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



/■sp 




113 ^ 



i. 



mm ^- 







OrnCIAL OPINIONS 



THE ATTORNEYS-GENERAL 



dTommaiitcitahlj ai ^lassatljusdts^ 



PUBLISHED BY THE 

ATTORNEY-GENERAL. 



Volume II. 

From 1899 to 1905 inclusive. 



BOSTON : 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

18 Post Office Square. 

1907. 



THIS VOLUME CONTAINS 
THE OPINIONS OF ATTORNEYS-GENERAL 

HOSEA M. KlSrOWLTON, 1899-1901. 
HEEBERT PARKER, 1902-1905. 

ALSO TABLES OF STATUTES AND CASES 
CITED, AND AN INDEX DIGEST. 



PEEFACE. 



The present volume is issued by the Attorney-General in pursuance 
of the authority contained in Resolves of 1906, chapter 18, which pro- 
vides that the Attorney-General shall "collect and^ publish in a volume 
properly indexed and digested such of the official opinions heretofore 
published as an appendix to the annual reports of the attorney-general 
during the years eighteen hundred and ninety-nine to nineteen hun- 
dred and five, inclusive, as he may deem to be of public interest or 
useful for reference." 

It has seemed best that the method of arrangement of this volume 
should follow that of Volume I of the Opinions of the Attorneys- 
General, issued in 1899, so that there should be a substantial uni- 
formity in the several volumes of the series. The work of preparation 
has been in charge of Frederic B. Greenhalge, Assistant Attorney- 
General. 

DANA MALONE, 

A ttorney-General. 
Boston, December, 1907, 



Table of Statutes cited or eeeereed to ix This 

Volume. 



Art. 1, § 2, 
Art. 1, § 4, 
Art. 1, § 6, 



States 


Con 


ST 


[TTJTIO 


PAGE 








. 247 


Art. 


1, 


§8, 


. 247 


Art. 


1, 


§10, 


. 248 


Art. 


2, 


§1, 



PAGE 

. 204 

. 262 

246, 247 



Acts of Congress. 



1862, July 2, 12 Stat. 503, c. 130, 359 
1868, June 25, 15 Stat. 77, c. 72, . 446 
1890, August 8, 26 Stat. 313, c. 728, 437 



1892, August 1, 27 Stat. 340, c. 352, 446 
1898, June 13, 30 Stat. 448, c. 448, 
§6, 88 



390, . 
3412, 



United States Revised Statutes. 

PAGE 

. 227 § 5278, 
. 33 



PAGE 

369, 414, 435 



Dec. of Rights, art. 30, . 
Const., c. 1, § 1, art. 2, 

§ 1, art. 4, 

§ 2, art. 9, 

§ 3, art. 9, 



Constitution of the Commonwealth 

PAGE 

406 
514 



162 
516 
516 



Const., c. 2, § 1, art. 11, 
§ 3, art. 1, 

c. 6, art. 1, 

Amend'ts Const., art. 6, 

art. 33, 



PAGE 

597 
597 
246 
246 
516 



1756, c. 26, 

1765, c. 5, 

1786, c. 54, 

1809, c. 65, § 7, 

1819, c. 114, 

1821, c. 49, 

1822, c. 41, 



Statutes of the Commonwealth. 

PAGE 

355 1826, c. 164, 
355 1831, c. 72, 



356 
37 

272 

273 

36 



§5, . 
§ 14, 



c. 81, 

1832, c. 21, 

c. 153, 



PAGE 

276 
127 
129 
138 
130 
164 
139 



Vlll 



STATUTES CITED. 



Con. 



1833, c. 
1837, c. 
1839, c. 

1848, c. 
1852, c. 

1854, c. 

1855, c. 

1856, c. 
c. 



116, 

229, 
70, 

276, 
157, 

275, 
448, 
445, 
50, 
173, 



5, . 

2, . 

§§2,3, 
8, . 
34, 
2, . 
1, • 



1858, c. 

1859, c. 

c. 

c. 

1860, c. 

1862, c. 

1863, c. 

1864, c. 

1865, c. 

1866, c. 

c. 

1867, c. 



c. 

1868, c. 

1869, c, 

c, 

1870, c. 

1871, c 

1872, c 

c 



1, 
139, 
196, 
249, 
211, 

176, 
166, 
220, 
223, 
229, 
162, 
131, 
149, 
189, 
268, 
270, 



296, 
309, 
384, 
432, 
461, 
224, 
284, 
325, 
382, 
188, 
236, 
375, 



!§2, 
(13, 

J4, 
§3, 



§14, 



J4, 

il7, 

J7, 

(§7, 

J7, 



§1, 

§1, 
§1, 

§2, 
§2, 



Statutes of the Commonwealth 

PAGE 

127, 130, 139 1873, c. 199, 

. 25 1874, c. 274, 

139-141 

. 139 

. 614 c. 372, 

. 193 1875, c. 173, 

. 193 c. 241, 

. 501 1876, c. 227, 

. 636 1877, c. 204, 

. 501 c. 224, 

. 27 1878, c. 190, 

. 537 

. 539 1879, c. 130, 

. 540 c. 242, 

. 74 

. 614 c. 263, 

. 539 1880, c. 260, 

. 615 

. 73 1881, c. 191, 

. 74 c. 196, 

48, 447 c. 271, 

. 359 1882, c. 121, 

84, 359 c. 246, 

. 84 c. 251, 

105, 108 1883, c. 127, 

. 501 1884, c. 201, 

. 193 c. 255, 

. 26 

. 273 c. 298, 

. 26 c. 320, 

127, 140, 141 § 14, 

. 141 c. 330, 

141, 142 § 1, 

. 277 1885, c. 109, 

. 278 c. 121, § 1, 

. 307 c. 123, § 2, 

. 26 c. 162, 

. 127 c. 183, 

. 363 c. 211, 

. 631 c. 314, § 6, 

132, 134, 135 § 7, 

. 179 § 9, 

. 233 § 12, 

. 26 c. 323, 

. 65 1886, c. 346, § 2, 



2, . 

3, . 
179, 
29, 

4, . 

5, . 



1, cl. 6, 

1, • 

2, . 



1, par. 1, 
1, ■ 
1, ■ 
1, • 



11, 

28, 
33, 

4, 



cl. 6, 



18, 



PAGE 
. 541 

. 15 

80, 81, 291 
24, 80 
. 134 
. 280 
. 302 
. 22 
. 214 
. 463 
. 292 
4, 81 
. 65 

15, 81, 292 
. 4 
. 479 
5 
. 7,8 
. 469 
27, 249 
. 463 
. 147 
3 
. 287 
. 116 
. 35 
. 91 
. 91 
. 469 
. 119 

. 187, 188 
31, 55, 221, 222 
. 152 
. 224 
. 231 
. 192 
52, 53 
. 215 
. 501 
. 60 
. 8,9 
. 59 
. 9 
. 632 
. 10 



STATUTES CITED. 



IX 



1886, c. 346, 

1887, c. 214, 



c. 382, 

c. 420, 

c. 437, 

c. 440, 

1888, c. 154, 

c. 239, 

c. 318, 

c. 365, 

c. 384, 

c. 413, 

c. 429, 

1889, c. 154, 

c. 163, 

c. 356, 

c. 454, 

c. 473, 

1890, c. 196, 
c. 341, 

c. 357, 

c. 423, 



5, . 

7, . 

78, 

78, cl. 5, 

80, 

84, 

4. 



c. 440, § 1, 
— §2, 



1891, c. 177, 

c. 195, 

c. 210, 

c. 325, 

c. 364, 

c. 396, 

1892, c. 40, 

c. 177, 

c. 351, 

c. 419, 

1893, c. 78, 

c. 131, 



1, 
1, 

1, 
5, 



;§2, 
J3, 



§ 17, 
§8, 
§ 11. 

§ 1, 



\ 11, 

\l, 
(5, 
(§190, 200 



4, 



253 



1893, c. 367, 



c. 392, 
c. 403, 
c. 407, 



§3, . 

