ; but, as a necessary result of this, 
either the amount to be expended for parks and boulevards 
must be reduced, or the amount to be paid by the cities and 
towns must be increased. This is because the whole sum which 
the cities and towns assume from and after the first day of 
January, 1900, includes all interest and sinking fund require- 
ments and expenses of maintenance to that date, these sums 
being necessarily either added to the whole loan, which is thus 
made greater, or taken from the loans now authorized. 

The question stated in your letter is this, substantially : Is it 
the intent of the act that the loans heretofore authorized shall 
be increased by the amount of the interest, sinldng fund require- 
ments and expenses of maintenance already incurred, and to be 
incurred between now and the year 1900, or are those expenses 
to be deducted by you from the fund created by the loans already 
authorized? The question is one of importance, because the 
necessary result of deducting all the charges and expenses so 
imposed upon the loan itself is to cripple seriously the work 
of the Park Commission by diminishing the amount of money 
placed at its disposal by previous acts, the last of which was 
enacted June 4, only five days before the act in question took 
effect. If you are to reckon only such expenses as already 
have been authorized, and the interest and sinking fuiul require- 



364 OPINIONS OF THE ATTORNEY-GENERAL. 

ments now contracted for, the amount to ho deducted from the 
fund created 1)}^ the park loans will be, I am informed, about 
$700,000. If the statute requires you to go further, and de- 
duct such sums as you estimate will ])e required for expenses 
from this time until the year 1900, the amount to be deducted 
will be about |950,000, or nearly the whole amount which the 
commission w^as authorized to expend upon parks, under the 
authority of the act of June 4 passed by the same Legislature. 

It is claimed by tlie Park Commission that it is inconceivable 
that tlie Legislature on the fifth day of June should authorize 
the commission to expend the sum of one million dollars, and 
on tlie ninth day of June practically take away this power. 
The act of June 5 was passed after a careful consideration of 
the purposes and needs of the commission. I am told that it 
was stated by the Park Commission to the Legislature that tlie 
sum of one million dollars was needed to complete the parks 
according to the plans under consideration before them ; and 
the statute of June 5 giving them that sum must be taken to 
be a recognition by the Legislature of tlie needs of the commis- 
sion at that time. 

The Park Commission claim that both acts must be construed 
to stand rather than fall, and that the latter act must be taken 
to be an authority, express or implied, for an additional loan 
by the Treasurer to meet the charges and expenses so imposed 
upon the loan itself. 

There is much force in this contention, but the difficulty in 
the way is that it is not sustained by the plain language of the 
last statute, being the one under consideration. Section 1 of 
this statute provides, in express terms, that "the Treasurer of 
the Commonwealth shall pay from the proceeds of the loans 
authorized " all moneys required up to and including the first 
day of January, 1896, to meet interest and sinking fund require- 
ments, and cost of maintenance. The Legislature of 1896 can- 
not be said to have required the Treasurer to speculate upon 
the chances that a future Legislature would authorize an addi- 
tional loan. The words "loans authorized" cannot be con- 
strued to mean loans hereafter to be authorized. A loan is not 
authorized until the act therefor is passed l)y the Legislature ; 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 365 

and I cannot advise you that the Legislature of 1890 gave you 
any ground by the language of § 1 to expect that an additional 
loan would be authorized by a future Legislature. A legis- 
lative body cannot bind its successor, nor can it authorize the 
officers of the government to act m anticipation of what may 
be authorized by a succeeding Legislature. 

Still less can the section be said to be a present authority for 
an additional loan. The language not only does not warrant 
such an inference, but it plainly points to the contrary ; it 
directs the Treasurer to pay the charges in question out of the 
<' loans authorized," not out of loans to be created therefor. 

I am of opinion, therefore, that it is your duty to transfer to 
the account of the fund created by the metropolitan park loans 
heretofore authorized, such a sum of money as will be sufficient 
to meet the interest and sinking fund requirements up to and 
including the first day of January, 1900. 

It is probable that, so far as the intent of the Legislature can 
be ascertained from the language of the section, it was expected 
that further expenses of care and maintenance of the parks, as 
" annually authorized" by the Legislature, should also be paid 
out of the same fund. In my judgment, however, it is im- 
possible for you to carry out this intent. You cannot even 
estimate what may be the action of future Legislatures. It is 
not sound logic to estimate from the action of previous Leg- 
islatures what will be the amount appropriated by future Legis- 
latures for care and maintenance. The General Court is the 
sovereign, and no citizen or officer can presume in advance 
what its action will be. If you were to undertake to reserve 
any sum of money out of the park loan fund for future care 
and maintenance, there is no middle ground. It would be 
your duty to reserve the entire loan to await the action of 
future Legislatures up to the first day of January, 1900. The 
result of this would be to stop all work upon the parks. Not- 
withstandins: the evident meanins; of the lano'uaffe of the act, 
I am of the opinion that you are not called upon at this time to 
set apart any portion of the fund for future unascertained and 
unascertainable contingencies. It is your duty to charge the 
fund with all the amounts heretofore appropriated for care and 



366 



OPINIONS OF thp: ATTORNF.Y-GENERAL. 



maintenance. When you have done this, your duty in this 
respect is discharged. If a succeeding Legislature shall, in the 
exercise of its sovereign power, appropriate a sum of money 
for care and maintenance of the parks, and, under the author- 
ity given by previous Legislatures, all the then available pro- 
ceeds of park loans have been expended by the commission for 
the purposes of park construction, it is to be presumed that the 
Legislature which makes the appropriation will provide the 
means for its payment, either out of the ordinary revenue or 
by authorizing a new loan. 



Ballot Law, — McTammany Voting Machines. 



To the 
Secretary. 

1896 
August 5. 



The Secretary of the Commonwealth may not omit from the McTammany 
voting machines, furnished under the provisions of St. 1896, c. 498, the 
name of any candidate duly nominated for office. 

I have your letter of the 15th, asking to be advised whether 
it is within the power of the Secretary of the Commonwealth 
to omit from the McTammany voting machines, to be furnished 
under the provisions of St. 1896, c. 498, the names of any 
candidates who are duly nominated for office. The imj)ortance 
of the inquiry arises from the fact that the McTammany machines 
which have been prepared for use are capable of being used for 
the names of fifty candidates only ; whereas, in the election to 
be held in November it is probable that the whole number of 
candidates duly nominated will be one hundred and fifty. If, 
therefore, machines are provided for the voters' use, in order 
to vote thereby it will be necessary to furnish three machines 
in each voting place, — a contingency which it may well be 
supposed the Legislature did not foresee. 

The statute in question directs the Secretary, upon the re- 
quest of the board of aldermen of a city or selectmen of a town, 
to furnish to the said city or toAvn a sufficient number of Mc- 
Tammany voting machines ' ' to enable all candidates for all 
offices (national. State, city or town) to be filled at such elec- 
tion to be voted for on such machines." I am of the opinion 
that, in view of the provisions of the statute above quoted, the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 367 

name of no candidate who is duly nominated for office under 
the provisions of the statutes of Massachusetts may be omitted 
from the machine. 

I am aware that under the provisions of the Australian ballot 
law all candidates for election shall be voted for upon one bal- 
lot. If, therefore, the McTammany machine were a mere de- 
vice for expressing the will of the voter, each upon a separate 
ballot, there would be much force in the contention which migfht 
be made that more than one machine could not be used ; but 
the McTammany voting machine does not produce distinguish- 
able individual ballots. The choice of the voter is made by 
punching a hole in a certain place upon a long cardboard, the 
location of the punch indicating the person for ^vhom he voted. 
Many voters record their choice upon the same cardboard, and 
there is nothing by which one individual ballot can be designated. 
Consequently, it is of no consequence whether the cardboards 
which contain the punches which stand for votes shall be large 
enough to receive the votes for all the candidates ; or whether, 
on the other hand, part of the candidates are voted for on one 
tally sheet and part upon another, if all of the candidates for 
any given office are voted for upon the same sheet. The pro- 
vision of the Australian ballot law which requires all candidates 
to be voted for upon one ballot is therefore inapplicable to ma- 
chine voting. 

Your letter states that it is claimed that, under the pro- 
visions of St. 1893, c. 465, § 6, authority may be found for such 
omission. This section provides that at any election where the 
ballot machine is used blank ballots shall be provided for the 
voters, on which any voter may vote "instead of on the ma- 
chine." The object of this provision is to make the use of the 
McTammany voting machine by the voter permissive instead 
of compulsory ; so that, if he prefers not to use the machine, 
he may write out his vote. It does not, in my opinion, au- 
thorize the establishment of voting arrangements whereby the 
voter may use the machine in the discharge of a portion of his 
duty of voter, but must resort to a paper ballot for the re- 
mainder. 



3G8 



OPIXIONS OF THE ATTORNEY-GENERAL. 



To the 
Lieutenant- 
Governor, act- 
ing Governor. 

1896 
August 11. 



State House Addition, — Contract for Electric Lighting, — 
Advertising for Proposals. 

A statute requiring proposals for work or material exceeding a certain sum 
in value to be advertised for cannot be regarded as requiring a useless 
and unnecessary formality, where no good will result to the Common- 
wealth thereby; and such a statute does not render it necessary to 
advertise when there is no possible competition, and but one customer 
for the contract. 

The State House Construction Commissioners are not required to advertise 
for proposals for furnishing electric lights to the intermediate portion of 
the State House extension. 

I have the honor to acknowledge the receipt of your request 
for my opinion as to whether the State House Construction 
Commissioners are required to advertise for proposals for 
furnishing electric lights to what is called the intermediate 
portion of the State House extension. St. 1889, c. 394, § 4, 
provides that all work done by the commissioners shall be "by 
express contract," and " proposals for work or material exceed- 
ing one thousand dollars in value shall be advertised for," etc. 
I am informed that the proposed work will cost more than one 
thousand dollars, and that it is therefore within the letter of 
the statute quoted. 

The commissioners have called upon me and stated facts 
bearing upon the question as follows. What is known as the 
intermediate portion of the State House addition is that part 
which connects the State house annex, so-called, to the original 
State House. Work upon this intermediate portion was not 
begun until the portion of the addition now in use was com- 
pleted and occupied. The whole structure, including the 
intermediate portion, strictly speaking, is the State House 
addition, and as such is included in the provisions of the 
statute authorizing the work. The whole work was not con- 
structed together, because the Governor and Council, in 1891, 
in view of the pressing need of additional accommodations, 
instructed your Board to proceed with and complete the north- 
ern part before beginning upon the intermediate work. 

When it became necessary to contract for electric lighting 
for the part now in use, proposals were issued and duly 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 389 

advertised, and a contract was made with the General Electric 
Company, they l)eing the lowest bidder, for constructing a 
plant and furnishing electric lights to the annex Ijuilding. 
This contract was for a gross sum. At the time it was sup- 
posed that the plant contracted for would be sufficient to 
furnish all the lighting needed for the intermediate portion and 
the old State House as well, but it has been found to be suffi- 
cient only for the part of the addition now in use. It becomes 
necessary, therefore, to provide for electric lighting for the 
intermediate portion. 

I am informed that it would be impracticable to contract 
with any other person or company for an addition to the pres- 
ent plant sufficient to furnish lighting for the intermediate 
2:)ortion and for the old State House. Each electric lighting 
company has its own machinery and methods of producing 
light, and the methods of other companies cannot be used con- 
jointly in this plant. 

The commissioners, therefore, are driven to one of two 
alternatives. Either they must establish a new and indepen- 
dent plant for the intermediate portion and for the old State 
House, thus providing for two engines, boilers, dynamos and 
other apparatus, or the addition necessary for the new work 
must be made by the present company, as an extension of their 
present contract. The former alternative is not to be consid- 
ered, by reason of the great additional expense which would be 
Involved by the establishment and maintenance of two electric 
lighting plants under one roof. 

It follows, therefore, that the only practicable course open 
to the commissioners is to extend the present plant sufficiently 
to provide for the lighting of the whole building. This being 
so, to advertise for proposals would be a needless form, there 
being but one possible bidder. It would also be an injustice 
to other possible bidders, who might not understand that their 
bids could not be considered in any event. 

I am further informed that the commissioners are able to 
make a contract with the company now lighting the larger por- 
tion of the annex for such an extension of its plant as will be suffi- 
cient for all the new work, upon the basis of the present price. 



370 OPINIONS OF THE ATTORNEY-GENERAL. 

Upon these facts, I am clearly of the opinion that the com- 
missioners are not required to advertise for proposals for 
lighting the intermediate portion, that being the specific matter 
to which my attention is called. I do not understand that at 
present they have any authority for the lighting of the Bul- 
finch front. While the law is explicit in providing that con- 
tracts shall be made after advertisement, I am of opinion that, 
in view of all the facts, the proposed work may properly be 
regarded as an extension of work already contracted for in 
accordance with the provisions of law, and therefore such a& 
need not be advertised for. The law cannot be regarded a& 
requiring a useless and unnecessary formality, where no good 
will result to the Commonwealth. It cannot be necessary to 
advertise when there is no possible competition, and but one 
customer for the contract. 



State Highway Acts, — Contracts between Highway Commis- 
sion AND Cities and Towns, — Sub-Contractors, — Employ- 
ment OF Citizens op Commonwealth. 

A town having contracted with the Massachusetts Highway Commission for 
the construction of a State highway under the provisions of St. 1894, 
c. 497, § 4, may malie contracts with other contractors for the perform- 
ance of the work or any part thereof for which it has so contracted. 

St. 1896, c. 481, § 2, which provides that no persons except citizens of the 
Commonwealth shall be employed on the worlc of constructing State 
highways, applies to employees actually employed on the work of repair- 
ing or constructing ; and a contractor who is an employer only is not 
within the prohibition of said section. 

No contractor may employ persons in the work of constructing State high- 
ways who are not citizens of this Commonwealth. 

To the I have your letter of the 29th, requesting my opinion upon 

Commission, two qucstioHs stated therein. 

1896 . 

August 11. J^irst. — Whether a town having a contract with your com- 

mission has the right to sublet its contract or any part thereof 
to other contractors. 

St. 1894, c. 497, § 4, provides that, when the commission is 
about to construct a highway, it shall give to each city and 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 371 

town in which said highway lies a copy of the plans and speci- 
hcations ; and such city or town shall have the right without 
advertisement to contract wdth said commission for the con- 
struction of so much of such liighway as lies within its limits, 
in accordance with the plans and specifications and under its 
supervision and subject to its approval, at a price agreed upon 
between the commission and the city or town. It was not the 
purpose of this section to secure the services of town officials 
in constructing State highways in preference to those of other 
persons. It cannot be said that town authorities have any such 
special skill or experience in the construction of highways as 
makes it advantageous to the Commonwealth to have its roads 
built by them. The purpose of the statute was rather to favor 
towns in the performance of the work, to the end that its citi- 
zens might have employment on the work, as they would have 
had if the road had been built by the town instead of by the 
State. The section is in the interest of the town and its citi- 
zens, rather than the Commonwealth. 

This being so, it is of little consequence to the Commonwealth 
whether the town shall perform the work which it contracts to 
do for the State, or shall sublet the whole or any part thereof 
to others. The work contracted for by the commission must 
still be done "under its supervision and subject to its ap- 
proval," by whomsoever has the contract. I see no reason why 
towns may not, if they see fit to, make contracts for the per- 
formance of the work or any part thereof which they may con- 
tract to do for this Commonwealth. 

The second question in your letter is as follows : " If a town 
having a contract with this commission has a right to legally 
sublet any portion of the work to a contractor living out of 
the State, and if it would make any diff'erence whether the con- 
tractor employs citizens of this Commonwealth, or not." 

St. 1896, c. 481, § 2, provides that '*No persons except 
citizens of this Commonwealth shall be employed on the work 
authorized l^y this act." The work referred to is the construc- 
tion of State highways, for which the sum of $600,000 was 
appropriated. I do not think a contractor is necessarily a 
person employed in the work. That expression as used in the 



372 OPINIONS OF THE ATTORNEY-GENERAL. 

statute refers to employees actually employed on the work of 
repairing or constructing. A contractor is usuall}^ an em- 
l^loyer, not an employee. If the contractor is an employer 
only, he is not within the prohil)ition of the section quoted. 
Whether he is a citizen of the Commonwealth or not, however, 
he may not employ persons in the work who are not such citi- 
zens. 



Contagious Diseases among Domestic Animals, — Quarantine, — 
Payment of Expenses by Commonwealth. 

St. 1894, c. 491, § 27, as amended by St. 1895, c. 496, § 9, which provides for 
the payment, iu certain cases, by the Commonwealth of the expenses of 
quarantined animals, applies only to such animals as are of the class that 
yield edible products while living, and not to animals no product of which 
while living could be sold for food purposes. 