§4, . 

c. 417, § 14, 

§ 218, 

c. 423, 
c. 474, 
c. 476, 



Statutes of the CoMMON"mEALTH 

PAGE 

59 

10 

66 

66 

67 

66 
124 

60 

52 
187 
501 
124 
100 
232 
113 
564 
190 
215 
526 
113 
133 

66 
250 
187 
192 
526 

46 
469 
538 
209 
210, 211* 
240 

66 

118 

211 

212 

461 

341 

526 

394 

254 

469 

57, 400, 640 

. 191 

150, 152 



Con. 



§33, 

§62, 
§ 149, 

§§ 5-7, 



367, 454, 568 



85, 



1894, c. 78, 

c. 133, 

c. 190, 

c. 257, 

c. 288, 



— c. 317, 



c. 342, 
c. 350, 
c. 367, 

c. 378, 
c. 381, 



c. 440, 
c. 443, 
c. 444, 
c. 450, 

c. 452, 
c. 458, 



195, 



c. 462, 
c. 463, 
c. 472, 
c. 481, 



14, 

3, 

1, 

1, 

3, 



21, 
21, par. 



§ 10, 

§1, 
§64, 

§9, 

§1, 

§11, 
§1, 

§42, 



57, 
I, cl. f 



85 



5 

100 

29 

30 

298 

191 

569 

364 

378 

469 

538 

192 

38 

196 

245 

239 

66 

280 

640 

367, 567 

568, 569 

, 364, 454 

. 116 

23, 257 

115, 116 

463 

146 

216 

526 

89 

55 

31 

32 

189 

640 

387 

58, 172 

59, 60 

. 172 

. 269 

. 270 

155, 172 

. 85 

. 172 

. 300 



STATUTES CITED. 



1894, 



c. 483, § 
c. 497, § 



3, . 

2, . 

§5, . 

§7, . 

c. 508, § 3, . 

§7, . 

§§ 51, 54, 



Statutes of the Commonwealth — Con. 

PAGE 

1896, c. 397, § 5, 
§9, 



c. 519, 
c. 522, § 



3, . 

20, 

29, 
29, par. 5 
31, 
60, 
68, 
77, 
78, 

78, cl. 5, 
80, 
84, 
87, 

§ 91, 98, 
93, cl. 2, 



1895, 



1896, 



c. 


59, 


§1, ■ 
§2, . 




c. 


94, 


§1, • 




c. 


203, 








— 


§1, 




c. 


412, 


§10, 


c. 


449, 


§27, 


c. 


450, 


§1. • 




— 


§§ 7-9, 


c. 


462, 


§ 1, • 


c. 


483, 






c. 


488, 








— 


§3, 








§9, 








§31, 




c 


501, 






c 


173, 






c 


190 






c 


302 






c 


381 






c 


397 




. 



. 57 

. 177 

. 112 

. 245 

. 54 

. 176 

. 177 

. 187 

. 124 

. 34 

. 66 

. 289 

. 66 

. 157 

. 168 

. 289 

. 66 

. 67 

. 66 

. 123 

. 284 

. 284 

. 299 

. 34 

. 299 

. 75 

. 78 

532, 534 

. 533 

. 269 

391, 393 

. 57 

. 365 

. 303 

. 104 

. 332 

335, 337 

. 339 

. 175 

. 187 

. 461 

. 192 

. 113 

. 238 

. 97 



c. 408, 
c. 422, 
c. 448, 
c. 465, 

c. 517, 

c. 541, 



§21, 

§§1,2, 
§14, 
§1, . 



119 



1897, c. 66, 

c. 121, § 2, . 

§ 3, . 

c. 172, § 32, 

§§ 34, 35, 

c. 205, 

c. 206, 

c. 207, 

c. 208, §§ 1,2, 

c. 237, § 1, . 

c. 239, § 45, 

c. 254, 

c. 283, 

c. 355, § 1, . 

§ 4, . 

c. 428, 

c. 439, § 1, . 

§ 10, 

c. 500, 

§ 10, 262; 

§ 17, 

§ 18, 

c. 510, 

1898, c. 219, 

c. 247, § 1, . 

c. 278, § 4, . 

c. 391, 

C.425, 

§1, . 

§ 2, . 

§ 5, . 

C.428, 



PAGE 

. 165 
165, 276 
. 282 
. 241 
. 248 
. 299 
367, 368 
. 365 

120, 186, 188 
. 121 

109, 179, 180 
. 108 
. 124 
. 292 
86, 366, 367 
. 409 
. 410 
. 154 
. 189 
. 378 
. 224 
. 22 
. 623 
. 192 
. 336 
50, 110, 177 
. 109 
. 192 
. 383 
. 48 
. 130 

427, 428, 430, 
431, 507 

505, 507, 509 
. 507 
. 357 
. 309 
. 231 
. 72 
. 164 
. 25 
. 319 
4, 275, 292 
19, 304 
28,29 



3, 



STATUTES CITED. 



XI 



1898, c. 428, 
C.433, 

c. 441, 

c. 466, 

c. 467, 

■ c. 474, 

c. 479, 

c. 496, 

c. 525, 

c. 537, 

c. 548, 

c. 561, 

c. 578, 



1899, c. Ill, 

c. 155, 

■ c. 169, 

c. 170, 

c. 199, 

c. 211, 

c. 229, 

c. 247, 

c. 330, 

c. 354, 

■ c. 359, 

c. 368, 

c. 378, 

c. 424, 

■ c. 442, 



6, . 

11, 

19, 



Statutes op the Commonwealth — Con 

PAGE 

5 

92 



i 14, 

( 13, 

12, . 
i§ 1,2, 
J3, . 
jl, . 

J 91, 

!§ 304-310 

j315, 

\ 1, • 
\ 13, 
\ 16, 
5 24, 
j26, 



§1, 



§ 1, 

§§ 1, 9, 10 
§§ 5, 6, 



§2, 



c. 448, 



§ 1, 
§§ 4, 5, 
§§ 3-5, 
§ 1, • 
§21, 
§ 11, 
§ 15, 
§ 18, 

§4, . 
§6, . 



541 



122 

279 

78 

542 

216 

526 

1 

2 

99 

75, 98 

237 

34 

470, 645 

113 

538 

22, 170 

160 

185 

105, ISO, 183, 235 

111, 183, 235 

49, 109 

. 88 

. 279 

. 50 

637, 639 

. 67 

. 104 

. 215 

. If7 

191, 192, 244 

. 192 

. 89 

. 303 

62, 63 

. 384 

. 400 

214, 216 

. 212 

. 525 

. 526 

. 155 

255, 256, 258 

. 255 



1899, c. 469, 

1900, c. 197, 

c. 215, 

c. 363, 

c. 367, 

c. 382, 

c. 398, 

C.413, § 1, 

§ 2, 

§5, 

1901, c. 144, 

c. 360, 

c. 422, § 18, 

c. 439, 

c. 464, 

c. 496, 

c. 511, 

1902, c. 110, 

c. 116, § 3, 

c. 142, 

c. 206, 

§2, 

c. 213, § 1, 

c. 357, 

c.433, 

C.438, §§ 1,2,4,6, 

c. 473, 

§1, 

1903, c. 229, 
c. 233, 

c. 249, §§3,6,7, 

c. 274, 

c. 386, 

c. 437, §§ 9, 10, 

§§ 18, 20, 

§ 72, 

§ 74, 

§ 75, 

c. 454, § 2, . 

§ 18, 

c. 465, § 3, 

0.471, 

c. 473, § 1, 

1904, c. 261, 

c. 282, § 1, 



PAGE 

72, 74, 75 
. 262 

194, 195 
. 251 
. 344 
. 234 
. 226 
. 428 
. 430 
. 427 
. 647 
. 298 

526, 527 
. 300 
. 293 

383, 384 
. 341 

450, 451 
425, 426, 542 
387 
500 
544 
500 
461 
451 

398, 399 
. 375 

373, 374 

475, 476 
. 501 
. 626 
. 553 
. 449 
. 496 
. 496 

556, 558 
. 558 

493, 495 
. 473 

473, 475 
. 541 
. 585 
. 579 
. 559 
. 5-77 



Xll 



STATUTES CITED. 



1904, c. 308, 

c. 388, § 2, 

c. 450, § 1, 

c. 451, § 6, 

c. 458, 

1905, c. 267, 



Statutes of the Commonwealth — Con. 
1905, c. 381, 



PAGE 

. 532 
. 535 
. 566 

. 592 

513, 585, 587 

. 616, 617 



§3, 

§4, 
§5, 
§6. 