Cattle^ Your letter of the 2 2d ultimo requires my opinion upon the 

Coramiesioners, ,mcgt,ion whctlicr the Commonwealth is liable for the expenses 

1896 ^ ^ , '^ 

August 12. of quarantined animals held upon the premises of the owners 
thereof for more than ten days, 

St. 1894, c. 491, § 7, provides that, when an inspector upon 
examination of a domestic animal suspects or has reason to be- 
lieve that the animal is affected with a contagious disease, and 
" whenever directed to do so by the Board of Cattle Commission- 
ers, he shall immediately cause said animal to be quarantined 
or isolated upon the premises of the owner. Section 26 of the 
same chapter provides that the boards of health of cities and 
towns, in case of the existence of any contagious disease among 
domestic animals, shall cause the animals which are or which 
they have good reason to believe are infected with any con- 
tagious disease to be quarantined in some suital)le place within 
the limits of such city or town. Section 45 provides for quar- 
antine, by the Board of Cattle Commissioners, of all domestic 
animals affected with contagious disease, whenever satisfied that 
the public good requires it. Section 27 of the same act, as 
originally enacted, provided that, when any animals were quar- 
antined upon the premises of the owner, the expense thereof 
should be paid by such owner or person in possession. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 37S 

By St. 1895, c. 496, § 9, the section last referred to (§ 27) 
was amended by adding thereto the provision that ' ' Whenever 
specific animals are quarantined or isolated under the provi- 
sions of sections seven, twenty-six and forty-five of this act 
more than ten days upon such premises (of the owner), as 
suspected of being afliicted with a contagious disease, and the 
owner is forbidden to sell any of the product thereof for food 
. . . the expense of such quarantine shall be paid by the 
Commonwealth. " 

Acting under the above provisions of the statutes, I am 
informed that your Board has issued two forms of orders of 
quarantine, one for all animals except cows in milk suspected 
as tuberculous, and the other for cows in milk. In the order 
for cows in milk, the owner is expressly forbidden to sell or 
dispose of the milk therefrom in any market. No such prohi- 
bition is contained in the other form of order. The question 
to which my attention is directed by your letter is whether, in 
the cases where bulls, oxen and dry cows are quarantined with- 
out the prohibition above referred to (to wit, against selling 
the milk), the Commonwealth is liable for the expenses of 
quarantine after the period of ten days mentioned in the statute. 
It is claimed by some owners of cattle so quarantined that, 
although no express prohibition is inserted in the order, they 
have in fact no right to sell the meat from such cattle, if killed 
by them, and that consequently they are within the provisions 
of the amended statute, which provides for the payment of the 
expenses by the Commonwealth when the owner is "forbidden 
to sell any of the product thereof for food." 

If it be conceded that the owner may not sell the meat prod- 
ucts of cattle so quarantined, after being killed, for food pur- 
poses, and that the ^yol'd prodiict as used in the amended section 
includes the flesh and other products of the carcass, then the 
contention of the owners is correct. It may further be said 
that, if such is the construction of the law, it was not necessary 
to limit payment when quarantine extends more than ten days 
to cases where the owner is forbidden to sell the product for 
food, for then the owner would be entitled to compensation in 
all cases of quarantine after the expiration often days. If this 



374 OPINIONS OF THE ATTORNEY-GENERAL. 

were the intention of the Legislature, it could have been much 
more simply and directly expressed. 

I do not concede, however, that the law in terms forbids the 
selling of meat from cattle which have been quarantined as sus- 
pected of being affected by contagious disease. Throughout 
the statute a clear distinction is made between cattle and car- 
casses, and the provisions as to each are distinct. When cattle 
are quarantined upon the premises of the owner, they are de- 
clared by § 34 to be " deemed to be affected with a contagious 
disease." This obviously refers to the cattle while living. It 
is not possible in all cases to determine whether a living animal 
is affected with disease or not. The law therefore has provided 
for action by the Cattle Commissioners without requiring of 
them definite proof as to the existence of disease, and has fur- 
ther provided that when they are quarantined under suspicion 
they shall be deemed to be what may be termed constructively 
affected with contagious disease. Wliile so branded, the cattle 
themselves cannot be sold, nor can the milk or other food 
products which they produce while alive. 

But, although the owner is forbidden to sell an animal quar- 
antined upon his premises, or any of the food products thereof, 
he may kill it. After the animal has been slaughtered, the ex- 
istence of contagious disease can be conclusively determined. 
If, upon examination, as provided in § 21, it appears that the 
animal was not aflected with disease, he may sell the meat and 
other food products which may be obtained from the carcass. 
If, on the other hand, the examination discloses that the animal 
was diseased, its owner may not sell the meat of the carcass. 
But this prohibition does not arise from the fact of quarantine, 
but from the disease. 

It follows, therefore, that, while it is true that the owner 
may not sell animals quarantined upon his premises or the milk 
therefrom, for the reason that they are suspected of being 
affected with contagious disease, and are therefore l)y the pro- 
visions of the act deemed to be so affected, yet, if he exercises 
his right of ownership in the cattle by killing them, and it turns 
out that they had not in fact been affected with disease, he is 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 375 

not prohibited from selling the meat or other products of the 
carcass. 

The word product is used in the statute in two connections ; 
one as applied to carcasses, and the other as applied to animals. 
Section 1 7 speaks of ' ' the carcass or any of the meat or product 
of" cattle. Section 22 also forbids the slauofhterino; of cattle 
with the intent of ' ' selling the carcass or any of the meat or 
product thereof for food," without having obtained a license. 
On the other hand, in § 15 a penalty is imposed upon a person 
who sells or has in his possession with intent to sell for food 
*' any diseased animal or any product thereof, or any tainted, 
diseased, corrupted, decayed or unwholesome carcass." In 
this section, the word " product" obviously means the product 
of a living animal. The section under consideration providing 
for the quarantine of cattle is one relating not to carcasses but 
to living animals, and the obvious meaning of the word " prod- 
uct "therein is the product of such living animals, to wit, milk, 
butter, cheese, etc. 

I am of opinion, therefore, that it was the intention of the 
Legislature in the section in question to provide for the pay- 
ment of the expenses of quarantined animals by the Common- 
wealth only when animals are quarantined which are of the 
class that yield edible products while living, as, for example, 
milch cows ; and that it was not the intention of the Legislature 
to authorize the payment of such expenses in the case of animals 
no product of which while living could be sold for food purposes, 
and as to which consequently there could be no occasion for 
prohibition against such sale l)y the commissioners. 

In the foregoing opinion I have dealt with the question only 
so far as it relates to your right under the statutes, as officers 
charged with the administration thereof. Whether for any 
reason the owners have an equitable claim upon the Common- 
wealth, independent of the specific provisions of the statute, 
involves questions which it is unnecessary to consider at this 
time. 



376 OPINIONS OF THE ATTORNEY-GENERAL. 



Ballot Law, — McTammany Voting Machines. 

It is the duty of the Secretary of the Commonwealth to provide McTammany 
voting machines which are required to be furnished by him under the 
provisions of St. 1896, c. 498, § 1, containing, so far as presidential 
electors are concerned, knobs for groups of electors only, and not a 
separate knob for each candidate for presidential elector. 



1896 
September 30. 



secrefary. ^^^ havG requested my opinion upon the question whether, 

under St. 1896, c. 498, § 1, it is youv duty to provide the 
McTammany voting machines, which you are required under 
that statute to furnish to towns and cities, with separate knobs 
for each candidate for presidential elector ; or whether you may 
provide only knobs enabling the voter to vote for each group 
of electors. 

Upon a careful examination of the capacity of the McTam- 
many machine in its present form, I do not think all the require- 
ments of law relating to voting can be satisfjictorily carried 
out, whichever course is adopted. I assume it to have been 
the intention of the Legislature to sul)stitute the McTammany 
machine for the Australian ballot, preserving, however, in so 
doing, all the essential provisions of law relating to the Aus- 
tralian ballot, so far as they can be made applicable to machine 
voting. The McTammany machine as now constructed is 
provided with fifty knobs, each of which on being pressed will 
register a punch in a roll of paper. By certain devices, not 
necessary now to mention, these holes may be counted as 
votes for the persons whose names are connected with the 
knobs so pressed. There is and can be no provision in such a 
machine by which it can be used by a voter who wishes to vote 
for a candidate other than those upon the official ballot. The 
law has therefore provided (St. 1893, c. 465, § 6) that blank 
sheets of paper shall be provided for the voters, and that " any 
voter may vote on one of said blank ballots instead of on the 
machine." 

As preliminary and incidental to the main inquiry, it be- 
comes necessary to consider whether the machines can be used 
in connection with the blank ballots, so that a voter may per- 
form part of his duty upon the machine, and vote for such 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 377 

other candidates as he desires upon the blank ballots. In my 
opinion, tliis is impracticable, for the reason that, as I am in- 
formed, there is no way of preventing a voter from voting 
upon the machine for any given office, and then voting again 
for the same office upon the l)lank ballot. Even if the Ballot 
Commissioners should, under the authority given them to make 
rules, provide that no candidate upon the official ballot should 
be voted for upon the blank ballots, it would still be possible 
for a voter to vote for an official candidate upon the machine, 
and then for another independent candidate upon a blank bal- 
lot. It is true that this w^ould nullify his vote to a certain 
extent, but it would still enable him to indicate his preference 
for two candidates out of those to be voted for, which would be 
a discrimination against the other candidates, that the spirit of 
the law seems to forbid. I am of opinion, therefore, that the 
intention of the Legislature was that a voter should elect, 
before Ijeo^innino; to exercise his rio:ht of suffrajje, whether he 
would use the machine, or write his ballot upon the blanks 
provided. If any part of his voting were done upon the 
machine, he could not supplement it by voting upon a blank 
ballot. This is not only the literal meaning of the language 
above quoted, but is the only way in which double voting can 
be prevented. A voter cannot vote for the same candidate 
twice upon the machine. There is nothing in the structure of 
the machine, however, to prevent him from voting for different 
candidates for the same office. I am told, however, that, to a 
limited extent, — that is to say, where there are less than ten 
candidates who may be voted for for any given office, — double 
voting may be detected and the vote thrown out. But in the 
case of presidential electors, where the voter has the right to 
cast his ballot for fifteen, there appears to be no way of pre- 
venting the voter from voting for more than fifteen, or for all 
the electors who are on the official ballot. 

It has been suggested that knobs might be provided both for 
voting by groups, and also for each elector, so that a voter 
could either vote in groups, or make his selection among the 
various candidates. This is impracticable, however, for the 
reason that there is no way of preventing a voter from pressing 



378 OPINIONS OF THE ATTORNEY-GENERAL. 

the knob with stands for the group, thus voting for the fifteen 
electors to which he is entitled, and also pressing the kno])s for 
fifteen electors, thus voting for his electors twice. This plan, 
therefore, cannot be considered. 

If separate knobs are provided for each elector, several diffi- 
culties arise. The voter is put to great inconvenience. I am 
informed that there will be upon the official ballot five groups 
of candidates for presidential electors, being seventy-five in all. 
The voter, therefore, is called upon to select his candidates 
from seventy-five names, for which there are provided seventy- 
five knobs ; and he is thus required, if desiring to vote the 
straight ticket, to vote fifteen times. But the Legislature of 
1892 provided (St. 1892, c. 279, § 2) that "A voter who desires 
to vote for an entire group of candidates for electors shall place 
a cross mark in the square at the right of the party or political 
designation immediately above such group, and such cross mark 
shall count as a vote for all the candidates in such group." 
The plain intention of this law is to rid the voter of the annoy- 
ance of carrying in mind all the candidates for presidential 
electors, and to enable him to vote for his candidate for presi- 
dent and vice-president by a single act. Nearly all the voters 
take advantage of this law. The number of those who desire 
to separate their votes for presidential electors is almost infini- 
tesimal. Moreover, if separate knobs are provided for each 
elector, I do not understand that there is any method of pre- 
venting a voter from voting for more than fifteen electors, or of 
detecting the fact in the count of the ballots. 

On the other hand, if knobs are provided only for the sepa- 
rate groups of presidential electors, a voter who desires to 
scatter his vote for electors is driven to the necessity of using 
the blank ballots for all the votes he desires to cast. As is 
before stated, I do not think it is practicable to provide for a 
partial use of the machine by any voter. Nor does this method 
fully comply with the provisions of St. 1896, c. 498, requiring 
you to furnish a sufficient number of McTammany voting ma- 
chines to enal)le " all candidates for all offices " to be voted for 
on such machines. It is not a sul)stantial compKance with this 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 379 

provision to provide a machine which only enables a voter to 
vote for such candidates by groups, and not individually. 

I have suggested the difficulties which will arise, whichever 
form of machine you adopt. All the provisions of law can- 
not be carried into effect, and fraudulent and double voting 
eifectually guarded against, by the use of the machine as now 
constructed, under any method. It is to be borne in mind, 
however, that the Legislature desired the experiment of using 
the McTammany machines to be fairly and fully tried. The 
law is to be construed to that end rather than to the abrogation 
of its provisions. In my opinion, therefore, you will discharge 
your duty if you adopt such method as will best secure the con- 
venience of the greatest number of voters, and give to the larg- 
est number the rights and privileges which belong to them. 
If you provide knobs only for groups of electors, you best 
serve the great majority of voters, and put to the inconvenience 
of writing ballots only the comparatively small number who de- 
sire to vote other than by groups. If, on the other hand, you 
provide a separate knob for each elector, you take away from 
the vast majority of voters the privilege which belongs to them 
of voting for electors by groups, and also open the door to the 
possibility of double voting. 

It has been suggested that machines could be constructed 
which would obviate some if not all of these objections. Here, 
again, we meet with an olistacle in the fact that it would be im- 
possilile between now and election time to construct a machine 
upon a pattern which would overcome the difficulty suggested ; 
and, if McTammany voting machines are to be used at all, those 
now under consideration must be adopted. 

Upon the whole, therefore, in view of all the circumstances 
and dithculties which I have suggested, I am of the opinion 
that you will best carry out the intention of the Legislature l>y 
providing macliines containing, so far as presidential electors 
are concerned, knobs for groups of electors only, leaving to the 
voter who desires to scatter his vote the privilege of writing it 
upon the blank ballots. 



380 



OPINIONS OF THE ATTORNEY-GENERAL. 



BuLFiKCii State House, — Sub-basemext, — Boiler Room. 

The State House Construction Commission is not required by St. 1896, c. 531, 
§ 1, to provide for a sub-basement story in the so-called Bulflnch State 
House, as suggested in the report of the prior commission made to the 
Legislature April 13, 1895 ; but the construction of the said sub-basement 
storj^ is left to the discretion of the commission. 

The said commission, in reconstructing the Bulflnch State House, may make 
such use as they deem proper of the boiler room, which is part of the 
same, although it lies without the walls of the structure. 



To the 
State House 
Construction 
Commission. 

1896 
October 3. 



My opinion has been orally requested upon two matters con- 
nected with the duties of your commission. 

First. — St. 1896, c. 531, § 1, makes it the duty of your 
commission to ' ' consider and decide upon a plan for preserv- 
ing, restoring and rendering practically fireproof the so-called 
Bulfinch State House, substantially in accordance with the re- 
port and specifications of the commission appointed l)y Gov- 
ernor Greenhalge for the preservation of the Bulfinch State 
House, made to the Legislature on the thirteenth day of April, 
in the year 1895." In the report of that commission is the 
following recommendation, being the last paragraph l3ut one of 
the report, to wit : "In view of the fact that the removal of 
the mezzanine floors would reduce the availalile space of the 
building, it is perhaps not improper to suggest that the under- 
pinning of the foundation walls may readily be carried to a 
depth sufiicient to allow of a sub-basement story, which would 
afibrd ample space for storage, and leave some of the upper 
rooms now used for that purpose available for other uses." 

The question proposed by your commission is whether, in 
view of the statute above quoted, you are required to provide 
for a sub-basement story, as suggested in the report of the 
prior commission. I am of the opinion that the construction 
of a sub-basement story is left to your discretion. The essen- 
tial features of your work require you to provide a plan which 
shall (1) preserve, (2) restore and (3) render practically fire- 
proof the old State House. The construction of a sub-basement 
story is not essential to any of these results. It was suggested 
by the connnission as a convenient way of providing additional 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 381 

storage room ; Ijut was obviously not regarded hy them, as, in- 
deed, it is not, an essential feature of the reconstruction pro- 
posed. 

Second. — The commission also desire my opinion upon the 
question whether they have the right to convert a basement 
room, now used as a lioiler room, into a storage basement. 
The only doul)t in relation to this question arises from the fiict 
that the boiler room is practically outside and west of the pres- 
ent western w^all of the old State House. It is, however, a part 
of the Bulfinch State House, which you are called upon to re- 
construct. If the question were wdiether you should construct 
an independent basement outside the walls of the State House, 
it might be seriously doubted whether such an undertaking 
would l)e within the scope of your authority ; liut I see no 
reason why, as incidental to the w^ork of restoring and recon- 
structing the old State House, you may not properly make such 
use of the boiler room referred to as you deem proper, even 
though it is w^ithout the walls of the structure. It is, never- 
theless, a part of the building you are called upon to repair. 



Citizen, — Naturalization. 

One who has declared his intention of becoming a citizen of the United States, 
but has not been naturalized, is not a citizen of the United States, and 
therefore not a citizen of Massachusetts. 

I understand that the Highw^ay Commission desires my opin- to the 

Highway 

ion upon what constitutes a citizen of the State of Massachu- commission, 
setts ; particularly with reference to the case of a man who has October 8. 
declared his intention of becoming a citizen, but has not been 
naturalized. 

No man is a citizen of the United States, and, therefore, not 
a citizen of Massachusetts, until he has been naturalized. What 
are called the first papers do not amount to naturalization. 
After a man has lieen naturalized, if he is a resident in Massa- 
chusetts, he at once becomes a citizen of Massachusetts. 



382 



OPINIONS OF THE ATTORNF.Y-GENERAL. 



Gypsy Moth, — Expenses of investigating Existence of, out- 
side Limits of Commonwealth. 



To the 
Board of 
Agriculture. 

1896 
October 9. 



The Board of Agriculture may not incur the expense of sending an agent 
to anotlier State for the purpose of investigating the question of the 
existence of the gypsy moth in that State. 

I do not think a proper construction of the laws creating 
your Board and defining its duties, and the subsequent acts 
making appropriations for the work thereof, can be said to 
authorize the expense of sending an agent to another State for 
the purpose of investigating the question of the existence of 
the gypsy moth in that State. 

The duties of your Board, briefly stated, are to carry on the 
work of extermination of the insect, and prevent, so far as 
possible, its introduction and dispersion throughout the Com- 
monwealth. This does not properly include the making of 
investigations in other parts of the country. If the Legislature 
had intended to authorize such expenses, the authority would 
have been conveyed in express terms. 



Civil Service Commissioners, — Expenses of travelling out- 
side Limits of Commonwealth. 



Under the provisions of St. 1884, c. 320, § 20, the necessary travelling ex- 
penses vphich may be paid to the chief examiner appointed by the Civil 
Service Commissioners consist only of such travelling expenses as are 
incurred in performing the work of the commission within the Common- 
wealth. 

To the I have been called upon in several instances to consider the 

Civil Service /> z-n tit- • • • j 

CoinmisBioners. statutcs of the Commonwcalth relating to its commissions and 
October 9. hcads of departments, with reference to the question how far 
they authorize travelling expenses without the Commonwealth. 
In some instances such expenses are expressly provided for. 
But where the duties of such commissions are to be performed 
within the Commonwealth, and do not in terms require visits 
to other parts of the country, I am unable to say that such 
travelling expenses are properly within the scope of the statutes. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 38^ 

The expression "necessary travelling expenses," specified in 
St. 1884, c. 320, § 20, means, in my judgment, expenses 
incurred in performing the work of the commission within the 
Commonwealth. Whenever the Legislature has intended that 
its officers and servants should travel beyond the limits of the 
Commonwealth, it has given such authority in express terms. 



Pauper, — Settlement Laws, — Territorial Effect. 

The settlement laws of each State relate to the citizens of such States, and 
to the relative obligation of the municipalities on the one hand and of the 
State upon the other hand as to such citizens. 

Such laws have no extra-territorial eflect, are not binding upon any other of 
the States of the Union, and cannot be enforced by said States. 

Between different States there can be no such thing as a place of legal settle- 
ment within the contemplation of the pauper laws. 

A person having removed from another State to Massachusetts, with the in- 
tention of residing here, and having taken up his residence here, becomes 
a citizen of Massachusetts and ceases to be a citizen of the State from 
which he removed. Such a person becomes bound by the provisions of 
the settlement laws of Massachusetts, and ceases to have any settlement 
in the State from which he removed, so far as Massachusetts is con- 
cerned. 

The father of an infant pauper removed from Lubec, Me., to Boston, Mass., 
in June, 1895, with the intention of becoming a citizen of Massachusetts, 
bringing the said pauper with him, and was at the date of this opinion 
residing in said Boston. He had before removal therefrom a legal settle- 
ment in Lubec. 

A State officer of Massachusetts who should take the said pauper to Lubec for 
the purpose of having her supported by said town would violate the pro- 
visions of the Statutes of Maine, 1891, c. 1, p. 8, providing a penalty for 
bringing into a town of Maine where he has no settlement a poor, indi- 
gent or insane person, with intent to charge such town with his support. 

Your letter states that the father of the pauper in question to the 
removed from Lubec, Me., to Boston, Mass., June 2, 1895, ofin-Door 

Poor. 

and is now residing at Maverick Square, East Boston. I as- i896 
sume, although it is not stated in the letter, that this removal 
was made with the intention on his part of becoming a citizen 
of Massachusetts. 

A person being a citizen of the United States, and of any of 
the States of the Union, has the right to remove from one State 
to another, and to become a citizen of the State to which the 



October 12. 



1 



384 OPINIONS OF THE ATTORNF.Y-GENERAL. 

removal is made. Xo length of time is necessary to acquire 
such citizenship in the State to which the removal is made. As 
soon as the party in question arrived in Massachusetts, having 
formed the intention to reside here, and took up his residence 
here, he became a citizen of Massachusetts, amenable to its 
laws and entitled to their protection. 

The settlement laws of Massachusetts, as well as those of 
other States of the Union, comprise a body of rules adapted to 
determine the respective rights of the Commonwealth and its 
municipalities, and the rights of such cities and towns as to 
each other. The Commonwealth is bound to support and main- 
tain such of its citizens as fall into distress. This burden must 
be discharged by the Commonwealth, unless the person so re- 
ceiving aid has in some way provided by law acquired a settle- 
ment in one of the towns of the Commonwealth. The rules of 
settlement are arbitrary. They are not based upon contract, 
but may be changed from time to time, at the pleasure of the 
Legislature. The purpose of them, however, is to insure relief 
to every citizen of the Commonwealth, either by the Common- 
wealth or by the town or city in which the pauper has acquired 
a settlement. These rules have no extra-territorial effect. 
They are not binding upon any other of the States of the 
Union, and cannot be enforced ])y said States. On the other 
hand, the settlement laws of such other States have no binding 
force in Massachusetts. The settlement laws of each State 
relate to the citizens of such States, and to the relative obliga- 
tion of the nmnicipalities, on the one hand, and of the State, 
upon the other hand, as to such citizens. But between differ- 
ent States there can be no such thing as a place of legal settle- 
ment, witliin the contemplation of the pauper law^s. A person 
having removed from another State to Massachusetts becomes 
a citizen of Massachusetts, and ceases to be a citizen of the 
State from which he removed. He becomes bound by the pro- 
visions of the settlement laws of Massachusetts, and may cease 
to have any settlement in the State from which he removed. 

Your letter states that the person in question had before re- 
moval therefrom a legal settlement in Lubec, Me. That, how- 
ever, was a settlement which afiected his rights so long as he 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 385 

remained a citizen of Maine, and determined the relative duty 
of the State of Maine, and of the other towns in Maine, on the 
one hand, and the town of Lubec, on the other, as to his sup- 
port and the support of those dependent upon him. Such a 
settlement, however, is not a settlement within the contempla- 
tion of the Massachusetts pauper laws. It cannot be enforced 
as to a citizen of Massachusetts at the instance of this Com- 
monwealth. 

It is true the statutes of Maine provide that ' ' whenever a 
person having a proper settlement in any town in this State 
[Maine] shall hereafter live for five consecutive years without 
the limit of this State, without receiving pauper supplies from 
any source within this State, he and those who derive their 
settlement from him lose their settlement in such town, " This, 
however, does not give any rights to the Commonwealth of 
Massachusetts. It is simply a provision which relieves the 
town of Lubec as against the State of Maine from the force of 
a settlement acquired in that town, and which has been discon- 
tinued by a residence of five years elsewhere. It does not pur- 
port to, and could not, continue to give rights of settlement in 
Lubec to a citizen of Massachusetts, who before becoming such 
a citizen had been settled in Lubec. 

The principles above stated are well set forth in the case of 
Dover v. Wheeler, 51 Vt. 160. It has been suggested, how- 
ever, that the Vermont statute, upon which Dover v. WJieeler 
is decided, prohibits the bringing of paupers into the State 
of Vermont, even when settled there ; while the Maine statute 
only prohibits the bringing in of non-settled paupers. This, 
however, is not an essential distinction, for, as I have already 
stated, when the man in question removed from Lubec to 
Massachusetts, and became a citizen of Massachusetts, he ceased 
to have a settlement in Lubec, so far as the Commonwealth 
of Massachusetts is concerned. The only settlement he could 
then have had in Lubec w^as one which would be binding upon 
that towm in case he fell into distress in any other town in 
the State of Maine. It was not a settlement which compelled 
the town to receive and support him as a citizen of another 
State. 



386 OPINIONS OF THE ATTORNEY-GENERAL. 

I am of opinion, therefore, that a State officer of Massachu- 
setts who should take the pauper in question to Lubec, for 
the purpose of having her supported by the town of Lubec, 
would violate the provisions of the statutes of Maine (St. 1891, 
c. 1, p. 8), which provides that "Whoever brings into and 
leaves in a town where he has no settlement, any poor, indigent 
or insane person having no visible means of support, or hires 
or procures such person to be so brought, or aids or abets in 
so doing, knowing such person to be poor, indigent or insane, 
as aforesaid, with intent to charge such town in this State with 
the support of such person, shall l)e fined not exceeding three 
hundred dollars or imprisoned not exceeding one year." 



To the 
Lieutenant- 
Governor, act- 
ing Governor. 

1896 
October 24. 



Extradition, — Fugitive from Justice. 

An affidavit accompanying an application to the Governor for the surrender 
of an alleged fugitive from justice contained a statement that the person 
sought was a " fugitive from justice." Such a statement is a conclusion 
of law and not a statement of fact, and does not comply with the require- 
ments of Pub. Sts., c. 218, § 1, providing that such an application shall 
be accompanied by sworn evidence that the person sought to be extradited 
is a fugitive from justice. 

I have the honor to acknowledge your request for my opinion 
upon the sufficiency of the requisition papers accompanying the 
application for the surrender of E. E. Wilson, an alleged fugi- 
tive from the justice of the State of Missouri. 

Pub. Sts., c. 218, § 1, provides as follows : "The Governor 
of this State, in any case authorized by the Constitution and 
laws of the United States, may, on demand, deliver over to the 
Executive of any other State or Territory any person charged 
therein with treason, felony or other crime . . . jyy^ovided, that 
such demand ... is accompanied by sworn evidence that the 
party charged is a fugitive from justice, and l)y a duly attested 
copy of an indictment, or of a complaint made before a court 
or magistrate authorized to receive the same." 

This statute is not in contravention either of the Constitution 
of the United States or the Revised Statutes of the United 
States, § 5278, in so far as it makes provision for the evidence 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 387 

to be submitted to the Governor upon whom the application 
for extradition is made, that the person charged is, in the words 
of the Constitution, " a fugitive from justice." Both the Con- 
stitution and the United States Statutes are silent concerning 
what proof is required. It is necessary therefore, that applica- 
tions for extradition made upon Your Excellency shall be 
accompanied by sworn evidence that the party charged is a 
fugitive from justice. 

The expression "a fugitive from justice" means that a per- 
son having within a State committed that which by its laws 
constitutes a crime, when he is sought to be sul^jected to its 
criminal process to answer for this oftence has left its jurisdic- 
tion and is found within the territory of another. Roberts v. 
Reilly, 116 U. S. 80, 97. The affidavits accompanying the 
application must, therefore, establish (first) that the person 
charged was within the State when the crime was committed ; 
and (second) that since the commission of the crime he has left 
its jurisdiction, and is found within the State upon which the 
extradition is made. 

The only affidavit that refers to this fact accompanying the 
application is that of one Stanton B. Wilcock, who swears that 
the facts stated in the petition of the district attorney are true. 
The petition of the district attorney states that the " said E. E. 
Wilson is a fugitive from justice from said State of Missouri, 
and your petitioner has reason to believe, and does believe that 
the said E. E. Wilson is now in the city of Boston in the State 
of Massachusetts, a fugitive from justice." Assuming that this 
is sufficient evidence that the person sought to be extradited is 
now within the Commonwealth of Massachusetts, there is yet 
no allegation that he was ever in Missouri. The statement in 
the affidavit that he is a fugitive from justice is a conclusion of 
law and not a statement of fact, and cannot be received by Your 
Excellency as an affidavit of fact. Jones v. Leonard, 50 Iowa, 
106, The only suggestion that Wilson was ever in Missouri is 
contained in the fact that the indictment charo-es him with hav- 
ing committed a crime in Missouri on the date named therein. 
But the indictment, while to l)e taken as conclusive evidence 
that the person is charged with crime, is not " sworn evidence" 



388 OPINIONS OF THE ATTORNPLY-GENERAL. 

of any other fact, not even of the fact that he was in the place 
where the crime was committed at the time of its commis- 
sion. 

I am constrained, therefore, to advise Your Excellency that 
the requirements of our statute, which provides that there shall 
be submitted sworn evidence that the person sought to be ex- 
tradited is a fugitive from justice, to wit, that he was in the 
State maldng the application when the crime was committed, 
and has left its jurisdiction and is now in Massachusetts, are 
not complied with, and that you have no authority to surrender 
the said E. E. Wilson as a fugitive from justice. 



Australian Ballot Law, — Counting of Votes. 

The name of a candidate for Governor who was nominated as such by three 
political parties appeared three times upon the official ballot. The vote 
of any person placing a mark on the ballot against his name each time 
it appeared should be counted as one vote for said candidate, but such 
vote cannot be counted for any political party. 

8e°crmr ^^' 1^93, c. 417, § 75, providcs in substance that any po- 

1896 litical party which at the preceding annual election polled for 

Governor at least three per centum of the entire vote is entitled 

to have its nominees placed upon the official ballot. In order 
to carry out the provisions of this section it is necessary, if two 
or more parties nominate the same candidate for Governor, to 
print his name upon the official ballot as many times as he has 
been nominated by different parties, adding in each case the 
political designation of the party so making the nomination ; 
and in making return of the votes cast to include not only the 
total number of votes cast for the candidate, but the number 
cast l)y each party of which he is the nominee. 

Your letter states that George Fred Williams of Dedham has 
been nominated by three political parties as candidate for Gov- 
ernor, and that consequently his name will appear three times 
upon the official l^allot. Your letter, in view of the fact that 
there may be voters who inadvertently, and contrary to the 
instructions of the ballot, will place a mark against his name 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 389 

each time it appears, requests my opinion as to whether such 
votes should be counted and how. 

I am of the opinion tliat such votes should be counted for 
Mr. Williams as one vote, but that they must be returned as 
without political designation. 

The provisions of the statutes are designed to give every 
voter the opportunity of voting in secret, and to have his vote 
counted if he has made his intention clear. Where through his 
own fault he has left it doubtful for whom he intended to vote, 
his ballot cannot be counted. But a voter who marks the name 
of the candidate three times does not thereby obscure his inten- 
tion. On the contrary, he makes it more emphatic. No pos- 
sible room for doubt is left as to whom he intended to vote for. 
It would be a technical and unreasonable construction of the 
provisions of the ballot law that would forbid the counting of 
his vote when he had not only expressed his intention plainly, 
but reiterated it, 

A voter, however, who so duplicates his markings, obscures 
his intention as to parties. His vote can be counted but once 
to make the necessary three per centum of any party, and, as 
he has marked for more than one party, it cannot be counted 
for any part}^. His vote must be returned as one vote for 
Governor, without party designation. 



Australian Ballot Law, — Counting of Votes. 

Two political parties nominated the same candidates for president and vice- 
president, whose names headed two groups of presidential electors upon 
the official ballot. Some of the electors in each group were indentical, 
but not all. 

A voter who makes a cross in both blank spaces designated by the names of 
the said candidates is not entitled to have his vote counted as one vote 
for such electors as are indentical in the two groups, but his entire vote 
for electors must be rejected. 

My opinion is requested upon the following question, viz. : To the 
in accordance with the provisions of St. 1893, c. 417, § 163, ^"sqT^' 
the names of the presidential electors are grouped upon the ^'=^2!!!1^^' 
official ballot by parties, and each group is headed by the 



390 



OPINIONS OF THE ATTORNEY-GENERAL. 



names of the candidates for president and vice-president, for 
whom such groups of electors are expected to vote. A l)lank 
space is left at the right of the names of the candidates for 
president and vice-president ; and if a voter places a cross in 
such space, he votes for the group of electors representing the 
party whose candidates for president and vice-president stand 
opposite his cross. Two groups of electors appear upon the 
official ballot, both of whom are nominated by political parties 
whose candidates for president and vice-president are respec- 
tively Bryan and Sewall. Consequently there are two spaces, 
on the official ballot where a voter may mark for Bryan and 
Sewall, each representing a group of electors. Some of the 
electors in each group are indentical, but not all. Your ques- 
tion is, in case a voter inadvertently marks a cross in both 
places designated by the names of Bryan and Sewall, whether 
his vote for such electors as are indentical in the two groups 
can be counted as one vote for such electors. 

The statute above quoted provides that in case one cross is 
made for a group of electors as above provided, such cross shall 
count as a vote for each candidate in the group. A voter, there- 
fore, who marks in both spaces, thereby votes for thirty electors, 
less such number of electors as are indentical in both groups. 
There are three names which appear in each group. Even 
counting such a vote for two groups of electors as one vote for 
such names as are indentical, the voter has still voted for twenty- 
seven electors. He is entitled to vote for but fifteen. Follow- 
ino" the rule of construction which has uniformly prevailed as 
to the Australian l)allot, which is, that a person voting for more 
candidates than he has a right to thereby destroys his vote, one 
who has voted for twenty-seven electors when he is entitled to 
vote for l3ut fifteen has not expressed his intention with sufficient 
clearness to entitle him to have his vote counted. 

The present case difi'ers from that considered in my letter of 
the 28th,* where two or more crosses were placed against the 
name of the candidate for Governor. In that case the voter, 
notwithstanding the fact that he had made more cro.-^scs than he 
was entitled to, voted in fact but for one man, and, for the 



* See page 388, ante. 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 391 

reason stated, his vote must l)e counted. In the present case, 
however, he has expressed his preference for twelve more 
electors than he is entitled to vote for. His entire vote for 
electors must, therefore, be rejected. 



County Accounts, — Authority of County Treasurers to pay 

Bills. 

County treasurers may not legally pay any bills in excess of the amounts 
specifically authorized by law except in the cases specified in St. 1896, 
c. 357, § 2. 

Your letter of November 2 proposes the followino; questions to the 

. . ^ ^ ° ^ Controller of 

lor my opinion thereon : — county 

, . . Accounts. 

First. — Can the county treasurer pay any bills for salaries isge 

November 6. 



or expenses in excess of the amounts specifically authorized for 
the same ; and can the county commissioners transfer from un- 
expended appropriations, or from unappropriated money, to 
appropriations which have l)een exceeded, such sums as may be 
necessary to balance the same, otherwise than for such pur- 
poses as are enumerated in St. 1896, c. 357, § 2? 

Second. — Is Pub. Sts., c. 23, § 26, still in force? 

Third. — If said § 26 is still in force, can the county com- 
missioners under it make provision so as to enable the treas- 
urer to pay any bills in excess of the amounts authorized by 
Kes. 1896, c. 59? 

The purpose of St. 1896, c. 357, is plainly expressed. It 
requires annual authorization for the expenditure of money by 
the several counties, and a specification of detail of the pur- 
poses for which such expenditure is to be made. It further 
provides that ' ' no expenditure for any purpose shall be made 
in excess of the amount so specified ; and no bill in excess of 
such amount shall be paid by the county treasurer," except as 
provided in the act. 