PAGE 

. 589 
617,618 

. 595 
594-596 

. 596 



1859, c. 52, 
c. 103, 

1897, c. 88, 

1898, c. 91, 



Resolves 

PAGE 

480 

480 

40 



61 



1899, c. 93, 

c. 269, 

1903, c. 86, 



PAGE 

61 

43 

457 



1641-1647, 



Colony Ordinance. 



PAGE 

25, 307, 308 



1743-44, c. 12, § 11, 



Province Laws. 



PAGE 

550 



c. 15, § 33, 
c. 16, . 
c. 39, § 83, 



c. 5, § 15, . 
c. 10, §§ 3, 10, 

§ 13, . 

c. 15, § 23, . 

§§30,31, 

c. 18, § 31, . 



c. 1, § 7, . 

c. 2, § 33, . 

c. 6, § 3, . 

c. 9, §§ 9-18, 

c. 13, § 33, . 



Revised 


Statutes. 


PAGE 




. 70 


c. 39, § 84, . 


. 550 


c. 42, . 


. 132 




General Statutes. 


PAGE 




. 480 


c. 22, . 


. 539 


§ 17, . 


. 540 


c. 61, . 


. 480 


c. 66, § 16, . 


. 74 


c. 69, § 1, cl. 5, 


. 70 




Public Statutes. 


PAGE 




. 280 


c. 13, § 54, . 


: 194 


c. 17, § 7, . 


. 469 


c. 19, § 3, . 


. 246 


§9, . 


. 124 


c. 21, . 



PAGE 

142 
273 



PAGE 

. 550 
. 551 

. 362 
. 273 

. 181 



PAGE 

226 
153 
480 
194 
476 



STATUTES CITED. 



xiu 



c. 


21, § 8, . 




c. 


26, 
— §5, . 




c. 


27, § 2, . 

— §§3,6, 

— § 78, 




c. 


33, 




c. 


35, §§ 28-39, 
— §32, 




c. 


40, § 6, . 




c. 


41, § 13, 




c. 


44, § 43, 




c. 


49, 




c. 


52, § 10, 




c. 


54, § 15, 




c. 


65, 




c. 


70, §§ 25-27, 
— §40, 




c. 


73, §§ 1-5, 
— §6, . 




c. 


79, § 2, . 




c. 


81, 




c. 


83, § 1, cl. 2, ■ 




— 


— §l,cl.4, 

— § 1, cl. 5, 




— 


— § 1, cl. 6, 7 

— § 1, cl. 7, 

— §3, . 

— §6, . 




c. 


84, § 18, 




c. 


86, § 25, 
— §35, 




— 


- §43, 




c. 


87, § 40, 

— §45, 

— §50, 




c. 


91, §§ 12, 17, 
— §70, 




c. 


102, § 98, 





6, § 58, 

- §65, 

- §79, 



Public Statutes — Con. 




PAGE 




PAGE 


. 21 


c. 105, § 1, . 


. 230 


. 95 


§3, . 


. 36, 130 


. 115 


§ 28, 


. 222 


. 27 


c. 106, 


. 58 


. 42 


§ 7, . 


. 67 


. 70 


§§46,48. . 


. 174 


, . 550 


§§47,48, . 


. 172 


. 254 


c. 112, § 7, . 


. 142 


. 254 


§8, . 


. 138 


. 3 


§§26,81,83, 


. 150 


. 88 


§ 180, 


132, 134, 136 


. 68, 69, 71 


§ 220, 


. 149 


. 179 


c. 113, 


. 49 


. 192 


§7, . 


107, 184, 185 


. 234 


§§21,32, . 


. 184 


. 297 


§ 22, 


. 108, 109 


. 48 


c. 114, 


. 273 


. 48 


§ 1, ■ 


. 271, 274 


. 221 


c. 116, § 20, par. 2, 


. 116 


. 222 


c. 117, § 6, . 


• _ • 230 


. 195 


§ 13, 


. "" . 463 


1 


§ 16, 


. 287 


. 181 


c. 118, 


. 33 


. 274 


c. 119, 


. 65 


. 319 


§ 202, 


. 222 


. 159 


c. 121, § 1, . 


. 23 


. 292 


c. 154, § 34, 


. 295 


. 228, 229 


c. 156, § 40, 


. 87 


. 275 


c. 159, § 7, . 


. 537 


. 19, 304 


c. 170, § 2, . 


. 254 


. 501 


c. 199, § 24, 


. 87 


. 228 


c. 207, § 58, 


. 295 


. 306, 307 


c. 213, § 15, 


. 93 


. 123 


c. 214, §§ 16, 19, . 


. 93 


. 122 


0.217, §2, . 


. 152 


. 93 


§4, . 


. 115 


. 224 


c. 221, §§ 54-58, . 


. 243 


. 27 


c. 222, §§ 10, 12, 14, 


. 93 


. 250 


c. 223, § 4, . 


. 182 


Revised Laws. 




PAGE 




PAGE 


. 310 


c. 7, § 1, . 


. 598 


. 561 


§9, . 


. 599 


.600 


c. 11, § 13, . . 


. 469 



XIV 



STATUTES CITED. 





Revised Laws — Con. 






PAGE 




PAGE 


c. 11, §§ 44, 60, 67, 91, 


92. 144, . 470 


c. 67, § 2, . 


. 447 


§§ 87, 88, . 


. 605 


c. 73, § 3, . 


. 443 


§ 88, 


. 606, 607 


— §§ 7, 8, 


. 402 


§ 213, 


. 650 


c. 75, § 14, 


... .553 


§ 277, 


. 537 


§§ 16-18, 


. 608 


§ 318, 


. 536 


§§ 35-58, 


. 500 


§§ 327, 334, 


. 474 


§46, 


. 544 


§ 422, 


. 341 


§§ 112, 113 


. 552, 553 


c. 12, § 4, . 


. 557 


§ 113, 


. 554 


§ 4, cl. 2, . 


. 405 


§§ 113, 114 


. 357 


c. 14, 


. 363 


§§ 113, 116 


, 117, . . 358 


§38, 


. 403 


c. 76, § 14, 


. 318 


§ 65, 


. 628, 630 


§17, 


. 482,483 


c. 15, §§ 12-14, . 


. 375 


c. 77, § 32, 


. 393 


c. 16, §§ 24, 25, . 


. 411 


c. 79, § 18, 


. 408, 417 


§ 33, 


. 412 


c. 80, § 1, cl. 4, 5, 


. 319 


§ 57, 


. 320 


§ 1, cl. 10, 


. 390, 391 


§ 105, . 3 


51, 413, 439, 563 


c. 81, § 2, . 


. 544, 551 


§§ 105-107, 111, 


117, . . 564 


c. 85, §§ 9, 10, 14 


. 501 


§ 107, 


. 466 


§ 14, 


. 499 


§§ 111, 113, 116, 


. 439, 563 


§18, 


. 544 


§ 115, 


. 413 


§§ 20, 21, 


. 448 


§ 147, 


. 334 


§§ 23, 24, 


. 543 


c. 18, 


. 476 


c. 90, § 4, . 


. 425, 426, 542 


§ 11, 


. 309 


§7, . 


. 426 


c. 19, § 7, . 


. 460 


§28, 


. 543 


c. 23, §§ 18, 19, . 


. 612 


c. 91, § 19, 


. 552, 554 


c. 25, § 15, 


. 316 


§§ 86, 88, 9 


1, . . . 321 


c. 30, § 1, . 


. 549 


§§ 104, 105 


. 431, 432, 578 


§21, 


. 548, 550 


c. 96, 


. 578 


c. 32, § 3, . 


. 387 


§3, . 


. 309, 479, 480 


§§ 71-77, . 


. 393 


§23, 


. 502 


§§ 74-77, . 


. 394, 395 


c. 100, §§ 2, 18, 


. 623 


c. 35, § 5, . 


. 382 


§22, 


. 621 


§ 17, 


. 383 


§33, 


. 436, 438 


c. 42, § 3, . 


. 451, 452 


§§ 49, 50, 


. 622, 623 


§§43,44, . 