The exceptions are contained in § 2. They relate to appro- 
priations (1) for interest or debt due from the county, (2) for 
costs in criminal prosecutions, (3) expenses of the courts, and 
(4) the compensation or salaries of county officers established 
bylaw. For various and obvious reasons the law excepts these 



392 OPINIONS OF THE ATTORNF.Y-GENERAL. 

classes of expenditures from the sfeneral provisions above stated, 
and provides that county commissioners may make payment 
for such purposes out of any money in the county treasury. 
As to some of them, to wit, the county debt, and the salaries 
of officers fixed by law, the intention of the Legislature mani- 
festly was that no limitation of appropriation should l^e allowed 
to prevent their prompt payment, for the reason that the in- 
debtedness is fixed and absolute. As to others, to wit, costs 
in criminal prosecutions, and the expenses of the courts, in 
view of the fact that the amount of such expenses might be in- 
creased lieyond the estimates of the Legislature without fault 
of the county commissioners, it was obviously deemed by the 
Legislature proper that such increase of expenses should be 
provided for. 

But no exception is made for salaries or expenses that are not 
fixed and established by law. These being within the control 
of the county commissioners, it was the intent of the law that 
as to them they should keep within their appropriation. The 
reasons for the passage of the law look to the prevention of 
precisely this class of unauthorized increased expenditures. 

I am clearly of the opinion that county treasurers may not 
pay any bill in excess of the amount authorized, excepting in 
the cases specified, as above stated, in § 2 of the act. 

In view of my opinion as above expressed, it is unnecessary 
to consider whether or how far Pub. Sts., c. 23, § 26, is 
repealed. Whether or not it is in all respects repealed by 
implication, it certainly does not operate to give county com- 
missioners power to borrow money to meet expenses in excess 
of the amounts which they are authorized by law to incur. 



State Highway Acts, — Alteration of Location of Tracks of 
Street Railway in State Highway. 

While a State highway is in process of construction, the Massachusetts High- 
way Commissiou, under St. 1896, c. 541, has exclusive jurisdiction to de- 
termine what clianges shall be made in the location and construction of a 
street railway located on such a highway. But when the highway is con- 
structed, the jurisdiction as to such changes conferred upon the town 
and municipal authorities by Pub. Sts., c. 113, revives. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 393 

The Massachusetts Highway Commission may order the tracks of a street 
railway to be moved, and pay for such removal out of the amount appro- 
priated for the construction of State highways. 

It seems that, before ordering a change in the tracks of a street railway com- 
pany, the Massachusetts Highway Commission should give notice of the 
hearing, as provided in Pub. Sts., c. 113, § 21. 

In your letter of August 21, you propose several questions ^o^*e^^ 
touchino: the iurisdiction of the commission and of cities and commission. 

. ,,, . 1S96 

towns over street railways located upon State highways. November is. 

The first question is as follows : ' ' Do the selectmen of a town 
lose their powers to direct a railway company to move its tracks 
or make any other changes, under Pub. Sts., c. 113, § 22, on 
the passage of St. 1896^0. 541?" 

In order to arrive at an understanding of the relative rights 
of the commission on the one hand, and of the officers of cities 
and towns on the other hand, over railroads upon State high- 
ways, it is necessary to consider what powers were conferred 
upon municipal authorities by the provisions of the existing 
laws before the enactment of the statutes relating to State high- 
ways. These provisions are found in Pub. Sts., c. 113, §§7, 
21 and 22. Under these sections the right of adjudication as 
to the necessity and public convenience of permitting street 
railw^ays to encumber highways is given in cities to the mayor 
and aldermen, and in towns to the selectmen. These boards 
act not as agents of the city l)ut as public officers and their 
determination is final upon questions of public convenience 
and necessity. Under § 7, it is for them as such officers to 
determine whether a location shall be granted in a public way 
to a street railway corporation. They must give a hearing to 
parties interested after due notice and they may refuse the 
location or grant it under such restrictions as they deem the 
necessity of the public requires. Under § 21, the same tril)u- 
nals may authorize an extension of the tracks of existing rail- 
way companies upon such conditions as they may deem proper, 
first giving notice as provided in § 7. They are further au- 
thorized under the provisions of § 22 to alter the location and 
position of such tracks " by the same authority and in the 
same manner as is provided in the preceding section (21) for 
the location of an extension." In all these cases the munic- 



394 OPINIONS OF THE ATTORNEY-GENERAL. 

pal 1)oards are the tribunals to whom is committed the question 
of public convenience and necessity. Their decision is final, 
and cannot be directed nor abrogated ])y the action of the city 
or town itself. 

I do not think that the jurisdiction so conferred upon the 
boards of aldermen in cities and upon the selectmen was 
intended to be taken away by the statutes authorizing the 
construction of State highways. It may be that under the pro- 
visions of St. 1893, c. 476, § 14, the consent of the commis- 
sion must be also obtained, in addition to the authority given 
by the municipal boards, before a State highway can be dug up 
for the construction of a street railway. This is confirmed by 
St. 1894, c. 497, § 2, which provides that "all openings and 
placing of structures in any such road (State highway) shall 
be done in accordance with a permit from said commission. 

The work of constructing a State highway, however, is con- 
ferred by the statutes upon the Highway Commission, and 
they alone have jurisdiction over such work. Having deter- 
mined that public necessity and convenience so require, and 
having thereupon decided that the Commonwealth should lay 
out and take charge of a given road as a State highway, the 
commission (St. 1894, c. 497, § 2) shall proceed to construct 
the way. They may contract with the city or town therefor, 
or, if the town does not desire to do the work, they may con- 
tract with other parties for its construction. The entire re- 
sponsibility of this work is vested in the commission. The 
statute referred to in your question (St. 1896, c. 541) is in- 
tended to confirm this authority, so far as relates to street rail- 
ways. It provides that "Whenever in the construction of a 
State highway it becomes necessary, in the opinion of the Mas- 
sachusetts Highway Commission, to change the location, relay 
or change the grade of that part of any street railway located 
on said highway, or to place diftereiit material between its 
tracks, or to make any other change in the location and con- 
struction of said railway," the commission may thereupon pro- 
ceed to make such change in the manner provided as above 
stated by Pub. Sts., c. 113, § 22, for boards of aldermen and 
selectmen. While the highway is in process of construction it 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 395 

is under the sole and exclusive jurisdiction of the Highway 
Commission, and it would be very inconvenient to confer the 
right of making any such necessary changes in the location, 
etc., of street railways, as the work of construction might 
require, upon another tribunal. St. 1896, c. 541, therefore, 
gives jurisdiction during such construction to the Highway 
Commission, and while the work is going on they alone have 
the right to determine what changes are to be made. This 
prevents a divided or double responsibility. But when the 
highway is constructed, the jurisdiction of the municipal board 
revives, and is to be exercised in the interest of public conven- 
ience and necessity, as provided by Pub. Sts. c. 113. 

The second question of your commission is as follows : ' ' Can 
the Highway Commission, under St. 1896, c. 541, without an 
appropriation for the purpose, order the tracks of a street rail- 
way to be moved, and pay for it out of the amount appropri- 
ated for the construction of State highways ? " 

The alterations in the location and construction of a street 
railway provided for by St. 1896, c. 541, are such as are deemed 
necessary in the course of the construction of a State highway 
under St. 1893, c. 476, and St. 1894, c. 497. The making of 
such alterations is as much a part of such construction and 
included therein as the filling or grading of a highway. The 
phrase "construction of a State highway," used in St. 1896, c. 
541, is equivalent to the phrase "construction of a State high- 
way under the provisions of St. 1893, c. 476, and St. 1894, c. 
497." There is nothing in St. 1896, c. 541, showing that the 
Legislature intended that the cost of making the necessary 
alterations provided for by said statute should be paid for in 
any other way than out of the appropriation for the construction 
of State highways. I am of opinion, therefore, that the com- 
mission may order the tracks of a street railway to be moved, 
and pay for such removal out of the amount appropriated for 
the construction of State highways. 

The third question proposed by the commission is as follows : 
" If the previous question is answered affirmatively, what are the 
steps necessary for the commission to take in order to assure 
itself of the actual cost of the construction of the road, and in 



396 



OPINIONS OF THE ATTORNEY-GENERAL. 



order to l)ring the matter into the proper channels for securing 
the future repayment of the money to the State ? " 

The commission is concerned with the question asked only 
when it is necessary by the provisions of St. 1896, c. 541, that 
the cost of making the changes provided for therein shall be 
paid by the commission. It is not concerned where the com- 
pany itself pays the expense of the changes at the time of mak- 
ing the same. If the changes are made by the railway, and the 
cost is to be paid hy the commission, as provided by St. 1896, 
c. 541, the method of payment is similar to that employed 
where th3 commission itself makes the changes. The actual 
cost of such changes is to be ascertained by the commission. 
To enable itself to do this, the commission may avail itself of 
the provisions of St. 1893, c. 476, § 1, which provides that 
the commission "may establish rules and regulations for the 
conduct of business and for carrying out the provisions of this 
act." Under this section the commission is undoubtedly entitled 
to require any evidence which is reasonable and necessary to 
enable it to assure itself of the actual cost. Furthermore, under 
the provisions of Pub. Sts., c. 16, § 65, the head of the commis- 
sion may require affidavits from claimants in proof of the validity 
of any claims presented hy them, and the commission may un- 
doubtedly require similar proofs and statements from the rail- 
way company. In either event, whether the changes are made 
by the commission or by the company, if the cost is to be paid 
by the commission it is clearly intended by the statute that the 
usual bills and statements of work done and materials furnished 
in making such changes, properly approved and sworn to if 
necessary, shall be presented to the Auditor of the Common- 
wealth, whose duty it is to ascertain the actual cost of such 
changes and certify the same to the Tax Commissioner. 

The fourth question proposed by the commission is as fol- 
lows : "Is the commission required under the law to give a 
hearing as provided in Pub. Sts., c. 113, § 22, before giving 
the order to change the tracks ? " 

St. 1896, c. 541, provides that, when the commission pro- 
poses to change the location of a street railway, it must pro- 
ceed in the manner provided by Pub. Sts., c. 113, § 22, for 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 397 

making such changes by boards of aldermen and selectmen. 
The section referred to itself authorizes the municipal board to 
proceed ' ' in the same manner as is provided in the preceding 
section for the location of an extension." On reference to the 
preceding section, it appears that before acting "at least four- 
teen days' notice of the hearing shall be given to all parties 
interested, hy publication in such newspapers as the board of 
aldermen or selectmen may determine, or otherwise." If the 
provision of St. 1896, c. 541, above quoted, requiring the 
commission to proceed in the manner provided in § 22, does 
not require notice, it is difficult to say what the provision 
means. I doubt whether the framers of the statute had any- 
thing more in mind than a general reference to the authority 
conferred by § 22 upon municipal boards, and whether it was 
intended to require notice as was provided in that section ; but 
the words of the statute seem to require your Board to proceed 
in the manner required in § 22, and I am of opinion that the 
safer course is to give notice as provided in that section. 



State Highway Acts, — Contracts for Construction of State 

Highways. 

Under the provisions of St. 1894, c. 497, § 4, the Massachusetts Highway 
Commissioa is authorized to make contracts only for the entire con- 
struction of State highways or portions thereof, and it is not authorized 
to maive separate contracts with different persons for a portion of the 
worli of such construction. 

My opinion is requested upon the following question : ' ' Can to the 
this commission, under St. 1894, c. 497, § 4, enter into con- oommission. 
tracts with outside parties or individuals for separate items that November 28 
enter into the construction of a State highway, or are we re- 
quired under the law to advertise and accept bids only for the 
complete construction of a State highway ? " 

The statute referred to in the foregoing question, after pro- 
viding that a city or town may without advertisement contract 
for the construction of so much of a highway as lies within its 
limits, further provides that, if the city or town shall not so 



398 



OPINIONS OF THE ATTORNEY-GENERAL. 



elect, the commission shall advertise "for bids for the con- 
struction of said highway under their supervision and subject 
to their approval, in accordance with plans and specifications to 
be furnished by said commission." The section further pro- 
vides that said proposals shall be open to public inspection 
after the proposals have been accepted or rejected. The com- 
mission may reject any or all of such bids; or, " if a bid is 
satisfactory they shall, with the approval of the Governor and 
Council, make a contract in writing on behalf of the Common- 
wealth for said construction, and shall require of the contractor 
a bond for at least twenty-five per cent, of the contract price, 
to indemnify any city or town in which such highway lies, 
against damage while such road is being constructed." 

These provisions seem to look to one contract for the entire 
work. There is no reference to contracts for a part of the 
work in the statute, and no such authority is conferred upon 
the commission, at least in express terms. Furthermore, the 
condition of the bond to be given by the contractor would seem 
to negative any right to contract for partial construction. The 
contractor, as above stated, must give bond to indemnify the 
city or town in whicli the highway lies against damage while 
the road is being constructed. If contracts were given to one 
person for materials, to another person for teaming and to still 
another person for the actual work of building the road, it 
might be difficult to determine which contractor, if any, would 
be liable, in case the city or town were called upon to pay 
damages for an injury growing out of the construction of the 
way. 

For the reasons above stated, I am of opinion that the in- 
tention of the Legislature was to authorize the commission to 
make contracts only for the entire construction of State high- 
ways, or of portions of State highways, and not to authorize 
them to make separate contracts with different persons for a 
portion of the work of such construction. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 399 



County Accounts, — Employment of Attorney- at-Law by County 
Commissioners as Legislative Counsel. 

The county commissioners of Norfolk County employed an attorney-at-law to 
appear for them before the joint legislative committee on counties at its 
hearing relative to the estimates of the commissioners as to the amount 
of county taxes to be levied for the year 1896 ; to prepare the statement 
of the commissioners as to the items in said estimates ; and also to appear 
for the commissioners before the legislative committee on metropolitan 
affairs. 

The county commissioners were authorized to employ an attorney-at-law at 
the expense of the county for the purposes above specified. 

The Controller of County Accounts has no authority to revise the bill of an 
attorney-at-law rendered to the county for services performed as above 
specified. 

Your letter of the 25th ultimo states that the treasurer of Jo the 

Controller of 

Norfolk County has paid by order of the county commissioners ^cc°*^tg 
the bill of an attorney-at-law for attendance before the com- isse 

mittee on county estimates, with items for three days at Dedham 

and for arranging and preparing statement, and another item for 
attendance before the metropolitan committee. You further 
state that the attorney-at-law was employed by the county 
commissioners to appear for them before the joint committee 
on counties ' ' at its hearing relative to the annual estimates of 
said commissioners as to the amount of county taxes to be 
levied for the year 1896 ; " and that this bill is "for his ser- 
vices there, and in preparing the statement of the commissioners 
as to the items of the amount of their estimates," excepting 
the last item, which was for appearance for the commissioners 
before the committee on metropolitan affairs. 

Your letter proposes the following questions : — 

1 . " Were the county commissioners authorized to employ 
said attorney at the expense of the county for the purposes so 
specified ? " 

2 . " Has the Controller of County Accounts any obligation 
or authority to consider or decide as to whether the bill is a 
reasonable or proper one as to its charges or amount for the 
services rendered ? " 

The duties of county commissioners, as far as such duties 



400 



OPINIONS OF THE ATTORNEY-GENERAL. 



concern the question now submitted, are prescribed by Pub. 
Sts., c. 22, § 20, els. 2 and 4. 

Under these statutes they are to represent the county in all 
cases which are not specially provided for, and to do such other 
acts as may be necessary to carry into effect the powers given 
the commissioners by law. They are in brief to execute the 
powers conferred upon the corporate body and more especially, 
among other things, to attend to the laying out of streets, 
assessment of betterments, erection of certain buildings, making 
contracts, conveying property, and the management of law 
suits which the county may bring or in which it may be a 
defendant. 

It is apparent that, while some of these acts may be done 
personally by the commissioners, in others they must employ 
assistance. When a conveyance of land is to be made by or 
to the county, the commissioners cannot be expected to make 
a personal examination of the title, or where a suit is brought, 
they cannot be expected to conduct it personally. Whenever 
professional services are required, it is the right and duty of 
the commissioners to secure professional assistance. 

This being so, the question is whether in the case stated pro- 
fessional assistance was required. It is not unusual for parties 
appearing before legislative committees to be represented by 
counsel. It may well be that, in the hearings for which the 
charges in the bill under consideration were rendered, the 
county commissioners in presenting their claims needed pro- 
fessional services. In the absence of any statute restricting or 
controlling their discretion, I am of opinion that, if the com- 
missioners thought that the interests of the county which they 
were charged to represent would be promoted by the employ- 
ment of counsel to assist them in presenting the claims of the 
county, they had the right so to do. 

Keplying, therefore, to your first question, I am of opinion 
that they were authorized to employ an attorney-at-law for the 
purposes specified. 

There is no law conferring upon the controller any authority 
to revise the bill under consideration. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 401 



Co-operative Bank, — Sale of Real Estate acquired by For- 
CLOSURE OF Mortgage. 

The Board of Commissioners of Savings Banks has no authority to extend the 
time within which a co-operative banls must sell real estate acquired by it. 

Your letter of December 9 requests my opinion upon the To the 

■I ^ L 1 Savings Banks 

question whether your Board has authority to extend the time coin.nisRionere 
within which a co-operative bank must sell real estate acquired Decimbc r 12. 
by it. 

Pub. Sts., c. 117, § 19, provides that a co-operative bank 
may purchase real estate upon which it has a mortgage. It 
further provides that "All real estate so acquired shall be sold 
witliin five years from the acquisition of title thereto." 

St. 1894, c. 317, § 21, cl. 9, contains a similar provision 
with relation to property mortgaged to savings banks, with the 
addition of this proviso, ^'provided, however, that tlie Board 
of Commissioners of Savings Banks may, upon the petition 
of the board of investment of any such corporation, and for 
good cause shown, grant an additional time for the sale of the 
same." 

Pub. Sts., c. 117, relating to co-operative banks, provides 
in § 20 that "The Commissioners of Savings Banks shall per- 
form in reference to every such corporation tlie same duties, and 
shall liave the same powers, as are required of or given to them 
in reference to savings banks." It is the provision last quoted, 
under which, if at all, any authority of your Board can be found 
to extend the time within which co-operative banks must sell 
mortgaged real estate which they have acquired. 