. 468 


§§ 67, 68, 


. 450 


§ 44, 


. 469 


c. 102, § 81, 


. 477,478 


c. 47, §§6, 13, . 


. 398 


§ 163, 


. 316, 317 


§8, . 


. 378, 380 


c. 104, § 36, 


. 564-566 


§ 11, . 


. 386 


0. 106, § 19, 


. 476 


§ 21, 


. 385 


§20, 


. 442, 443 


c. 48, § 65, 


. 423 


§22, 


. 388 


c. 56, §§ 36, 48, . 


. 332 


§28, 


. 616, 617 


c. 65, §§ 19, 20, 22, 


. 610 


c. 109, 


. 363 



STATUTES CITED. 



XV 



c. 109, 
c. 110, 

c. Ill, 



c. 112, 
c. 113, 



c. 114, 

c. 115, 
c. 116, 

c. 118, 



c. 119, 



§3, . 

§9, . 

§4, . 

§62, 

§77, 

§28, 

§20, 

§ 26, cl. 1, 

§ 26, par. 3 

§ 14, 

§27, 

§30, 

§35, 

§3, . 

§§ 20, 83, 

§60, 

§65, 

§96, 

§98, 

§2, . 
§§4,7,8, 
§§ 10, 13, 
§ 13, 



c. 121, 



Revised Law 

PAGE 

. 487 
. 363 
. 346 
. 422 
. 574 
. 421 
. 647 
. 317 

593, 594 
, cl. a, . . 619 
. 462 
. 317 
. 317 
. 317 
. 318 
. 471 
. 522 
471, 545, 546, 582 
. 481 

382, 383 
. 471 

347, 348 
. 349 
. 350 
. 525 
. 526 
. 346 



s — Con. 

. 121, §§ 26, 29, 31, 33 

§41, 

• 122, §§ 1, 3, 
. 126, §§ 4-7, 

§ 11, 

. 148, § 3, . 
. 202, § 2, . 

§ 17, 

. 204, § 6, par. 11, 

§§27, 28, 33, 

. 208, § 30, 

§ 104, 

.211, § 213, 

.212, §§ 39, 46, 54, 55^ 

.217, §11, 

§ 12, 

§ 13, 

§ 14, 

. 220, § 3, . 
.224, §§ 8, 28, . 

§§ 16, 18, . 

§ 17, 

§ 28, 

. 225, § 7, . 
.227, 

§4, . 



34, 



PAGE 

. 314 

. 311, 312 

. 424 

402, 440, 441 

. 420, 575 
. 375 
. 502 
. 504 
. 456 
. 611 
. 549 

. 385, 386 

. 651 

59, . '. 549 

415, 416, 435 

. 369, 434 
. 381 
. 380 
. 483 
. 613 
. 612 
. 614 
. 615 

. 614, 615 
. 341 
. 387 



§§ 3815-3894, 



General Statutes of Connecticut. 



PAGE 

324 



XVI 



CASES CITED. 



Table of Cases cited en^ This Volume. 



Adams v. Ipswich, 116 Mass. 570, 

25, 275 
Adams Express Co. v. Kentucky, 

166 U. S. 171, . . . .494 

V. Ohio, 165 U. S. 194, . . 494 

Agawam v. Hampden, 130 Mass. 

528, 536, 107 

AUen-'y. McKeen, 1 Sumn. 277, . 356 

AUgeyer v. Louisiana, 165 U. S. 

578, .... 472, 522 

American Casualty Company's 

Case, 82 Md. 535, . . .289 

Ancient Charters, 148, 149, . 308 

Arnold v. Ruggles, 1 R. I. 165 

(1837), 404 

Atkin V. Kansas, 191 U. S. 207, . 498 
Atlantic & Pacific Telegraph Co. v. 

Philadelphia, 190 U. S. 160, 163, . 494 
Attorney-General v. Metropolitan 

R.R. Co., 125 Mass. 515, 517, . 107 
V. Old Colony R.R., 160 Mass. 

62, 135 

V. Sullivan, 163 Mass. 446, . 636 

V. Trehy, 178 Mass. 186, 193, 

343, 411, 625 

V. Williams, 174 Mass. 476, 479, 

330, 641 
Baile v. St. Joseph F. & M. Ins. Co., 

73 Mo. 371, ... .548 

Bailey v. De Crespigney, L. R. 4 

Q. B. 180, . . . 331, 360 

Bank of Augusta v. Earle, 13 Peters, 

519, 496 

Barron v. Burnside, 121 U. S. 186, 

199, 524 

Bergman v. Commercial Assurance 

Co., 92 Ky. 494, . . .584 

Black V. Delaware & Raritan Canal 

Co., 24 N. J. Eq. 455, . . 486 



PAGE 

Blake v. McClung, 172 U. S. 239, . 523 
Bligh V. Brent, 2 Y. & C. 268 (1837), 404 
Bliss V. Parks, 175 Mass. 539, . . 215 

Bolts V. Simpsonville, etc.. Turnpike 

Co., 88 Ky. 54, . . . 486 

Brewer v. Dyer, 7 Cush. 337, . . 236 

Brooklyn Park Comrs. v. Armstrong, 

45 N. Y. 234, . . . .511 
Brown v. Hummel, 6 Pa. St. 86, . 356 
V. Roger Williams Ins. Co., 5 

R. I. 394, 584 

V. Russell, 166 Mass. 14, . 187, 188 

Browne v. Turner, 174 Mass. 150, 

160, 519 

Buffalo & New York City R.R. Co. 

V. Dudley, 14 N. Y. 336, . . 487 

Burk V. Hollis, 98 Mass. 55, . . 23 

Burtis V. Burtis, 161 Mass. 508, 16, 159 
Butterfield v. Byron, 153 Mass. 517, . 360 
Calder v. Kurby, 5 Gray, 597, 626, 627 
Camp V. Bryne, 41 Mo. 525, . . 496 

Campbell v. American Fire Ins. Co., 

73 Wis. 100, . . .548 

V. Brown, 1 Grant (Pa.), 82, . 251 

V. Whoriskey, 170 Mass. 63, . 503 

Carpenter v. Snelling, 97 Mass. 452, . 87 
Carter v. Cambridge & Brookline 

Bridge Proprietors, 104 Mass. 236, 542 
Cary Library v. Bliss, 151 Mass. 364, 356 
Cheever v. Wilson, 9 Wall. 108, 124, 16 
City of St. Louis v. Sheilds, 52 Mo. 

351, 512 

Clearwater v. Meredith, 1 Wall. 25, . 486 
Cleland v. Porter, 74 111. 76, . . 651 
Clemens v. Conrad, 19 Mich. 170, . 87 
Collector v. Day, 11 Wall. 113, . 87 
Commonwealth v. Alger, 7 Cush. 53, 25 
V. Bala, etc.. Turnpike Co., 153 

Penn. State, 47, ... 504 



CASES CITED. 



xvu 



Commonwealth v. Barker, 133 Mass. 

399, ■ 549 

V. Boston Advertising Co., 188 

Mass. 348, . . .326 
V. B. & A. R.R. Co., 142 Mass. 

146, 147 

V. Colton, 8 Gray, 488, . . 330 

V. Gilbert, 160 Mass. 157, . 329 

i>. Hamilton Mfg. Co., 120 Mass. 

383, 443 

V. Harris, 101 Mass. 29, . . 329 

V. Heffron, 102 Mass. 148, 43, 294 

V. Kelley, 177 Mass. 221, 249, 617 

V. Kern, 147 Mass. 595, . . 294 

V. Lockwood, 109 Mass. 323, . 483 

V. Lowell Gas Lt. Co., 12 Allen, 

75, 313 

V. Overby, 80 Ky. 208, . . 331 

V. Parks, 155 Mass. 531, . . 330 

V. Perry, 139 Mass. 198, . . 329 

V. Perry, 155 Mass. 117, 121, . 64 

V. Peters, 12 Met. 387, . . 27 

V. Plaisted, 148 Mass. 375, . 267 

V. Roxbury, 9 Gray, 451, 483, . 308 

V. Savage, 155 Mass. 278, . . 321 

— V. Smith, 132 Mass. 289, . 79 

V. Smith, 141 Mass. 135, . 597 

V. Vincent, 108 Mass. 441, . 308 

V. Young, 165 Mass. 396, 321, 322 

Connecticut River R.R. Co. v. 

County Comrs., 127 Mass. 50, 55, . 74 
Cook V. Stearns, 11 Mass. 533, . 83 

Cooper Mfg. Co. v. Ferguson, 113 

U. S. 727, 441 

Copeland v. Copeland, 7 Bush, 349, 404 
County of Cass v. Johnston, 95 U. S. 

370, 517 

Crutcher v. Kentucky, 141 U. S. 

47, 441, 494 

Cummington v. Wareham, 9 Cush. 

585, 549 

Gushing v. Worrick, 9 Gray, 382, 

249, 617 
Dartmouth College v. Woodward, 4 

Wheat. 518, . . . .356 

Davis V. Sa\vyer, 133 Mass. 289, . 329 
Deerfield v. Greenfield, 1 Gray, 514, . 544 



Dickinson v. Consolidated Traction 

Co., 114 Fed. 232, 252, . . 493 

Dillingham v. Hook, 32 Kan. 185, . 512 
Dorsey v. Anslie, 72 Ga. 460, . . 634 

Dow V. Northern R.R., 67 N. H. 1, . 488 
Doyle V. Continental Ins. Co., 94 

U. S. 535, 523 

Du Page County et al. v. People ex 

rel, 65 111. 360, . . 651, 652 

Ducat V. Chicago, 10 Wall. 410, . 523 
Durfee v. Old Colony R.R. Co., 5 

Allen, 230, . . . 487, 489 

Edwards v. Warren Linoline Works, 

168 Mass. 564, .... 
Employers' Liability Ins. Co. v. 

Merrill, 155 Mass. 404, 
Enterprise Brewing Co. v. Grime, 

173 Mass. 252, . . .56, 

Evans v. Boston Heating Co., 157 

Mass. 37, . 
Ex parte Cassenello, 62 Cal. 538 
Ex parte Gay, 5 Mass. 419, 
Ex parte Kuback, 85 Cal. 274, 
Ex parte Reggel, 114 U. S. 642, 
Fazende v. City of Houston, 34 

Fed. Rep. 95, . 
Fentiman v. Smith, 4 East, 107, 
Feoffees, etc., in .Ipswich v. Andrews 

8 Met. 584, 587, 
Firemans Ins. Co. v. Common- 
wealth, 137 Mass. 80, 
Fitchburg v. Ashby, 132 Mass. 495, 

V. Athol, 130 Mass. 370, . 

V. Lunenburg, 102 Mass. 358, 

Flagg V. Bradford, 181 Mass. 315, 
Foster v. Park Comrs., 133 Mass 

321, 329, .... 
Freeman v. Bourne, 170 Mass. 289, 

293, 

Fry V. Booth, 19 Ohio St. 25, . 651, 652 
FuUenweider v. Royal League, 180 

111. 621, 

Georgia Home Ins. Co. v. Stein, 72 

Miss. 943, 

Oilman v. Sheboygan, 2 Black 

(U. S.), 510, .... 
Green v. Weller, 32 Miss. 650, 



13 

289 

300 

313 
329 
23 
444 
415 

511 

83 

354 

404 

4 

18 

227 

457 

178 

469 



348 

584 

512 
518 



XVlll 



CASES CITED. 



Gunning System v. Buffalo, 75 N. Y. 

S. C. App. Div. 31, . . . 330 

Haehnlen v. Commonwealth, 13 

Penn. State, 617, .504 

Hagar v. Reclamation District, 111 

U. S. 701, 325 

Hale V. Cheshire R.R., 161 Mass. 

443, .... 489, 492 

Hamilton Mutual Ins. Co. v. Hobart, 

2 Gray, 543, . . . 487 

Harnden v. Gould, 126 Mass. 411, . 517 
Harrington v. Fitchburg Mutual Fire 

Ins. Co., 124 Mass. 126, . 583 

Hicks V. British American Asso. Co., 

162 N. Y. 284, . . .548 

Hitchcock V. Springfield, 121 Mass. 

382, 385, .... 178, 179 
Hoadley v. County Comrs., 105 Mass. 

519, 559 

Holden v. Hardy, 169 U. S. 366, . 443 
Hooper v. California, 155 U. S. 

648, ■ . . . . 472, 523 
Howe V. Morse, 174 Mass. 491, . 403 
V. West End St. Ry. Co., 167 

Mass. 46, 49, . . . 107, 264 

Howell V. Coupland, L. R. 1 Q. B. 

D. 258, 360 

Hughes V. Wamsutta Mills, 11 Allen, 

201, 331 

In re de las Casas, 180 Mass. 471, . 325 
In re Jones' Estate, 172 N. Y. 575, . 404 
In re Portuguese, etc., Co., L. R. 42 

C. D. 160, .276 

In re Wilshire, 103 Fed. Rep. 620, . 330 
Insurance Co. v. Morse, 20 Wall. 

445, 524 

Ipswich V. Andrews, 8 Met. 584, 587, 364 
Jamaica Pond Aqueduct Corp. v. 

Brookline, 121 Mass. 5, . . 397 

Jaquith V. Wellesley, 171 Mass. 138, . 646 
Jenkins v. Andover, 103 Mass. 94, 

99, 102 

Jennings v. Davis, 31 Conn. 134, . 561 
Johns V. Johns, 1 Ohio State, 351, . 404 
Johnson v. McConnell, 80 Cal. 545, . 251 
V. Mutual Life Ins. Co. of New 

York, 180 Mass. 407, . . .472 



648 
617 



Karelsen v. Sun Fire Office, 122 N. Y. 

545, . . . . ' . 

Keening v. Ayling, 126 Mass. 404, 
Kenosha, etc., R.R. Co. v. Marsh, 17 

Wis. 13, 

Kentucky Railroad Tax Cases, 115 

U.S. 321, 

Kimball v. Salem, 111 Mass. 87, 
King V. Parkyn, 1 Barnewall & 

Adolphus, 652, .... 
Knight V. Boston, 159 Mass. 551, 
Knowles v. Yeates, 31 Cal. 82, 
Kutter V. Smith, 2 Wall. 491, 
Langmaid v. Reed, 159 Mass. 409, . 
Lothrop V. Stedman, 42 Conn. 

583, . . . . 

Lawson v. Adlard, 46 Minn. 243, 
Lee V. City of Boston, 2 Gray, 484, 

490, 

Leloup V. Mobile, 127 U. S. 640, 
Lipman v. Niagara Fire Ins. Co., 121 

N. Y.454, .... 

Liquidators v. Municipality, 6 La. 

Ann. 21, 

Louisiana v. Pillsbury, 105 U. S. 278, 

287, 288, 

Maine v. Grand Trunk Ry. Co., 142 

U.S. 217, 

Major V. Barker, 99 Ky. 305, . 651, 652 
Manchester Fire Ins. Co. v. Herriott, 

91 Fed. 711, .... 
Marshall v. Blackshire, 44 la. 475, . 
Matter of Deering, 93 N. Y. 361, . 
McCray v. Junction R.R. Co., 9 Ind. 

358, 

McGee v. Salem, 149 Mass. 238, 
McKenna v. Kimball, 145 Mass. 555, 

556, 

Mead v. Acton, 139 Mass. 341, 
Merrick v. Amherst, 12 Allen, 500, 

508, 

V. Reynolds Engine & Governor 

Co., 101 Mass. 381, . 
Messer v. Ancient Order 

Workmen, 180 Mass. 321, 
Metropolitan R.R. Co. v. 

R.R. Co., 12 Allen, 262, 



325 
70 

634 

405 

652 

24 

329 

38 

477 

477 
495 

548 

511 

510 

494 



523 
251 

397 

486 
557 

69 
268 

102 

363 
United 
. 348, 349 
Quincy 

. 107 



CASES CITED. 



XIX 



Middleborough v. Plympton, 140 

Mass. 325, . . .81 

Miller v. Ewer, 27 Me. 509, . . 496 

Mills V. Central R.R. Co., 41 N. J. 

Eq. 1, 488 

Mobile V. Watson, 116 U. S. 289, . 510 
Moore v. Quirk, 105 Mass. 49, . . 87 

Moses V. United States, 16 App. D.C. 