The history of the legislation upon this subject shows that it 
was not intended to confer any such authority upon your board 
as to co-operative banks. At the time of the enactment of the 
Public Statutes no additional time could be granted, even to 
savings banks, for the sale of mortgaged real estate acquired 
by them. The provisions limiting the time for liolding such 
real estate were substantially the same both as to savings banks 
and as to co-operative banks ; and without any provision for 
extension of time in either case. But by St. 1882, c. 200, § 1, 



402 



OPINIONS OF THE ATTORNEY-GENERAL. 



the time within which savings banks might sell such property 
was extended to the first day of July in the year 1883. By St. 
1883, c. 52, a further extension was made to the first day of 
July, 1884, with a proviso, which appears for the first time in 
the history of the legislation, that the Commissioners of Savings 
Banks may grant additional time, not exceeding two years, for 
the sale of such real estate. St. 1886, c. 77, further extended 
the time of sale to the first day of July, 1888, and re-enacted the 
proviso contained in the statute last quoted. St. 1894, c. 317, 
§ 21, cl. 9, which is a substantial codification of existing laws 
relating to savings banks, re-enacted the proviso giving your 
Board power to grant additional time. It clearly appears, 
therefore, that the authority given to your Board by the pro- 
viso in question was intended l)y the Legislature to be limited 
to sales by savings banks. 

I am of opinion, therefore, that your Board has no authority 
to extend the time of sale for co-operative banks. 



Metropolitan Water Act, — Commonwealth's Land, — 
Taxation. 

Certain lands lying in the towns of Boj'lston and West Boylston, purchased 
by the Metropolitan Water Board, are not liable to taxation. 



To the 
Metropolitan 
Water Board. 

1896 
December 16. 



Repl^dng to your favor of the 9th, inquiring as to whether 
certain lands purchased by your Board in West Boylston and 
Boylston are liable to taxation, I am of opinion that the ques- 
tion should be answered in the negative. 

If these lands are subject to taxation, it must be by virtue of 
some positive and express legislative enactment. They are not 
liable under Pub. Sts., c. 11, because by § 5, cl. 2, the property 
of the Commonwealth is expressly exempted, with certain ex- 
ceptions, which are not applicable in this case. The land is not 
liable to taxation under St. 1893, c. 352, § 1, which relates to 
property taken by pvirchase or otherwise by any city or town 
and situate in another city or town, and provides for certain 
payments from one to the other. The last-mentioned statute 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 403 

does not seem to be incorporated by reference by § 30 of the 
metropolitan water act (St. 1895, c. 488), providing that "All 
general laws relating to the water supplies of cities and towns 
or the lands and other property used for such supplies shall, so 
far as they are not inconsistent with the provisions of this act, 
apply to and be observed in carrying out the purposes of this 
act." Furthermore, § 16 of the same statute contains a provi- 
sion for the payment by the Commonwealth of certain sums to 
these towns (Boylston and West Boylston) at times therein 
specified, and concludes as follows : " and shall pay no tax or 
other payment to either of said towns on account of any prop- 
erty held by said water board for the purposes of a water 
supply." 

I have found no other statutes than those above mentioned 
under which it might be claimed that a tax should be levied. 
If there is any statute relating to the matter which has escaped 
my attention, I shall esteem it a favor if you will call my at- 
tention to it. 



Topographical Survey Commission, — Right to enter upon 
Private Lands. 

The agents of the Topographical Survey Commission are authorized to enter 
upon private lands in the discharge of their duties, if the entry is reason- 
ably necessary, is but temporary in its nature, and is accompanied by no 
unnecessary damage. 

I have the honor to acknowledge the receipt of your letter to the 
of December 7, requesting, among other things, my opinion sinv'y 

. ."^ TT^^i 1 1 I'll Commission. 

upon the following question : " Under the act under which this is96 
commission is now acting, have we authority to enter private 
grounds in making the survey ? " 

The first authority given to your Board was under Ees. 1884, 
c. 72, under which provision was made for a commission "to 
confer with the director or representative of the United States 
geological survey and to accept its co-operation with this Com- 
monwealth in the preparation and completion of a contour 
topographical survey and map of this Commonwealth hereby 
authorized to be made." By Res. 1885, c. 29, an appropria- 



Dcceniber 19. 



404 



OPINIONS OF THE ATTORNEY-GENERAL. 



tion was made for "the determination by triangulation of the 
boundary lines of the cities and towns in the Commonwealth," 
the work to l)e done under the direction of the commission. 
Additional appropriations have been made from time to time 
for the same purpose. By St. 1888, c. 336, the commission 
was authorized to propose changes in the boundary lines of 
contiguous towns, to locate and define the changes made, and 
to determine what monuments shall be placed for such lines. 

The performance of the duties imposed by these statutes ob- 
viously makes it necessary for the commissioners from time to 
time to enter upon private lands. No such authority is given 
in terms in any of the statutes ; but when an act of the Legis- 
lature imposes duties upon a public officer, it confers upon him 
by implication whatever authority is necessary to the perform- 
ance of such duties. 

The commission and its agents are public servants, author- 
ized by statute to make a survey and map of the Commonwealth 
and to establish boundary lines between the towns. In the 
discharge of their duties as such it niay become necessary to 
enter temporarily upon private lands. If the entry is reason-, 
ably necessary, is but temporary in its nature, and is accom- 
panied by no unnecessary damage, such an entry does not 
constitute a trespass, but is within the authority of the com- 
missioners. Winslo2v\. Gifford^ 6 Cush. 327. See also Oav- 
anagh v. Boston, 139 Mass. 426, 435 ; Brigham v. Edmands, 
7 Gray, 359, 363. 

The foregoing opinion renders it unnecessary to consider the 
other questions in your letter. 



Fire Marshal's Aids, — "Witness Fees in Crfminal Cases. 

The salaries of the aids employed by the State Fire Marshal are fixed by law, 
and they are not entitled to witness fees while attending the trial of a 
criminal case. 



To the Fire Pub. Sts., c. 199, § 36, provides that " No person employed 

1897 as a district police officer, and no officer of the State whose sal- 

january 9. ^^^^ .^ fixed by law, shall be entitled to a witness fee before any 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 405 

court or trial justice of tliis Commonwealth in a cause where the 
Commonwealth is a party." In some cases the word "officer," 
as used in the penal statutes, includes only officers authorized 
to serve process ; but, in my opinion, the section the language 
of which I have quoted gives to the word a broader significa- 
tion, and is to be construed according to the usual and obvious 
signification of the words used. 

The salaries of your aids are fixed by St. 1895, c. 452, § 1. 
They are officers of the State, because the positions are created 
by the Legislature, and their compensation is payable from the 
treasury of the Commonwealth. They are, therefore, not en- 
titled to witness fees. 



Juvenile Offenders, — Authority of Committing Magistrate. 

Under the provisions of Pub. Sts., c. 89, § 22, a court or magistrate is not 
autliorized to place juvenile offenders in the custody of the State Board 
of Lunacy and Charity except upon its request. 

Confirmino; my oral opinion to you given this day in reply to To the 

'''' ^ <. Superintendent 

the question contained in your letter of the 8th, I have to say ofin-ooor 
that in my opinion Pub. Sts., c. 89, § 22, which provides that isqt 
the court or magistrate before whom a boy or girl is brought ^'^.^^ 
"upon request of the state board, may authorize said board to 
take and indenture . . . such boy or girl," does not authorize 
such courts to place juvenile ofi:enders in the custody of the 
State Board of Lunacy and Charity except upon its request. 
The object of the statute is to authorize the Board to become 
practically guardians of such offenders whenever in its judgment 
their welfare will l)e thereby promoted. The discretion as to 
whether it shall assume such duties is vested in the first in- 
stance in the Board, and, if it does not desire to assume the 
charge of the boy or girl, the court has no right to impose the 
duty. 



406 



OPINIONS OF THE ATTORNEY-GENERAL. 



Corporation, — Agricultural Society, — Voting by Proxy. 



To the Board 
of Agriculture. 

1897 
January 16. 



At a meeting of the Hampden Agricultural Society, at which proceedings were 
held for the election of a member of the State Board of Agriculture, the 
l)alloting resulted as follows : the whole number of votes cast was 46, of 
which B had 41, F. 4 and PI. Of the votes cast for B, 39 were cast by 
proxy. 

There being no provision in the charter or by-laws of the society regulating 
the mode of voting by proxy, or conferring the right so to vote, no mem- 
ber had such right; and, since no quorum voted, the votes cast by proxy 
being thrown out, no person was duly elected by said society as a member 
of the State Board of Agriculture. 

In obedience to your request for my opinion upon the legality 
of the proceedings of the Hampden Agricultural Society in 
electing a member of the State Board of Agriculture, I beg 
leave to reply as follows : — 

Pub. Sts., c. 20, § 1, provides that certain other persons and 
' ' one person appointed from and by each agricultural society " 
shall constitute the State Board of Agriculture. 

The Hampden County Agricultural Society is one of those 
described in Pub. Sts., c. 114, § 1. Section 9 of the same act 
provides that it " shall admit as members, upon equal terms, 
citizens of every town in the county in which it is located." 

The Hampden County Agricultural Society was incorporated 
by a special act, St. 1844, c. 56. It is not a stock company, 
ajid there is no capital stock. The constitution provides in 
art. 3 that " any male may become a member of this society l)y 
paying to its treasurer the sum of five dollars ; females by the 
payment of two and fifty one-hundredths dollars." Art. 4 pro- 
vides that ten members shall constitute a quorum. Art. 5 
provides for the election of officers, and further provides as 
follows : "all of whom shall be elected by ballot or otherwise, 
as the society shall direct, at the annual meeting." There is 
no provision with regard to the mode of election of the mem- 
ber of the State Board. By-laws, art. 8, provides that the 
delegate to the State Board of Agriculture shall be a member 
ex officio of the board of directors. 

The annual meeting of this society was duly called and held 
November 18, 1896. The records do not show the number 



HOSEA M. KNOWLTON, ATT0RNEY-GENP:RAL. 407 

present. The presiding officer states that a quorum was in 
fact present. The election of president was first had, and the 
records show whole number of ballots cast 49, of which Abl)e 
had 42 and Sanford 7. At this stage of the proceeding the 
tellers reported that, of the 49 ballots cast, 39 of them were 
represented by proxies, which were placed on file. Abbe was 
declared elected. Ballot "for two vice-presidents was recorded 
as follows: whole number of votes cast, including 39 proxies, 
48; Hawkins and Wright each had 42, Porter had 5, Smith 
had 4, 2 scattering. The first two were declared elected. The 
treasurer was chosen by viva voce vote, also the secretary with- 
out opposition. Balloting for the member of the State Board 
resulted as follows : whole number of ballots cast, including 39 
j^roxies, 46; Bernie had 41, Fowler 4, William H. Porter 1. 
Bernie was declared elected. 

No protest against the use of proxies was made until the 
close of the meeting, when Mr. Clark of Wilbraham said that 
he believed the proceedings were illegal and void ; that proxies 
had never been used before to his knowledge in the election of 
officers ; and he entered his protest. 

An examination of the proxies shows that they were written 
for the most part on forms usually used for stockholders of cor- 
porations, signed and witnessed, and were made to George H. 
Gould, who voted upon them in each instance for the person 
declared elected. 

The general rule is that, in the case of elections in public 
and municipal corporations and in all other elections of a public 
nature, every vote must be personally given ; but in the case 
of moneyed corporations, instituted for private purposes, it has 
been held that the right of voting by proxy may be delegated 
by the by-laws of the institution where the charter is silent. 2 
Kent Com. 294, 295. By another eminent authority it is held 
that the members of the corporation must vote personally, and 
cannot lawfully vote by proxy unless the right to vote by proxy 
is expressly conferred by the company's charter or by-laws. 1 
Morawetz on Private Corporations, 2d ed. § 486. 

I know of no express authority on the subject in Massachu- 
setts ; but Pub. Sts., c. 105, § 5, provides that " Every corpo- 



408 OPINIONS OF THE ATTORNEY-GENERAL. 

ration may by its by-laws, where no other provision is especially 
made, determine . . . the mode of voting by proxy." In § 1 
of the same chapter it is said that "The provisions of this 
chapter, unless expressly limited in their application, shall ap- 
ply to all corporations organized under or by the laws of this 
Commonwealth. " 

The provisions of § 1 are sufficient to include such a corpo- 
ration as the Hampden Agricultural Society. It is, therefore, 
bound by the provisions of § 5 . No by-laws have been made 
which regulate the mode of voting by proxy, or which confer 
the right so to vote. In the absence of such by-law it is clear 
that under the statutes no member has the right to vote by 
proxy. This is also in accordance with the general principles 
of law as above stated. 

The person who was elected at the annual meeting of the 
society by proxy votes was, therefore, not duly chosen. 

It would seem further that no one was chosen, for if the 
proxies be thrown out, no quorum seems to have voted. 

It follows that no person was duly elected a meml:)er of the 
State Board of Agriculture. 

This opinion does not deal with the duties of the State Board 
in the premises. Upon this question diHerent considerations 
may arise, which need not be at present discussed. 



Veteran, — Honorably Discharged Soldier, — Funeral 
Expenses. 

A person who enlisted and served in the United States army in the war of 
the rebellion and was honorably discharged therefrom, enlisted again 
before the end of the war and deserted. 

He does not come within the provisions of St. 1896, c. 279, providing that 
certain persons who served in the war of the rebellion shall be buried at 
the public expense if they die without leaving sufficient means to defray 
their funeral expenses. 

To the Adjutant g^^ i^9(j^ f. 279, providcs that "any honorably discharged 
1897 soldier, sailor or marine who served in the army or navy of 

' the United States during the war of the rebellion," who dies 

without leaving sufficient means to defray his funeral expenses. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 409 

shall be buried at the public expense. This statute is one of a 
series of acts passed by the Legislature in recognition of the 
services of veterans in the war of the rebellion. Other statutes 
have provided that veterans shall be preferred in appointments 
to office. All these acts without doubt have in mind the same 
class of persons, and are based upon the same considerations. 
St. 1896, c. 517, which is an act relative to the employment 
of veterans in the public service, defines in § 1 the word "vet- 
eran" as meaning "a person who served in the army or navy 
of the United States in the time of the war of the rebellion 
and was honorably discharged therefrom." The language used 
in this definition of the word veteran is equivalent to that 
employed to designate the persons who may be buried at the 
public expense. 

The plain intent of these acts, including that in relation to 
the burial of veterans, is to recognize the debt of gratitude due 
to those who served in the army in the war of the rebellion 
faithfully and honorably, and deserved well of their country. 
Oj)ui{on of Justices, 166 Mass. 589, 595. None of them were 
intended to include those who served dishonorably, or who 
failed in the performance of their duty. The words "honor- 
ably discharged " are used to restrict the recognition accorded 
by these statutes to soldiers who performed their duty, and 
whose honorable discharge is therefore to be taken as evidence 
of that fact. 

This being so, the words "honorably discharged" can only 
fulfil the intent of the Legislature when they are taken to mean 
" (finally) honorably discharged." One who enlisted for a 
term of service and was honorably discharged therefrom, and 
who then enlisted again and deserted, was not finally honorably 
discharged, and is not within the class of persons whom the 
Leo;islature intended to recoonize and reward. He was not 
faithful to his duty. The literal meaning of the words of the 
act undoubtedly apply to his case, for he was a soldier in the 
war of the rebellion and was honorably discharged. Statutes, 
however, are not always to be construed literally, especially 
when such construction is plainly against the intent of the 
Legislature. The honorable discharge in the case put was 



410 OPINIONS OF THE ATTORNEY-GENERAL. 

before the whole term of service in the war of rebellion was 
complete. Before the completion of that entire term he failed 
in the performance of his duty, and is not, therefore, within 
the class entitled to be rewarded. 

I am of opinion, therefore, that the case you put, to wit, of 
a man who enlisted and was honorably discharged, and before 
the end of the war enlisted again and deserted, does not come 
within the provisions of St. 1896, c. 279. 



County Accounts, — Authority of County Treasurer to pay Bills 
AFTER Expiration of Year in which they were incurred. 



To the 
Controller of 
County 
AccountB. 

1897 
January 16. 



Bills for any specific county purpose incurred during a given year may be paid 
out of the appropriation for that year, whether before or after the 1st of 
January of the succeeding year. 

The question stated in your letter of January 9 is this. A 
certain sum of money is appropriated for a specific county pur- 
pose for the year 189G. Can the county treasurer, on the 
order of the county commissioners, after January 1, 1897, law- 
fully pay a bill incurred for that purpose during the year 1896 
out of the appropriation for that year ? The second question is 
the same in efl'ect, although it assumes that the books of the 
treasurer have been closed before the bill is ordered paid. 

There can be no possible doubt that bills for any specific 
county purpose incurred during a given year may be paid out 
of the appropriation made for that year, whether before or after 
the 1st of January of the succeeding year, and whether before 
or after the closing of the books of the treasurer. While the 
law limits the incurring of the expenditure to the year for 
which the appropriation is made, it does not limit the time of 
payment. If money remains in the hands of the treasurer out 
of the appropriation, he may pay the l)ill upon the order of the 
commissioners out of that appropriation whenever it comes in, 
provided the expenditure was incurred during the year of the 
appropriation. 

In view of the above, your third question does not require to 
be answered. 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL, 411 



Insurance, — Fraternal Beneficiary Corporation, — Voting by 
Proxy, — By-laws. 

The members of a fraternal beneficiary corporation may not vote at its meet- 
ings by proxy, in the absence of any by-law of the corporation to that 
effect. 

Such corporation may, however, by its by-laws determine the mode of voting 
by proxy. 

Your letter of January 20 requests my opinion as to whether, To the 

1 CI ci c ^ • Insurance 

under St. 1894, c. 367, members of a fraternal beneficiary cor- commissioner. 
poration can vote at the meetings of the corporation by proxy. January 23. 

In the absence of any by-law to that eftect, proxies cannot be 
used. But I understand from an oral interview that you further 
desire to know whether such companies may establish by-laws 
which shall provide for voting by proxy. 