428, 330 

Mumford v. Whitney, 15 Wend. 380, 83 
N. H. & Derby R.R. Co. v. Chapman, 

38 Ct. 56, 71, . . . . 488 

Nash V. Brown, 165 Mass. 384, . 317 

Natick Gas Lt. Co. v. Natick, 175 

Mass. 246, 252, . . . .397 

Nebraska, etc., Ins. Co. v. Seivers, 

27 Neb. 541, . . .548 

Nelson v. St. Martin's Parish, 111 

U.S. 716, 510 

New York v. Roberts, 171 U. S. 658, 495 
New York, etc., Canal Co. v. Fulton 

Bank, 7 Wend. 412, . . .486 

Newton v. Joyce, 166 Mass. 83, . 329 
Nugent V. Supervisors, 19 Wall. 241, 

249, 493 

Nutting V. Massachusetts, 183 U. S. 

553, 472 

Oldtown & Lincoln R.R. Co. v. 

Veazie, 39 Me. 580, . . .486 

Opinion of the Justices, 7 Mass. 523, 477 



14 Mass. 472, 

22 Pick. 571, 

138 Mass. 601, 

155 Mass. 598, 

166 Mass. 589, 

175 Mass. 599, 

186 Mass. 603, 605, 

Orient Ins. Co. v. Daggs, 172 U. S. 

557, 

Orleans v. Chatham, 2 Pick. 29, 
Osborn v. Mobile, 16 Wall. 479, 
V. Selectmen of Lenox, 2 Allen, 

207, .... 250, 

Overseers of the Poor v. Sears, 22 

Pick. 122, 130, . . . . 

Pain V. Societe St. Jean Baptiste, 

172 Mass. 319, . . . . 



. 94 
. 519 
. 331 
. 3r3 

. 268 

268, 445 

. 585 



523 

319 
495 



251 



69 



348 



Paine v. Woods, 108 Mass. 160, 308, 309 
Palmer v. Hicks, 6 Johns, 133, . 28 

Palmer Savings Bank v. Ins. Co. of 

North America, 166 Mass. 189, 194, 583 
Parkinson v. State, 14 Md. 184, 197, . 518 
Paul V. Virginia, 8 Wall. 168, . 
People V. Coler, 166 N. Y. 1, . 

V. Waite, 70 111. 25, 

People ex rel. v. Brewer, 20 111. 474, . 
Perry v. Tuskaloosa, etc., Co., 93 

Ala. 364, 

Phillips V. Blatchford, 137 Mass. 510, 
Pierce v. Drew, 136 Mass. 75, . 
Pittsburg, etc., Ry. Co. v. Backus, 

154 U. S. 421, .... 
Postal Telegraph Cable Co. v. Adams, 

155 U. S. 688, .... 
Pratt V. Street Comrs. of Boston, 

139 Mass. 559, 562, 
Prince v. Crocker, 166 Mass. 347, 361, 107 
Proprietors of Mills v. Common- 
wealth, 164 Mass. 229, 
Ralls County Court v. United States, 

105 U. S. 733, 738, . 
Re Flaherty, 105 Cal. 558, 
Redemptorist Fathers v. Boston, 

129 Mass. 178, 180, . 
Rex V. Dawes, 4 Burrows, 2120, 
Rhode Island v. Massachusetts, 15 

Peters, 233, 273, 
Ricker v. American Loan & Trust 

Co., 140 Mass. 346, . 
Robbins v. Shelby County, 120 U. S. 

489, 

Roberts v. Riley, 116 U. S. 80, 
Rochester v. West, 164 N. Y. 510, . 
Rockport V. Webster, 174 Mass. 385, 

233, 240, 554 
Russell V. Temple, 3 Dane Abr. 108 

(Mass. 1798), . . . .404 

Ryan v. City of New York, 177 N. Y. 

271, 498 

Salem v. Ipswich, 10 Cush. 517, 520, 24 

V. Maynes, 123 Mass. 372, . 331 

Sanders v. Partridge, 108 Mass. 556, 236 
Sears v. Boston, 173 Mass. 71, . 106 
V. Street Comrs., 173 Mass. 350, 106 



523 
444 
634 
651 

276 
13 

264 

494 
494 
495 



86 

510 
330 

560 

634 

42 

13 

441 
415 
330 



XX 



CASES CITED. 



PAGE 

510 

503 

16 

544 

496 



Seibert v. Lewis, 122 U. S. 284, 290, . 
Shaw V. Silloway, 145 Mass. 503, 
Shute V. Sargent, 67 N. H. 305, 
Smith V. Peabody, 106 Mass. 262, . 
V. Silver Valley Mining Co., 64 

Md. 85, 

Somerville v. Boston, 120 Mass. 574, 

4, 81 
Southworth v. Palmyra & Jackson 

R.R. Co., 2 Mich. 287, . . 518 

Spencer 1^. Leicester, 140 Mass. 224, . 319 
Springfield v. Wilbraham, 4 Mass. 493, 80 
State V. Brewer, 64 Ala. 287, . . 504 

V. Gould, 31 Minn. 189, . . 517 

V. Norton, 5 Ohio N. P. 183, . 444 

V. Sponaugle, 45 West. Va. 415, 504 

Stewart v. Stone, 127 N. Y. 500, . 360 
Stone V. Heath, 179 Mass. 388, . 554 

Stoughton V. Cambridge, 165 Mass. 

251, . . 15, 16 

Street v. Varney Electrical Supply 

Co., 66 N. E. 895; 160 Ind. 338, . 444 
Strong, Petitioner, 20 Pick. 484, 492, 79 
Talbot V. Hudson, 16 Gray, 417, 73, 74 
Tappan v. Bailey, 4 Met. 529, . 13 
Taunton v. Boston, 131 Mass. 18, . 18 
V. Middleborough, 12 Met. 35, 

37, 274 

Tebbe v. Smith, 108 Cal. 101, . . 652 

Thorndike v. Boston, 1 Met. 242, 245, 16 
Train v. Boston Disinfectant Co., 

144 Mass. 523, . . . .329 



PAGE 

13 



Tyrrell v. Washburn, 6 Allen, 466, . 
United Hebrew Benevolent Asso. 

V. Benshimol, 130 Mass. 325, 327, . 
United States v. Railroad Co., 17 

Wall. 322, .... 

Upton V. Northbridge, 15 Mass. 237, 274 
Von Hoffman v. City of Quincy, 4 

Wall. 535, .... 

Wall V. Hinds, 4 Gray, 256, 271, 
Waterman v. Johnson, 13 Pick. 261, 

265, 

Waters-Pierce Oil Co. v. Texas, 177 

U.S. 28, 

Watuppa Reservoir Co. v. Fall River, 

147 Mass. 548, 554, . . 308, 309 

Welles V. Cowles, 2 Conn. 567, . 404 

West Roxbury v. Stoddard, 7 Allen, 

158, .... 

Western Union Telegraph Co. v. Mas 

sachusetts, 125 U. S. 530, 554, 

V. Texas, 105 U. S. 460, . 

Westfield v. Southwick, 17 Pick. 68, 
White V. Blanchard Co., 178 Mass. 

363, 264 

V. Creamer, 175 Mass. 567, . 276 

V. Manhattan Ry. Co., 139 

N. Y. 19, 83 

Worcester v. Great Barrington, 140 

Mass. 243, . 81, 82 

Wright V. Oakly, 5 Met. 400, 406, . 53 
Zabriskie v. Hackensack, etc., R.R. 

Co., 18N. J.Eq. 178, . . 488 



53 



87 



510 
23 

309 

523 



308 

494 
494 
544 



opiNioisrs 



HOSEA M. KNOWLTON,ATTOENEY- GENERAL. 



Pauper — Dead Body — Promotion of Anatomical Science. 

By St. 1898, c. 479, an act relative to the promotion of anatomical science, the 
officials named therein must surrender to medical schools, upon proper 
application and the giving of a bond as prescribed, such bodies as would 
otherwise be buried at the public expense. 

After such application, the officials cannot bury the bodj' at the public expense. 

The terms of the bond, as required by the statute, prohibit the return of such 
bodies. 