I have recently considered the subject of proxy voting in an 
opinion to the Board of Agriculture.* The statutes of the 
Commonwealth clearly recognize the right of voting by proxy 
under certain conditions. As to many corporations it is either 
specifically authorized or specifically limited as to the number 
of proxies. See, as to manufacturing corporations, Pub. Sts., 
c. 106, § 27 ; as to railroad corporations. Pub. Sts., c. 112, 
§ 54; street railway corporations. Pub. Sts., c. 113, §12; as 
to banks. Pub. Sts., c. 118, §10; as to stock insurance com- 
panies, St. 1894, c. 522, § 32 ; and as to mutual companies, 
St. 1894, c. 522, §§ 40 and 74. 

There is nothing in the statute concerning the incorporation 
of fraternal beneficiary organizations (St. 1894, c. 367) which 
authorizes voting by proxy; but Pub. Sts., c. 105, " of certain 
powers, duties, and liabilities of corporations," is declared in 
§ 1 to be applicable ' ' to all corporations organized under or by 
the laws of this Commonwealth, except so far as they are in- 
consistent with other provisions of these statutes concerning 
particular classes of corporations." Section 5 of this chapter 
provides that "Every corporation may by its by-laws, where 
no other provision is specially made, determine . . . the mode 
of voting by proxy." 

* See page 406, ante. 



412 



OPINIONS OF THE ATTORNEY-GENERAL. 



Inasmuch as the provisions of this chapter are applicable to 
all corporations organized under the laws of Massachusetts, they 
must be taken to be ap})licable to fraternal beneficiary or2:an- 
izations. Such corporations may, therefore, by their by-laws 
determine the mode of voting by proxy. 



To the Harbor 
and Land Com- 
missioners. 

1897 
January 25. 



License to fill Flats, — Transfer of License, — Rights in 
Sea-shore, — Tide Waters, — History op Legislation. 

A license to fill flats in tide water, granted by the Board of Harbor and Land 
Commissioners under the provisions of Pub. Sts., c. 19, is not a personal 
trust, but the rights conferred by it pass with the property to which it 
relates, and are not terminated by the death of the licensee or the transfer 
of the property. 

Your letter of December 4 requests my opinion upon the 
following question, to wit: "When a license to fill upon flats 
in tide water within certain bounds has been granted to a per- 
son under the provisions of Pub. Sts., c. 19, does the death of 
the licensee or the transfer of the property terminate the 
license ? Would the purchaser of the land have a right to fill 
under that license, in the absence of any attempt to assign the 
license to the purchaser and an assent thereto by the Board?" 

By the common law of England the soil of the shore between 
high and low water marks, and all arms of the sea, coves and 
creeks, where the tide ebbs and flows, are the property of the 
sovereign, unless appropriated to a private person by grant or 
prescription. 

The company which undertook the settlement of Massachu- 
setts was made a body politic by the letters-patent and charter 
of Charles I., having absolute property in the land within the 
limits of the charter, the power of making laws for the govern- 
ment of the colony, and full dominion over all ports, rivers, 
creeks and havens, in as full and ample a manner as they had 
before been held hy the crown of England. 

Among the earliest acts of legislation in Massachusetts was 
an exercise of sovereignty with respect to the shore or flats of 
coves, etc., occasioned by the desire and necessity for wharves, 
(]uays and piers. To encourage the building of such struct- 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 413 

ures, the government, by the Colony ordinance of 1641-47, 
transferred its property in the shore of all creeks, coves and 
other places upon the salt water where the sea ebbs and flows 
to the proprietors of the upland, giving to them in fee the 
property of the soil to low-water mark not exceeding one hun- 
dred rods. But by this grant those who acquired this property 
were restricted from such use of it as would impair the public 
right of passing over the water in boats, and other vessels 
through any sea, creeks or coves, to other men's houses or 
lands. Under this statute the owner of flats could lawfully 
erect nothing on them which would obstruct or hinder such 
passage, though he might build wharves toward the sea, if he 
did not thereby straighten or interrupt the passage over the 
water so as to constitute a public nuisance. Shaw, C. J., in 
Oommonwealih v. Alger, 7 Cush. 77, quoting Commonwealth 
V. Oharlestoiim, 1 Pick. 180. 

This ordinance vested the property of the flats in the owners 
of the upland in fee, to be held subject to a general right of the 
public for navigation until l)uilt upon or enclosed ; and subject 
also to the reservation that it should not be built upon or en- 
closed in such manner as to impede the public right of way 
over it for boats and vessels. Shaw, C. J., ibid., p. 79. 

The rights of the owners of flats are limited by and subservi- 
ent to the general rights of the pulflic, to have control over the 
shores of the sea and navigable waters, for the security and 
protection of rights of navigation. These rights, held by the 
king before the revolution, in trust for the public, and relin- 
quished after the Declaration of Independence, vested in the 
several States, to be exercised by their respective Legislatures. 
They are founded on the consideration that all real estate 
derived from the government is subject to certain restraints for 
the general good, and that seashore estate, though held in fee 
by the riparian proprietors, is yet, on account of the peculiar 
nature and character, position and relation of the estate, and 
the great public interests associated with it, especially subject 
to the exercise of the rights of the public. Shaw, C. J., in 
Commonwealth v. Alger, 7 Cush. 95. To declare and protect 
these rights the Legislature has power by a general law affect- 



414 OPINIONS OF THE ATTORNEY-GENERAL. 

ing all riiiarian proprietors to make reasonable regulations, 
declaring the public right, and providing for its preservation 
by reasonable restraints, and to enforce these restraints by 
reasonal)le penalties. Henry v. J^eicburi/port, 149 Mass. 582, 
585; Attorney' General v. Boston <& Lowell R.R., 118 Mass. 
345, 348. 

Before the passage of the statute requiring a license to be 
procured for the filling of flats in tide waters the owner of flats 
might, unless prohibited by the Legislature, reclaim them by 
building wharves or otherwise so as to exclude navigation, pro- 
vided he did not wholly cut ofl' his neighbors' access to their 
houses or lands. Note to Commonicealth v. Roxbury, 9 Gray, 
451, 519, and cases cited; SJiively v. Boidhy, 152 IT. S. 1, 
18, e< seq. For a case where flats were so filled upon by the 
owner apparently without a license or other authority from the 
Legislature, see Henshaio v. Hunting, 1 Gray, 203 (1854) ; 
also Kean v. Stetson, 5 Pick. 492, 495. 

The first general statute abridging this right to fill upon flats, 
or erect structures on soil beneath tide waters owned by private 
persons, was St. 1866, c. 149. It is true that by an earlier stat- 
ute, Res. 1859, c. 103, it was provided that riparian owners 
desiring to use their property by extending wharves or other- 
wise might buy from the Commonwealth the right so to do ; 
but no express prohibition was placed upon filling upon flats, 
etc., without buying such right or without license. Apparently 
any ono so filling upon flats did so at his peril, and was lialjle 
to indictment if the work interfered with the means of access 
to other persons' lands. This statute of 1866 provided for the 
appointment of five persons, to constitute a Board of Harbor 
Commissioners, to have "the general care and supervision of 
all the harljors and tide waters, and of all the flats and lands 
flowed thereby, within the Commonwealth ... in order to 
prevent and remove unauthorized encroachments and causes 
. . liable to interfere with the full navigation of said har- 
bors . . . or cause any reduction of their tide waters." 

The Board was also empowered to prescribe harbor lines, — 
an authority previously granted to another commission, Res. 
1864, c. 46. By § 4 it was enacted that all persons that might 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 415 

have been or might be authorized by the Legislature to l)uild 
over tide waters any bridge, etc., or to fill upon any flats, 
should notify the Board of the plan of work they proposed to 
adopt, and no such work should be begun until the said plan 
was approved by a majority of the Board. By § 5 of the said 
statute all erections and works made after the enactment of the 
act without authority from the Legislature, or in any manner 
not sanctioned by the Board where their direction was required, 
within tide waters flowing into or through any harbor, were 
declared a public nuisance and liable to indictment. 

The obvious reasons for the enactment of this statute were 
the growth of commerce, the tendency to fill upon flats and 
erect wharves, as had been the custom, without the authority 
of the Legislature, and the necessity of protecting the waters 
of harbors. Attorney- General v. Boston S Lowell R.R., 118 
Mass. 345, 349. The right upon which the Legislature acted 
in passing the statute was undoubtedly the right mentioned 
above, viz., that of regulating the use and control of the shores 
of navigable waters for the protection of public interests de- 
pending upon free and uninterrupted opportunities for naviga- 
tion. This statute required the procuring a license from the 
Legislature for filling upon flats, whether or not such filling 
would cut ofi" other persons' access to their houses or lands. 
To require the action of the Legislature must have been felt to 
be an inconvenience which was remedied by St. 1872, c. 236, 
§ 1, referred to later. 

The next statute relating to this subject is St. 1869, c. 432, 
which prescribed certain conditions to be attached to all licenses 
thereafter granted to fill upon flats ; among others, that they 
should be revocable by the Legislature at any time, and should 
expire at the end of five years from their date, except where 
valuable structures had actually been built. 

St. 1872, c. 236, § 1, was enacted apparently to relieve the 
Legislature of the duty of granting licenses to fill upon flats, 
etc., in tide waters, and to impose such duties upon the Har- 
bor Commissioners. Section 1 of this statute provided that 
' ' Any person may build or extend a wharf, or construct a pier, 
dam, sea-wall, road, bridge or other structure, fill land or 



416 OPINIONS OF THE ATTORNF.Y-GENERAL. 

flats, or drive piles in or over tide water below high-water 
mark, within the line of riparian ownership, on any shore, and 
Avitliin whatever harbor lines there may be at the time estab- 
lished by law along such shore ; provided, the license of the 
l)oard of harbor commissioners is first obtained in a manner 
provided by the fourth section of chapter one hundred and 
forty-nine of the acts of the year eighteen hundred and sixty- 
six." The statute further provided (§ 2) for the granting 
of licenses to fill upon flats, etc., beyond the line of ripa^ 
rian ownership where harbor lines had been established, the 
license to set forth the terms and specify the limits, etc., of 
the work to be performed. The power to grant such licenses 
beyond the line of riparian ownership where no harbor line 
had been estal)lished, was also given to the said Board by St. 
1874, c. 347, subject to certain restrictions. 

The later statutes relating to this subject are St. 1877, c. 
213, chano-ino; the oroanization of the Board of Harbor Com- 
missioners, but making no change in their powers and duties ; 
St. 1879, c. 263, again changing the organization, consolidat- 
ino- the boards of Harbor and of Land Commissioners into one 
Board, to exercise the powers conferred upon each Board, and 
to be called the Board of Harl)or and Land Commissioners ; 
and St. 1878, c. 74, requiring the amount of tide water dis- 
placed by filling upon flats, etc., to be ascertained and com- 
pensation to be made. 

In the Public Statutes the acts referred to above appear as 
follows : — 

St. 1866, c. 149, § 2, defining the general powers of the 
commission, substantially corresponds to Pub. Sts., c. 19, § 6 ; 
§ 3 of said statute to Pub. Sts., c. 19, § 7 ; § 4 (first half) to 
Pub. Sts., c. 19, § 8. Pub. Sts., c. 19, § 9, is constructed 
from St. 1872, c. 236, §§ 1 and 2, and St. 1874, c. 347. 

I have thus reviewed the history of legislation respecting tide 
waters and flats between high and low water marks, for the 
reason that it has, in my judgment, an important bearing in 
the determination of the question proposed. At common law 
a license, so fiir as the word concerns real estate, is an author- 
ity to do a particular act upon land of another without acquir- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 417 

ing any estate therein, and is terminated at the death either of 
the licensor or licensee, and may not be assigned without the 
assent of the licensor. Cooh v. Stearns, 11 Mass. 533 ; John- 
son V. Carter, 16 Mass. 443 ; Haggles v. Lesure, 24 Pick. 187 ; 
Hodgkins v. Farrington, 150 Mass. 19. The statutes of 
Massachusetts, however, provide for the granting of many 
classes of licenses, as to some of which the act licensed is 
regarded as a personal trust and therefore unassignal)le, while 
as to others it has been held that the right to do the act for 
which the license is granted may be assigned without the assent 
of the authority granting the license. Examples of the first 
class are licenses to sell intoxicating liquor, and to carry on 
the business of an innholder. As to such cases, it is obvious 
that the principal thing to l)e considered in the granting of the 
license is the character of the person to whom the trust is com- 
mitted. As to these the rules of common law prevail, and 
they may not be assigned without consent. 

On the other hand, it has been held that a license to set up and 
run a stationary steam engine may be assigned at the will of the 
licensee. Quinn v. Middlesex Electric LigJd Co., 140 Mass. 
109. The opinion in the case quoted is brief, and the reasons 
of the decision reached are not given. But it is obvious that the 
reason for requiring a license for the running of a steam engine 
in thickly populated places is that those living near the place 
where the engine is established, as well as the general public, 
are concerned in the question whether the setting up and main- 
taining of a steam engine is hazardous. The license is granted 
not as a personal trust, Ijut upon consideration of the fact that 
it is deemed by the licensing authority not to be dangerous to 
the community to operate a steam engine in the locality for 
which the license is granted. 

Applying these distinctions to the question proposed, it is 
obvious that licenses to fill upon flats between high and low 
water marks belonging to that class where the principal con- 
sideration is the rights of the public, rather than the character 
of the licensee. As has already been shown by the history of 
the legislation upon the subject, the purpose of committing to 
your Board the jurisdiction of granting or refusing such licenses 



418 OPINIONS OF THE ATTORNEY-GENERAL. 

is so to regulate the filling upon flats l)y riparian proprietors 
that the rights of the public, and of adjoining riparian owners, 
may be preserved. Gray, C. J., in Attorney-General v. Bos- 
ton & Lowell R.R., 118 Mass. 345, 349 ; Attorney- General v. 
Cambridge^ 119 Mass. 518; Attorney-Generals. Woods, 108 
Mass. 436, 440. A license to fill upon flats is not granted 
upon any consideration aftecting the character of the licensee, 
or as a personal trust to him, but because your Board, upon 
consideration of all the circumstances, is of opinion that the 
acts licensed will not materially interfere with the rights of the 
public or with adjoining riparian oAvners. Such a license is in 
the nature of a regulation of the use of flats by the riparian 
owner. The statute requires that the extent of the flats to be 
filled upon must be described by metes and bounds, and that 
the method of filling must be determined upon beforehand, and 
a plan filed with the commissioners and recorded in the registry 
of deeds. The period during w^hich the acts licensed may be 
done is limited to five years, and is revocable only by the 
Leoislature. All these provisions add to the force of the 
proposition that the rights granted l>y the license have no nec- 
essary connection with the personality of the licensee, but are 
granted as appurtenant to the ownership of the soil. For 
these reasons I am of opinion that the license is not to be 
reo-arded as a personal trust, but that the rights conferred by 
it pass with the property, and are not terminated by the death 
of the licensee or by the transfer of the property. 



MuKiciPAL Indebtedness, — Authority of Town to issue New 
Notes in Substitution for Old Ones, — Exhaustion of Leg- 
islative Authority. 

The town of North Brookfield, having issued notes under the authority con- 
ferred upon it by St. 1889, c. 424, for the purpose of paying the expenses 
incurred under said statute in supplying said town with water, has no 
authority, even with the assent of the Commonwealth, the holder of the 
said notes, to issue new notes in substitution for those already existing. 

Toihe St. 1889, c. 424, is an act to supply the town of North 

'^ImT Brookfield with pure water. Section 5 of said chapter pro- 

February 11. ^j^jgg tju^t, for the purpose of paying the expenses and liabili- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 419 

ties incurred under the act, the town may issue from time to 
time notes to an amount not exceeding in the aggregate $100,- 
000. By St. 1893, c. 326, this amount is increased to $150,000. 
Said section provides for the creation of a sinking fund ; l)ut 
under § 6, instead of establishing a sinking fund the town may 
" at the time of authorizing said loan, provide for the payment 
thereof in such annual payments as will in the aggregate ex- 
tinguish the same wdthin the time prescribed in this act ; and 
wdien such vote has been passed, the amount required shall 
without further vote be assessed by the assessors of said town 
in each year thereafter until the debt incurred by said loan shall 
be extinguished." 

I understand by your letter that the town may desire to sub- 
stitute for those notes other notes, so that the annual charge 
upon the tow^n should be less ; and your letter requires my 
opinion as to whether, with the assent of the Commonwealth, 
which holds said notes, such substitution may be made. 

I am of opinion that the town has exhausted the authority to 
borrow money given it by said act. New notes cannot be issued 
without vote of the town ; and there is no authority for the town 
to vote to issue such new notes. The town having exercised the 
authority given by the act to issue its notes, it has thereupon 
become the duty of the assessors to assess the amounts due upon 
said notes each year. No diiferent arrangement can be made 
which will be binding upon the towm excepting by authority of 
the Lesrislature. 

Ordinarily, a debtor and creditor may agree between them- 
selves to postpone payment of a debt, and to sul)stitute new 
notes, or evidences of indebtedness, in place of those existing ; 
but a town can only issue its notes in pursuance of legislative 
authority. Its authority in respect to the expenses incurred 
by the introduction of pure water has been exhausted. Notes 
to the full amount of such expenses have been issued, by vote 
of the town, and the payment of them has been provided for. 
Only the Legislature, which created, has power to alter the 
situation. 



420 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Savings 
Banks Com- 
missioners. 

1897 
February 26. 



Savings Banks, — Bank Building. 

The provisions of St. 1894, c. 317, § 21, par. 8, authorizing a savings bank to 
invest five per cent, of its deposits, but not exceeding $200,000, in a suit- 
able site and building for the transaction of its business, limit the amount 
which such a banlv may spend for such purpose, but do not prohibit it 
from providing for stores, halls, business offices, etc., in the structure 
vphich it is then autliorized to erect. 

I do not think that St. 1894, c. 317, § 21, par. 8, relating 
to savings banks, which provides that "Five per cent, of the 
deposits of any such corporation, but not exceeding two hun- 
dred thousand dollars, may be invested in the purchase of a 
suitable site and the erection or preparation of a suitable build- 
ing for the convenient transaction of its business," is to be 
construed as so limiting the bank that it may not provide for 
stores, halls, business offices, etc., in the structure which it 
is authorized to erect under said statute. 

The intent of the statute is to limit the expenditure, not the 
method of occupancy. In many, if not in most cases, it would 
be better judgment to construct a building part of which could 
be rented. 



State Paupers, — Expense of Nursing in Pest House, — Re- 
imbursement TO Towns. 



To the Board 
of Lunacy and 
Charity. 
1S97 
February 26. 



A city or town should be reimbursed by the Commonwealth for all reasonable 
expenses of caring for State paupers sicli with dangerous diseases in a 
pest house, and the amount of such reimbursement is not limited by the 
proviso contained in St. 1891, c. 153, to a sum not exceeding five dollars 
per week. 

Your letter of February 9 requests my opinion as to whether 
a hospital for small-pox patients, established under the provi- 
sions of Pub. Sts., c. 80, §§ 70-83, is "a hospital maintained 
for the care of the sick," in the sense in which those words are 
used in St, 1891, c. 153. Under the provisions of the sections 
of the Public Statutes above referred to, a town may establish 
within its limits ' ' one or more hospitals for the reception of 
persons having a disease dangerous to the public health." Pro- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 421 

vision is made for the conduct and regulation of such hospitals 
in such way as to prevent the spread of small-pox or other 
dangerous disease. Section 83 provides that "All reasonable 
expenses . . . incurred by the board of health of a city or town, 
in making the provision required by law for a person infected 
with suiall-pox or other disease dangerous to public health, 
shall be paid by the person himself, if able ; otherwise ... if 
he has no settlement, by the Commonwealth." Pub. Sts., c. 
86, relating to State paupers and their removal to the State 
Almshouse, provides in § 25 that no city or town officer shall 
"send to the (State) almshouse any person infected with 
small-pox or other disease dangerous to the public health, or 
any other sick person whose health would be endangered by 
removal ; but all such persons liable to be maintained by the 
Commonwealth shall be supported during their sickness by the 
city or town in which they are taken sick." Section 26 of 
the same chapter as it stood in the Public Statutes provided 
that the expense incurred by maintaining a person under the 
provisions of § 25 should be reimbursed by the Commonwealth. 

Section 26 above referred to was amended by St. 1891, c. 
153, by the addition of the following proviso, to wit: ^'■pro- 
vided, that when any person liable to be supported by the 
Commonwealth shall have received assistance in a hospital 
maintained for the care of the sick, the entire expense incurred 
by any city or town for said hospital aid, not to exceed five 
dollars per week, shall be reimbursed to said city or town by 
the Commonwealth in the manner herein provided." 

A pest house (as a hospital maintained under Pub. Sts., c. 
80, §§ 70-83, is commonly called) is undoubtedly "a hospital 
maintained for the care of the sick." But, if it were the inten- 
tion of the proviso under consideration to modify or limit the 
provisions in Pub. Sts., c. 80, § 83, that '■'■All reasonable ex- 
penses ... incurred by the board of health in making the 
provision required by law for a person infected with small-pox " 
shall be paid by the Commonwealth, the language of the pro- 
viso is singularly ill chosen. It limits the expense of five 
dollars to cases where the person to ])e sup[)orted " shall have 
received assistance in a hospital maintained for the care of the 



422 OPINIONS OF THE ATTORNEY-GENERAL. 

sick," and authorizes the reimbursement to the city or town of 
a sum not exceeding five dollars for the " expense incurred by 
any city for said hospital aid." The plain intention of this 
proviso is that when a person afflicted with a dangerous dis- 
ease, or whose condition is such that he cannot be removed, is 
in a hospital, the city or town shall be reimbursed for the 
hospital charges incurred thereby ; but, inasmuch as hospital 
charges are often considerable, no greater sum than five dollars 
shall be allowed. The expressions in the proviso, " shall have 
received assistance in a hospital," and "incurred by any city 
or town for such hospital aid," plainly refer to hospitals not 
maintained by the city, but to public or charitable hospitals 
where a charge is made to the city or tow^n for patients placed 
therein . 

The language of the proviso is not applicable to the case of 
a pest house, where the city does not incur the expense for 
*' hospital aid," as contemplated in the proviso, but assumes the 
entire charge and expense of caring for the person infected. 
The statutes relating to the establishment of pest houses make 
special and extraordinary provisions for the care and sequestra- 
tion of persons afflicted with small-pox or other dangerous 
diseases. They are to be cared for and sequestrated under 
established regulations from possible contact with the commun- 
ity, the Commonwealth undertaking to pay the entire expense 
of such care and sequestration in the case of State paupers. 
The expense of such care and sequestration would ordinarily 
be very much more than five dollars a week ; and the mere 
cost of maintaining the pest house would be but a small portion 
of the wdiole charge for nursing and medical attendance. If 
the Legislature of 1891 had intended to limit the amount of 
such expense, apt language would have been employed for the 
purpose. The language of the proviso is not apt for that pur- 
pose ; l)ut, upon consideration of the language of the proviso 
itself, and taking it in connection w^ith the provisions of Pub. 
Sts., c. 80, it obviously refers to cases where the patient is 
committed to a hospital not maintained by a town, to ])e sup- 
ported there at the expense of the town. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 423 

This view is streno^liened by consideration of Pub. Sts., 
c. 80, § 75, under which, where diseases like the small-pox 
break out in a town, the board of health therein are ol)liged 
" immediately" to provide a hospital for the reception and care 
of persons so afflicted ; and when the condition of patients is such 
that they cannot be removed, the house in which they are to be 
sick is to be considered a "hospital," and subject to all the 
regulations prescribed for pest houses. Having thus imposed 
so extraordinary and imperative a duty upon the municipality, 
and practically required every patient to be put in a special and 
necessarily expensive hospital, and having declared that all ex- 
penses of providing for such cases shall be borne by the Com- 
monwealth, in case of State paupers, it is unreasonable to 
suppose that, by the proviso above quoted, it was intended to 
relieve the Commonwealth of a great portion of the expenses 
so directed to be incurred. 

I am of opinion, therefore, that a city or town is to be reim- 
bursed for all the reasonable expenses of caring for persons 
sick with dangerous diseases in a pest house, and is not limited 
by the proviso of St. 1891, c. 153, to an amount not exceeding 
five dollars per week. 

Insurance Company of Foreign Country, — Best Evidence of 
Authority of Resident Manager, — Power to make Annual 
Statement. 

An attested copy of a document executed by an insurance company of a 
foreign country, appointing a resident manager in tliis country, is not 
tiie best evidence of such appointment, and in court proceedings would 
be subject to the limitations relating to the use of secondary evidence. 

A duplicate of a document executed by an insurance company of a foreign 
country, appointing a resident manager in this country, is not a copy, 
but an original document, and may properly be received by the Insurance 
Commissioner as evidence of the authority of the person named therein. 

In proving by documentary evidence alone the appointment of a resident 
manager in this country by an insurance company of a foreign country, 
acting through an executive officer, upon whom authority to make such 
appointment was conferred by vote of the directors, such vote shall be 
proved by producing the books of the company containing the record 
thereof, and an attested copy of the record of such vote would be subject 
to the limitations relating to the use of secondary evidence. 



424 



OPINIONS OF THE ATTORNEY-GENERAL. 



Under the powers conferred upon the resident manager in this country of the 
London Assurance by a certain power of attorney, he has power to make 
the annual statement to the insurance department required by St. 1894, 
c. 522, § 96. 



To the 

Insurance 

Commi^Bioner. 

1897 
Febniary 26, 



I have your letter of February 1, requesting my opinion 
upon four questions relating to a power of attorney executed 
by the London Assurance, conferring upon one William W. 
Travell authority to carry on and manage a branch office of the 
said corporation in New York for the purpose of transacting 
the business of marine insurance. The first question asked is, 
whether an attested copy of this document should he received 
by the insurance department as evidence for its own use and 
for possible use in the courts that Mr. Travell was duly ap- 
pointed United States manager for the company. 

So far as concerns the question of what your department shall 
regard as sufficient evidence of the authority of Mr. Travell, 
it is of no consequence whether the original or a copy is depos- 
ited in your office. Mere inspection of the document may be 
sufficient, if thereby you are satisfied with his authority. But 
the question of what proof you may require in case his agency 
be put in issue in court proceedings, should such be instituted 
against him or the corporation, is a more serious one. 

A copy of the paper, however attested, would not be such 
evidence. Where a power of attorney is contained in a docu- 
ment the instrument itself is the best evidence of that power. 
To prove the contents of such an instrument in a court of law 
it would in most instances be necessary to produce it before the 
court. In certain cases, however, such proof might be had by 
secondary evidence, as by a copy, but these cases are limited 
in number and clearly defined. They are : (1) when the orig- 
inal writing is destroyed or lost; (2) when its production is 
physically impossible, or when at least highly inconvenient, as 
in the case of inscriptions on walls, surveyors' marks, etc., 
documents deposited in a foreign country the laws of which do 
not permit their removal, and records of a judicial court, or 
entries in any other public books or registers; (3) when the 
document is in the possession of the adverse party, who re- 
fuses, after notice, or in some cases without notice, to produce 



HOSEA M. KNOAYLTON, ATTORNEY-GENERAL. 425 

it ; (4) when it is in the hands of a third party who is not 
compellable by law to produce it, and, being called as a witness 
with a subpoena duces tecum, relies upon his right to withhold 
it ; ( 5 ) when the law raises a strong presumption in favor of 
the existence of the document, — e. g., the appointment of a 
person to a public office may be proved by showing that he has 
acted in fact in such a capacity, without showing the written 
appointment: (6) when the papers are voluminous, and it is 
only necessary to prove their general results ; (7) when the 
question arises u})on the examination of a witness on the voire 
dire, an almost obsolete process. Taylor on Evidence, § 428. 

Before such secondary evidence is admitted, the foundation 
for introducing it must be laid by showing facts sufficient to 
bring the case within the exceptions above stated. 

The question asked must be decided by the rules of common 
law. There are many statutes of this Commonwealth making 
what would otherwise be secondary evidence admissible equally 
with the original of which they are copies. Pub. Sts., c. 106, § 
22, — certificates of incorporation ; Pub, Sts., c. 169, § 70, — 
books, papers, etc., in the departments of the Commonwealth; 
Pub. Sts., c. 73, § 3, — power creating a resident agent of a 
foreign express company to receive service of process ; St. 
1894, c. 522, § 78, — instrument appointing the Insurance 
Commissioner attorney to receive service of process for foreign 
insurance companies. But there is no statute making admissi- 
ble a copy of a power executed by a foreign insurance company 
to its resident manager. 

The use of an attested copy of this document in court pro- 
ceedings would be subject to the limitations named above. It 
is not the best evidence of the facts to be proved. 

The second question is, whether a duplicate of this document 
from the home office of the company would be a proper paper 
for the Insurance Commissioner to receive as evidence of the 
authority of Mr. Travell to act as manager. 

A duplicate would not be a copy, but another original docu- 
ment, containing the original evidence of the action of the com- 
pany, and it would have all the efficacy of the original now in 
your possession. 



426 OPINIONS OF THE ATTORNEY-GENERAL. 

The third question is, would an attested copy of the records of 
the company, whereby the directors give authority to an execu- 
tive officer or some other person to appoint a United States 
manager, be a necessary document to complete the evidence? 

If the fact of the appointment by the company of a United 
States manager is desired to be proved by documentary evi- 
dence alone, it would be necessary to show that any executive 
officer purporting to make the appointment had power so to do, 
either under the charter and by-laws of the company, or by 
special authority conferred upon him by the board of directors, 
who are presumed to have the usual powers of directors to 
attend to the active management of the company's affairs. But 
it would often be more convenient to prove the fact of appoint- 
ment by showing the exercise of the powers and authority of 
such office openly, with the consent of the company. If docu- 
mentary evidence were relied on, the actual record of any vote 
of the directors empowering an executive officer to appoint a 
United States manager would be required to be shown by pro- 
ducing the books of the company. An attested copy of the 
records of the company would be secondary evidence of their 
contents, and as such would be subject to the limitations men- 
tioned above, if it were desired to be used in court. 

The last question asked is, whether, under the powers con- 
ferred upon the manager as evidenced by the document above 
referred to, he has authority to collect and collate returns for 
the annual statement of the United States branch of the com- 
pany to the insurance department, and to make oath to the same. 

The annual statement referred to is that required to be made 
under the provisions of St. 1894, c. 522, § 96, for the purpose 
of exhibiting its financial condition. The said section provides 
that " The annual statement of a company of a foreign country 
shall embrace only its business and condition in the United States, 
and shall be subscribed and sworn to by its resident manager or 
principal representative in charge of its American business." 

The document referred to above, after reciting that the Lon- 
don Assurance have appointed William AV. Travell "to be their 
manaser or ijeneral aijent for the transaction of the business of 
marine insurance in the State of New York, and have author- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 427 

ized him to appoint such other agents for the said corporation 
in the State of New York as he may deem necessary for the 
purpose of transacting the business of marine insurance in the 
said State, and . . . the said corporation are desirous of con- 
ferring on the said . . . Travell special and further powers," 
proceeds to authorize the said Travell "to institute, carry on, 
and manage in New York a branch office of the said corporation 
to carry on the business of a marine insurance . . . and for 
the purposes aforesaid in the name of and on behalf of the said 
corporation . . . ," in conformity with directions to do any 
or all of certain specified acts. These powers are such as are 
necessary to carry on the business of marine insurance at the 
company's branch office in New York. In the fifth clause the 
language used is as follows : "for any of the purposes aforesaid, 
to sign, or sign, seal and deliver any deeds and instruments, 
and to do any other acts whatsoever which may be necessarj^ or 
proper in reference thereto." The filing of the annual state- 
ment of the company with the insurance department is an im- 
portant part of its business. If this duty is neglected, the 
transaction of any new business by the company is declared 
unlawful (St. 1894, c. 522, § 96) ; and the authority of such 
company may be revoked (§ 82) . It is clear that the document 
referred to was intended to give power broad enough to enable 
the United States business of the company to be managed by 
the said Travell. I am of opinion, therefore, that he has power, 
under the document, to make the return referred to. 



High School, — Powers Institute of Bernardston, — Constitu- 
tional Law. 

The Powers Institute in the town of Bernardston is a school conducted 
according to law under the order and superintendence of the authorities 
of said town within the meaning of the eighteenth amendment of the 
Constitution of the Commonwealth, and may be approved by the State 
Board of Education as a high school under the provisions of St. 1895, c. 
212, providing for the repayment to towns by the Commonwealth of the 
expenses for the tuition of scholars attending therein. 

The questions stated in your communications of March 1 and of Education. 



4 relate to the authority of your Board to approve the Powers 



1897 
March 8. 



428 OPINIONS OF THE ATTORNEY-GENERAL. 

Institute in Bernardston as a high school, within the meaning 
of that term as used in St. 1895, c. 212, § 2. By St. 1894, 
c. 436, a town in which no high school is maintained shall, 
under certain conditions, pay the tuition of children living in 
that town and attending the high school of another town or city. 
By St. 1895, c. 212, when the valuation of such town does not 
exceed $500,000, the expenses of such tuition shall be repaid 
from the treasury of the Commonwealth, provided (in § 2) 
that such repayment shall not be made excepting when such 
high school shall have been approved by the State Board of 
Education. 

I had the honor to advise the Senate, in an opinion trans- 
mitted March 18, 1896,* that it would be unconstitutional for 
a town to pay the tuition of children living in a town and 
attending a private academy, either in the same or any other 
town, for the reason that such payment would be in violation 
of the provisions of the eighteenth amendment of the Constitu- 
tion. I understand your question to be whether the Powers 
Institute is such a private institution, or whether it is "con- 
ducted according to law, under the order and superintendence 
of the authorities of the town." If the latter, then it is such a 
school as may be approved by the Board of Education, and one 
to which children may be sent by towns having no high school, 
at the expense of the town. 

For convenience of reference I quote the article of the Con- 
stitution in question (Art. XVIII. of the Amendments) : " All 
moneys raised by taxation in the towns and cities for the 
support of public schools, and all moneys which may l)e appro- 
priated 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 moneys shall never be 
appropriated to any religious sect for the maintenance, exclu- 
sively, of its own school." 

The spirit of this amendment is undoubtedly to be drawn from 
the copcluding sentence. It was the intention of the constitu- 

* See page 319, ante. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 429 

tional convention to prevent the appropriation of public moneys 
to the support, directly or indirectly, of sectarian schools, and 
to require that schools supported l)y taxation should be under 
the control of the authorities of the town. It is not of the 
essence of the constitutional provision that such schools shall 
be in all respects identical in name or management with the 
different grades of public schools estaljlished by law\ 

Upon the facts submitted to me, the Powers Institute, 
although nominally an academy, and founded and largely sup- 
ported by private charitalile bequests, is, nevertheless, for all 
purposes in fact a town school. By the wdll of Mr. Powers 
the bequest wdiich founded the school was given to the town of 
Bernardston "to maintain and support a grammar or high 
school." The legacy was accepted by the town by vote. The 
money was paid to the authorities of the town, and a part of it 
was expended for a school building. The organization of the 
academy was created by vote of the town. It provided for a 
board of trustees to be elected by the inhabitants of the town, 
and who were required to make annual report to the town. 
Under the original vote of the town it was provided that a 
minority of the trustees should be chosen from the inhabitants 
of adjoining towns ; although as I am informed, no trustees 
have in fact been chosen excepting inhabitants of Bernardston. 
Whether this fact would be important or not is not now of 
consequence, as I am informed by your second letter that a 
vote has been passed providing that the trustees shall all be 
chosen from the inliabitants of Bernardston. I am of opinion, 
upon these facts, that the Powers Institute is a school "con- 
ducted according to law, under the order and superintendence 
of the authorities of the town" of Bernardston, and as such is 
a high school within the meaning of the statutes relating to the 
payment of tuition by towns for scholars attending therein. 