Your letter of November 16, 1898, submits certain questions to the super- 

^ intendent of 

touching the construction of St. 1898, c. 479, entitled "An Act the state 

o ' ' Farm. 

relative to the promotion of anatomical science." jamfaryg. 

The statute in question is mandatory. It is in substitution 
of Pub. Sts., c. 81, which was merely a permissive act. Under 
the Public Statutes, the overseers of the poor and other officials 
named in the act might, in their discretion, deliver bodies which 
otherwise must be buried at the public expense, for the purpose 
of dissection, but they were not compelled so to do. Under the 
statute of 1898, however, upon the application of the dean or 
other officer of a medical school established by law in this Com- 
monwealth, such officers are recjuired to surrender the bodies 
which otherwise would have been buried at the public expense, 
for the use of such schools, upon the giving of a bond as prescribed 
in the statute. Such application having been made, the overseers 
of the poor and other officials enumerated have no right to bury 
the body at the public expense or to use the public funds for 
that purpose, but must, upon the receipt of a sufficient bond, 
deliver the body upon the application. 



OPINIONS OF THE ATTORNEY- GENERAL. 

Your letter also inquires whether it is lawful to insist, as one of 
the conditions, that the body, after being used by the medical 
school, should be returned to those from whom it was received. 
The penal condition in the bond distinctly provides, following § 2 
of the act in question, that the body must be kept for fourteen 
days, for purposes of identification, and that, after having been 
used for the promotion of anatomical science, "the remains shall 
be decently buried." This requirement, which is one of the con- 
ditions of the bond to be given, prohibits the return of the body. 

I enclose a form of bond which I have had printed for use of 
institutions included in the provisions of the act. It is not for 
this office to fix the amount of the bond, but I see no reason why 
a penalty of one hundred dollars for each body, which, I under- 
stand, has been the usual sum in such cases, is not sufficient. 



Insurance — Agent — License — Power or Attorney. 

The authority of a person duly appointed by an insurance company, and licensed 
by the insurance department of the Commonwealth, as an insurance agent, 
is ordinarily personal in its nature, and cannot be transmitted to another. 

The question whether the authorized agent of an insurance company can delegate 
to another the power of countersigning a policy, is one which does not con- 
cern the insurance department of the Commonwealth. 

Ti?surance Your letter of December 16, 1898, requests the opinion of 

Commissioner, ^j^^ Attomey-Geueral upon the following question: 'Tan the 
jiimiary 10. authority of a person duly appointed by an insurance company, 
and licensed by this department as an insurance agent, be dele- 
gated to another by power of attorney?" 

It is impossible to answer your question generally, I can con- 
ceive of cases where the agent might act by attorney, clerk or 
sub-agent. Ordinarily, however, such an appointment is personal 
in its nature, and cannot be transmitted to another. 

The specific question in your letter, intended to illustrate your 
general question, to wit, whether an authorized agent can dele- 
gate to another the power of countersigning a policy, is one that 
does not concern your office. Whether the policy is duly issued 
is a question for the parties, not for you. 



Controller 



HOSEA M. IvXOWLTON, ATTORNEY- GENERAL. 

County Accounts — Law Library Association — Title to 
Money from County Treasury. 

The Norfolk Bar Association was organized in Januarj^, 1898, and was entitled 
to receive the full amount appropriated under Pub. Sts., c. 40, § 6, as amended 
by St. 1882, c. 246, on the first day of January, 1899, although its by-laws 
were not approved by the Superior Court until November, 1898. 

Pub. Sts., c. 40, § 6, provides that " County treasurers shall Control 
annually pay to the law library associations in their respective AccountT. 
counties all sums paid into the county treasuries during the year January lo. 
by the clerks of the courts, to an amount not exceeding fifteen 
hundred dollars in any one year." St. 1882, c. 246, made the 
amount two thousand dollars, instead of fifteen hundred dollars. 
I am informed that this statute is so construed as to make the 
amount so appropriated payable on the first day of January. 

The Norfolk Bar Association was organized in January, 1898, 
but its by-laws were not approved by the Superior Court until 
November. It was, however, in existence, and entitled to the 
provisions of law made for its benefit, in January, 1899, and is 
entitled to the amount appropriated under the section quoted. 

The fact that it has not been in existence during the entire year 
is not, in my judgment, of consequence; nor the fact that the 
county commissioners have, under appropriations therefor, pur- 
chased books during the year for the law library. The full 
amount provided by the statutes is nevertheless payable to the 
association. 



Pauper — Married Woman — Settlement. 

A woman who acquired a settlement by marriage in one town could not acquire 
one on her own account, under St. 1879, c. 242, § 2, in another, so that she 
could become a charge upon the second town, after her husband's settlement 
and her own, acquired by marriage, in the first town, were destroyed by 
St. 1898, c. 425, § 2. 

The case stated in your letters of October 1, 1898, and January Tothesuper- 
9, 1899, is this: A man, born in Massachusetts, had a settle- state Aduit 

. . . . . Poor- 

ment in Leominster, acquired prior to 1860. This settlement j^^^^^^^ j^ 
was lost by the provisions of St. 1898, c. 425, § 2. His wife 



OPINIONS OF THE ATTORNEY- GENERAL. 

had acquired settlement in the same place by her marriage. 
Her settlement also was lost by the same statute. From 1874 to 
1882, while married, she resided in Athol, without receiving aid. 

The question submitted by your letters is whether, assuming 
that her marriage settlement was lost by St. 1898, c. 425, § 2, 
her residence in Athol gives her a settlement under St. 1879, 
c. 242, § 2. 

St. 1878, c. 190, § 1, cl. 6, re-enacting St. 1874, c. 274, § 2, 
provides that : "Any woman of the age of twenty-one years, who 
resides in any place within this State for five years together, with- 
out receiving relief as a pauper, shall thereby gain a settlement 
in such place." It was held in Somerville v. Boston, 120 Mass. 
574, that this provision applied only to unmarried women. By 
St. 1879, c. 242, § 2, it was further provided that the clause 
quoted should be held to apply to married women who have not 
a settlement derived by marriage. 

An examination of these statutes makes it evident that a mar- 
ried woman, having a settlement derived by marriage, could ac- 
quire no settlement under the clause quoted. As to such, the 
statute never existed. 

St. 1898, c. 425, § 2, declares that all settlements acquired 
prior to 1860, are defeated, "provided that, whenever a settle- 
ment acquired by marriage has been thus defeated, the former 
settlement of the wife shall be thereby revived." This provision, 
however, does not revive a settlement which never existed. As 
above stated, the residence of the married woman in Athol did 
not give her any rights to a settlement, and consequently no 
settlement in Athol was ever acquired by her. 

The case is different from that stated in Fitchburg v. Ashhy, 
132 Mass. 495, which dealt with a statute retroactive only in so 
far as it permitted rights under the statute to be acquired prior to 
the enactment of the statute. 



HOSEA M. KNOWLTOX, ATTORNEY- GENERAL. 



Militia — Commissioned Officer — Provisional Militia. 

An officer holding a commission in the active miUtia, who did not enter the ser- 
vice of the United States in the Spanish War, but accepted an office in the 
provisional militia, authorized by St. 1898, c. 428, vacated his office in the 
active militia by accepting the office in the provisional. 

Your letter of November 18, 1898, requires the opinion of the Tothe 

^ 1 c 11 • • • Adjutant- 

Attorney-General upon the followmg question, to wit: ''Does General. 
an officer of the militia, holding a commission in the active Ja "u'"y lo. 
militia, who does not enter the service of the United States, and 
who accepts a commission in the provisional militia, authorized 
under the provisions of c. 428, Acts of 1898, vacate his former 
commission on accepting the latter?" 

The provisional companies, battalions and regiments, author- 
ized by St. 1898, c. 428, § 6, are, in my opinion, subject to the 
provisions of the general militia law, St. 1893, c. 367, except- 
ing as otherwise specially provided. 

Section 50 of the general militia law provides that: "When an 
officer holding a military commission is elected or appointed to 
another office in the militia, and accepts the same, such accept- 
ance shall vacate the office previously held." 

This section answers your inquiry. An officer who accepts an 
election to office in the militia vacates his former commission 
whether the new commission be in the active or in the provisional 
militia. 



Northern Avenue Bridge — Northern Avenue — Right of 
Commonwealth to build and extend. 