430 OPINIONS OF THE ATTORNEY-GENERAL. 



Use of Public Property for Sectarian Religious Purposes, — 
Effect of Proposed Amendment to the Constitution. 

The proposed article of amendment to the Constitution, set forth in House 
Doc. No. 428 of 1897, prohibiting sectarian legislation and the support of 
sectarian institutions from public funds, would prevent cities or towns 
from allowing a school-house or school-houses therein to be used from 
time to time for the purpose of religious worship by religious sects or 
denominations, even if the permission to use the same for the said pur- 
pose were granted without discrimination to the various different relig- 
ious denominations and sects applying therefor. 

To the House I have the honor to acknowledge the receipt of a coi^y of an 

or Repreeenta- •- ^ ^ "^ 

tivea. order of the House of Representatives, adopted March 11, re- 

Aprii2. questing the opinion of the Attorney-General in writing upon 

the question ' ' whether the proposed article of amendment to 
the Constitution, set forth in House Document number four 
hundred and twenty-eight of the present session, would pre- 
vent cities or towns, or the authorities of cities or towns, from 
allowing a school-house or school-houses therein to be used 
from time to time for the purposes of religious worship, pro- 
vided the permission to use the same for said purpose were 
granted without discrimination to the various different religious 
denominations and sects applying therefor." 

Although the question submitted, in terms, relates to the use 
of a school-house " for purposes of religious worship," I assume 
it is intended to be limited to the right of such use l)y religious 
denominations and sects. I do not understand that I am called 
upon to consider whether the use of a school-house for religious 
worship not conducted or controlled by any religious denomi- 
nation or sect would be forbidden by the proposed amendment, 
but whether the amendment prohibits the use of public prop- 
erty for sectarian religious purposes, even when such use is 
granted indiscriminately to all sects and denominations apply- 
ing therefor. 

The plain purpose of the proposed amendment is to prevent 
the use of public property for sectarian religious purposes. 
Rejecting words which have no reference to the question sub- 
mitted, the proposed amendment provides, specifically, that no 
city or town shall authorize its property to be used for the pur- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 431 

pose of aiding in any manner any chvirch, religious denomi- 
nation or religious society which is under sectarian control. 
This language is broad enough to include the use of a public 
building as a place of worship by a religious sect. Such a use 
would be aidino; a relio;ious oro;anization for religious services, 
for a church society or organization cannot well be conducted 
without a place provided for such a purpose. To provide a 
place of worship for a religious sect is to aid it materially. 

The question submitted supposes a case where public prop- 
erty is granted without discrimination to the various different 
religious denominations and sects applying therefor. The 
proposed amendment, however, is not directed against discrim- 
ination in favor of one sect as against any particular sect, but 
is intended to prevent any sectarian religious use whatever of 
pul)lic property. The use of such property by all sects who 
apply therefor would be as clearly in violation of the spirit of 
the amendment as would be the exclusive use by any particular 
sect. 

Replying, therefore, specifically to the question submitted as 
I understand it to be intended, I am of opinion that the pro- 
posed article of amendment would prevent cities or towns from 
allowing a school-house or school-houses therein to be used from 
time to time for the purpose of religious worship by religious 
sects or denominations, even if the permission to use the same 
for said purpose were granted without discrimination to the 
various different religious denominations and sects applying 
therefor. 



Insurance, — Fire Company, — Explosion. 

A fire insurance company may not add to its policies a slip or rider containing 
an agreement that in consideration of the payment of an additional pre- 
mium the policies shall cover loss or damage by explosion to the property 
thereby insured, whether fire ensues or not. 

Your letter of March 15 submits the following question. Tothe 

_, . . . . Til Insurance 

Certain insurance companies are proceeding to add to the commiesioner. 

1897 

standard form of policy provided by the Massachusetts statutes ^p^i 3. 
a slip or rider, a copy of which is contained in your letter, by 



432 OPINIONS OF THE ATTORNEY-GENERAL. 

which it is agreed in siil)stance that in consideration of an addi- 
tional })rcniium the poUcy shall cover "loss or damage by ex- 
plosion to the property hereby insured, whether fire ensues or 
not ; " may such a slip or rider be lawfully attached to such fire 
policies ? 

The Massachusetts insurance act (St. 1894, c. 522) provides 
in § 60 that "No fire insurance companies shall issue fire in- 
surance policies on property in this Commonwealth, other than 
those of the standard form herein set forth," except in certain 
cases stated in the seven following clauses. Of these, cl. 7 
provides that "A company may write upon the margin or across 
the face of a policy, or write or print in type not smaller than 
long primer, upon separate slips or riders to be attached thereto, 
provisions adding to or modifying those contained m the stand- 
ard form ..." 

It is apparent that these regulations are meant to control 
merely the form of the contract of fire insurance, not the sub- 
stance, and to protect the public from becoming bound by 
stipulations in these contracts difficult to discover, in the ab- 
sence of such regulations, except by careful examination, and 
the existence of which would often escape detection. Such 
stipulations, if inserted in the contract of insurance in the man- 
ner provided by cl. 7, above quoted, would at once attract the 
attention of persons desiring to take out policies. It cannot 
be said, however, that § 60, above quoted, was intended to 
limit or define the contracts which fire insurance companies 
may make, or to prescribe that no terms inconsistent with 
those contained in the standard form of policy should be incor- 
porated in contracts of insurance made by such companies. If 
this were the meaning of the section, it would be impossible to 
give any effect to cl. 7, allowing additions or modifications to 
be made to the provisions contained in the standard form. 
Whatever limitations fire insurance companies are subject to, 
so far as concerns the kind of business in which they are allowed 
to engage and the substance of the contracts which they make, 
must arise from the terms of their charters and the provisions 
of the statutes. Notwithstanding the fact, therefore, that the 
standard form of policy contains the clause that the amount 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 433 

insured against is " not to include loss or damage caused by- 
explosions of any kind unless fire ensues, and then to include 
that caused by fire only," this fact is not to be taken as deter- 
mining the present question, although it may have some bear- 
ing upon it. 

St. 1894, c. 522, § 3, as amended by St. 1897, c. 66, provides 
that ' ' it shall be unlawful for any company to make any con- 
tract of insurance upon or concerning any property ... in 
this Commonwealth, or with any resident thereof, or for any 
person as insurance agent or insurance broker to make, nego- 
tiate, solicit, or in any manner aid in the transaction of such 
insurance, unless and except as authorized under the provisions 
of this act ..." 

It is furthermore provided by St. 1894, c. 522, § 29, which 
as finally amended appears in St. 1896, 447, § 1, that insurance 
companies may be formed as provided in the following section 
for any one of certain purposes enumerated in the nine follow- 
ing clauses. Of these, the first reads as follows: "To insure 
against loss or damage to property by fire, lightning, or tempest 
on land, upon the stock or mutual plan." St. 1894, c. 522, 
§ 30, prescribes the procedure for organizing such a corpora- 
tion ; and § 31 of the same chapter, as finally amended by St. 
1896, c. 447, § 2, provides that "No corporation so formed 
shall transact any other business than that specified in its char- 
ter and articles of association." 

The slip or rider in question purports to incorporate into a 
contract of fire insurance a clause insuring property against 
"loss or damage by explosion, . . . whether fire ensues or 
not." It is nowhere provided in the statutes of this Common- 
wealth that such a contract of insurance may be made. Loss 
or damage caused by explosion of steam boilers may l^e insured 
against (St. 1896, c. 447) ; also loss caused by accident other 
than by fire to apparatus used for extinguishing fires, among 
which causes of damage explosion might and probably would be 
included. But insurance companies can be organized only for 
any one of certain purposes defined by law ; they cannot com- 
bine the business of several kinds of insurance. St. 1896, c. 
447, § 1. It is clear, therefore, that a fire insurance company 



434 OPINIONS OF THE ATTORNEY-GENERAL. 

must confine itself strictly to the business purposes set forth in 
its charter, viz., insurance against loss or damage hy fire, and 
may not go outside of this limit in issuing its policies insuring 
against loss by explosion without violating the provisions of 
St. 1894, c. 522, § 31, as amended by St. 1896, c. 447, § 2. 
I am of opinion, therefore, that fire insurance companies may 
not add to their policies slips like that above mentioned. 



Savings Banks, —Authorized Investments, — First Mortgage of 
Real Estate, — Bonds secured by Mortgage. 

A savings bank may not purchase bonds which are a portion of a larger num- 
ber secured by a first mortgage of real estate executed by the obligor to a 
third person as trustee for the benefit of bondholders. 

Banks com°^^ Your letter of March 17 submits the following question, to 
""1897°°^'^" ^^^^ • " ^^® owners of a tract of land with buildings thereon in 
April 8 . Boston, proposc to mortgage the premises to a trust company 

as trustee to secure an issue of bonds made by the owners of 
the property amounting in the whole to less than 60 per cent, 
of the value of the property. Is it lawful for a savings bank 
to invest in some of these bonds ? " 

St. 1894, c. 317, § 21, provides that "Deposits and the in- 
come derived therefrom shall be invested only as follows : 
First. On first mortgages of real estate, situated in this Com- 
monwealth, to an amount not to exceed sixty per cent, of the 
valuation of such real estate." The question submitted, there- 
fore, is, whether the purchase by a savings bank of bonds which 
are secured by a first mortgage of real estate of the obligor, 
executed to a trust company as trustee for the security of the 
bondholders, is a loan "on a first mortgage of real estate," 
within the meaning of the section quoted. 

The restrictions as to the investments of savings bank de- 
posits, so far as they relate to mortgage loans, were first en- 
acted in the form in which they now appear in St. 1876, c. 203, 
when mortgages of real estate to trustees to secure bonds issued 
by the owners thereof were comparatively unknown. It is very 
probable that the question of investments by savings banks in 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 435 

such bonds was not considered by the Legislature at that time. 
It does not follow, however, even if such investments were not 
known when the law was enacted, that its language may not be 
broad enough to include loans of the character in question. It 
not infrequently happens that statutes enacted in view of exist- 
ing facts are found to be comprehensive of new conditions as 
they arise in the growth of business. The question submitted 
by your letter, therefore, requires me to consider whether a 
form of investment which may be assumed not to have been 
within the contemplation of the Legislature when the provisions 
now in force were enacted, is included within the intent and 
meaning of such provisions. The question is one of impor- 
tance, for the increase in the number of great business enter- 
prises has made it frequently necessary to resort to the form of 
bonds in question for the purpose of negotiating large loans. 
Many enterprises require the use of more capital than can be 
suppHed by any one individual or corporation, and by making 
a mortgage to a trustee to secure bonds, and then selling the 
bonds indiscriminately, larger loans can be floated than would be 
practicable under a mortgage made directly to the person loan- 
ing the money. 

I am of opinion, however, that the purchase of bonds by a 
savings bank, which are a portion of a larger number secured 
by a mortgage given by the obligor to a tliird person as trustee 
for the benefit of bondholders, is not a "loan upon mortgage," 
within the meaning of the statutes relating to savinas banks. 
Those statutes deal with various classes of loans, and the 
language employed is that used by business men in commercial 
transactions. In certain cases loans may be made upon bonds 
or notes not secured by a mortgage ; upon mortgage l)onds ; 
upon notes secured by collateral ; upon personal notes ; and 
upon mortgages of real estate. A bond of the character in 
question would not ordinarily be termed a mortgage, but a 
bond ; and the holder thereof would not be a mortagee, but a 
bondholder. It is in this sense that the language of the section 
quoted is to be taken. "Loans upon first mortgages of real 
estate," as that expression is used in the statute, are loans 
made to an individual or a corporation upon the security of a 



436 OPINIONS OF THE ATTORNEY-GENERAL. 

mortgage given ])y the borrower to the savings bank. Certain 
rights attach to the holder of a mortgage which do not apper- 
tain to the holder of a bond secured by a mortgage in the 
hands of a trustee. It was in my opinion, the intention of the 
statute to authorize savings banks to loan upon mortgages only 
when the full and unrestricted ris^hts of mortg'ao'ees are con- 
ferred upon the bank, to the end that the entire control and 
custody should be in the hands of the bank. 

But in the case of the purchase of bonds this would not be 
so. For example, in the particular instance upon which the 
question arises, in which a copy of the mortgage and declara- 
tion of trust have been sul^mitted to me, the trustee has the 
discretion to foreclose or not, as he deems best. A bondholder 
cannot act except in concert with a certain percentage of the 
bondholders. The trustee, before foreclosing, may require 
reasonable indemnity from the bondholders. The trustee has 
a prior lien upon the property for his charges, and may act by 
agents and shall not be held responsible for the negligence or 
wrong-doing of such as may he selected with due care. It is 
further provided that where doubts arise as to the authority of 
the trustee the holders of a majority of the outstanding bonds 
may instruct the trustee. 

These provisions and limitations are certainly not equivalent 
to the absolute control conferred by a mortgage upon a mort- 
gagee. The holders of bonds so secured, as was stated by Mr. 
Justice Morton in Knight v. Boston, 159 Mass. 551, 555, 
*' cannot release, assign, or foreclose the mortgage, nor do any 
of the other things that mortgagees may do. They are bond- 
holders, and not mortgagees. The bonds do not constitute a 
loan on mortgage by the petitioners in the ordinary acceptation 
of those words." The quotation, it is true, is from a dissent- 
ing opinion, but the majority opinion in the case proceeds upon 
grounds which clearly distinguish it from the present question, 
and to which I will hereafter call attention. 

The savings bank statute looks to the absolute protection of 
depositors in savings banks, and doubts as to the meaning of 
the language used are, when practicable, to be resolved in favor 
of the depositors. When a savings bank loans money and 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 437 

takes a mortgage, it has the right of release, assignment and 
foreclosure, limited only by the conditions of the mortgage. It 
may also purchase the property at the foreclosure sale, St. 
1894, c. 317, § 21, cl. 9. It has immediate, absolute, and 
practically unlimited, right of action whenever necessary to 
protect its interests. It was this form of loan in which the 
Legislature intended savings banks might invest sixty per cent, 
of the money of their depositors. The purchase of a bond, 
although secured by a mortgage of real estate, the holding of 
which gives only an equitable interest in the mortgage, and 
the right only upon certain conditions to call upon the mort- 
gagee to act for the protection of the bondholders, is not an 
equivalent security, as matter of law, nor necessarily so in fact. 
In my opinion, it is not within the intent and scope of the pro- 
vision in question. 

I am aware that in the case of Knight v. Boston, above cited, 
it was held by a majority of the court that for the purposes of 
taxation such l:)onds were to be regarded as loans upon mort- 
gage, and consequently to be exempt from taxation. This 
decision, however, proceeds upon the ground that the statutes 
exempting loans upon mortgages from taxation were enacted 
for the purpose of preventing double taxation. As the law 
stood before the exemption was made, the real estate was taxed 
to the owner, and the mortgage loan to the mortgagee. The 
result of this was that in many cases the same property was 
twice taxed. It was for this reason that loans upon mortgages 
were by statute exempted from taxation. The reason of this 
exemption, however, would apply with equal force to loans 
made upon bonds secured by a mortgage to a trustee. 

The decision, therefore, cannot be regarded as authority, for 
the contention that for the purposes of investment of deposits 
by savings banks such bonds are to be regarded as loans upon 
mortgage of real estate. On the contrary, as I have attempted 
to show, the purpose of the limitations provided for savings 
bank investments clearly point to the opposite conclusion. 

Whether, as is suggested in the able brief submitted by 
counsel upon the subject, the bonds in question would be a 
safe and prudent investment for savings banks, and would have 



438 OPINIONS OF THE ATTORNEY-GENERAL. 

practically all the safeguards which attach to mortgage loans, is 
for the consideration of the Legislature rather than for your 
Board. If, as is stated, such forms of loans are becoming more 
frequent, and are a desiral)le investment for savings banks, it 
may be that the Legislature will authorize savings banks to 
purchase them. But the question I am called upon to consider 
is whether they are included within the plain meaning and intent 
of the statutes now in force. For the reasons above stated I am 
of opinion that they are not. 



Law Library Association, — Fees of Clerks of Courts, — Natu- 
ralization Fees. 



To the Control- 
ler of County 
Accounts. 

1897 
March 12. 



The county treasurer of Worcester County may not pay to the County Law 
Library Association either the fees received from clerlis of courts or 
those received in naturalization cases, but he is authorized to pay, on 
account of county law libraries, only a sum not exceeding two thousand 
dollars, the amount named in Res. 1897, c. 40. 

The question submitted in your letter of April 26 relates to 
the construction of certain statutes and resolves of the Com- 
monwealth which are apparently inconsistent, unless the earlier 
statutes are to be regarded as repealed by the later statutes. 

Under the provisions of Pub. Sts., c. 40, § 6, as amended by 
St. 1882, c. 246, county treasurers were required annually to 
pay to law library associations in their respective counties for 
the maintenance of law libraries, all money paid into the treas- 
ury during the year by clerks of courts, to an amount not 
exceeding two thousand dollars in any one year, and also such 
further sums as the county commissioners might deem neces- 
sary and proper. It was further provided by St. 1885, c. 345, 
§ 6, that all fees received by clerks of courts in the Common- 
wealth in naturalization cases should be paid to the county 
treasurers, to be paid by them in turn to the treasurers of 
county law libraries, which sums were stated to be "in addi- 
tion to the suras which such associations are now entitled to 
receive l)y law." St. 1897, c. 153, after providing that the 
expenditure of money by counties shall be authorized l)y the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 439 

General Court by appropriation, annual or special, declares in 
§ 9 that "No county expenditure shall be made nor liability 
incurred, nor bill paid for any purpose, in excess of the amount 
appropriated therefor, except as hereinafter provided." Under 
the resolve granting a county tax for the county of Worcester 
(Res. 18