The right of the Commonwealth, under the four-part agreement, to build Northern 
Avenue bridge and to extend Northern Avenue, is not impaired by St. 1880, 
c. 260, or by the deed made under authority of that statute. 

I have your letter of November 30, 1898, submitting certain to the Board 
inquiries relating to St. 1880, c. 260. The statute authorized Landc'omm'is 

sioii(?i*s 

the New York & New England Railroad Company to purchase i899 

the twenty-five-acre lot, so called, on the Commonwealth's flats 

at South Boston, "subject to the right of the city of Boston 



OriNIONS OF THE ATTORNEY- GENERAL. 

to lay out Northern avenue over said parcel as provided in an 
indenture of four parts between the Commonwealth, the Boston 
and Albany Railroad Company, the Boston Wharf Company and 
the city of Boston, dated the twenty-fourth day of June, eight- 
een hundred and seventy-three," for the sum of one million 
dollars. The statute further provides that, upon the payment 
of two hundred thousand dollars thereof, ''said New York and 
New England Railroad Company shall have all the rights of the 
Commonwealth under said indenture to build Northern avenue 
bridge and extend Northern avenue to some existing street on 
the northwesterly side of Fort Point channel, for and on account 
of said city, and to reimbursement therefor from said city, as 
provided in said indenture." The statute further provides: 
''Said railroad company shall also have authority to build, at 
its own cost, Northern avenue bridge, in anticipation of action 
by the said city, subject, however, to all rights of said city 
under said indenture." 

The question submitted in your letter, in substance, is whether, 
under this statute and the deed given by authority thereof, the 
Commonwealth has parted with its rights as to the building of 
the Northern Avenue bridge under said indenture. 

The Commonwealth, at the time of the execution of the four- 
part agreement, was the owner of a large tract of land situated 
easterly of Fort Point Channel, of which the twenty-five-acre 
lot referred to in the statute of 1880 was a small portion. Under 
the terms of the indenture, the city of Boston, in consideration 
of certain obligations entered into by the Commonwealth and the 
other parties thereto, covenanted and agreed, upon certain con- 
ditions stated therein, to build, within twelve months after the 
request of the Board of Harbor and Land Commissioners, ap- 
proved by the Governor and Council, a bridge for public travel 
over Fort Point Channel, in extension of Northern Avenue. The 
indenture also provided for the laying out of Northern Avenue 
over the land of the Commonwealth and of the Boston & Albany 
Railroad Company, which corporation was the owner of land 
deeded to it by the Commonwealth. 

The indenture further provided that, in case the city of 



HOSEA M. KNOWLTON, ATTORNEY- GENERAL. 

Boston should fail to build Northern Avenue bridge and extend 
the avenue, the Commonwealth might build the bridge and 
extend the avenue; and in such case the city of Boston should 
pay to the Commonwealth the cost thereof, not exceeding a 
specific sum. 

The building of the bridge and the extension of the avenue 
were necessary to the proper development of the land of the 
Commonwealth, not merely of the twenty-five-acre lot which 
was adjacent to the channel, but of all the other land lying to 
the eastward; and the plain purpose of the indenture was to 
secure the performance of the work, at the option of the Com- 
monwealth, either by the city of Boston, or, by the Common- 
wealth, at its expense. 

St. 1880, c. 260, § 1, par. 1, provides, in terms, it is true, that 
the railroad company "shall have all the rights of the Com- 
monwealth under said indenture to build Northern Avenue 
bridge arid extend Northern Avenue ; ' ' but in view of the circum- 
stances, which must have been known to the Legislature when 
the statute was enacted, I do not think that it was the intention 
of the Legislature to give up the rights of the Commonwealth, 
but rather to admit the New York & New England Railroad 
Company, it being the grantee of a portion of the tract to be 
benefited, to an equal right in the enforcement of the covenant 
to build the bridge and extend the avenue. I am of the opinion 
that the words "shall have all the rights of the Commonwealth 
under said indenture" are to be taken to mean that the railroad 
company shall share and exercise,»in common with the Common- 
wealth, all its rights to have the bridge built and the avenue ex- 
tended. Such a construction does not unduly violate the letter 
of the statute, and is consistent with what may be supposed to 
have been the purpose of all parties in its enactment. It would 
be unreasonable to suppose that the Commonwealth, being the 
owner of a large tract, of which the twenty-five-acre lot was only 
a small portion, all of which alike would be benefited by the 
building of the bridge, intended, in selling the twenty-five-acre 
lot to the railroad company, to part with the rights it had ac- 
quired under the indenture. 



OPINIONS OF THE ATTORNEY- GENERAL. 

It is unnecessary to consider how far action taken by the rail- 
road company under the statute would have concluded the rights 
of the Commonwealth; for, as I am informed, no action whatever 
has been taken. The city cannot avoid its obligation by reason 
of the statute, for it has not been prejudiced or injured by its 
enactment nor by any acts done under it. The deed to the rail- 
road contains no express assignment of the rights of the Com- 
monwealth, under the four-part agreement, to have the bridge 
built and the avenue extended. The railroad, therefore, has no 
right of interference in the matter, except under the statute, 
which, for the reasons I have stated, is not to be interpreted as 
taking away the rights of the Commonwealth. 

Upon the whole, therefore, I am of the opinion that the 
right of the Commonwealth to build Northern Avenue bridge 
and extend Northern Avenue is not impaired by St. 1880, c. 260, 
or by the deed made under the authority thereof. 



Gas Company — New England Gas and Coke Company — 
Unincorporated Voluntary Association — Returns to 
Gas and Electric Light Commissioners. 

St. 1886, c. 346, § 2, providing that " manufacturing companies in which the manu- 
facture of gas is a minor portion of their business shall only be required 
to keep accounts of the expenses and income of their gas business," was 
intended to exempt manufacturing corporations which carry on a gas busi- 
ness in addition to and entirely separate from their principal business, and 
does not apply to a company whose business is the manufacture of coal 
by one process into gas, coke and other by-products. 

While a gas corporation becomes subject to the jurisdiction of the Board of Gas and 
Electric Light Commissioners as soon as it is incorporated, an unincorpo- 
rated voluntary association has no greater rights and is subject to no greater 
duties or liabilities than an individual, and is not, therefore, subject to the 
jurisdiction of the Board, and is not required to make returns to the Board 
until it comes into actual relations with the gas consumers. 



To the Board 
of Gas and 

Electric 
Light Com- 
missioners. 

1899 
.Tanuarv 26. 



I have the honor to acknowledge receipt of two communica- 
tions from the Board of Gas and Electric Light Commissioners, 
notifying the Attorney-General that the New England Gas and 
Coke Company appears to have violated the provisions of St. 
1885, c. 314, § 7. 



HOSEA M. KNO^^^.TOX, ATTOllXEY-GEXERAL. 

The first letter, dated Deceml^er 12, 1898, sets forth that the 
company ''has failed to make its annual return to the Board, 
in the form prescribed by this Board, on or before the second 
Wednesday of September, A.D. 1898." 

The second letter, dated January 19, 1899, states that the com- 
pany "has refused and neglected to furnish any statement of 
certain information required by the Board, touching the con- 
dition, management and operations of the company, although 
requested so to do on the twelfth day of December, 1898." 

These notifications are given to the Attornej-General under 
the provisions of § 12 of said chapter, which provides that, 
whenever any gas company violates or neglects to comply 
with the provisions of the statutes, the Board shall give notice 
thereof, in writing, to such corporation and to the Attorney- 
General, who "shall take such proceedings thereon as he may 
deem expedient." Proceedings against the company being thus 
left to the discretion of the Attorney-General, I have deemed it 
my duty to consider carefully whether, upon the facts stated, the 
company has violated the provisions of the statute. As a result 
of my examination, I am clearly of the opinion that no violation 
of law appears, and that I should not institute proceedings against 
the company. Although your Board is not responsible for the 
action of the Attorney-General, it is due to it that I state briefly 
the reasons which have led me to these conclusions. 

The section in question (St. 1885, c. 314, § 7) provides that; 
"Every gas company shall annually make a return to said board 
in a form and at a time prescribed by said 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 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; and said return shall be signed and sworn 
to by the president and treasurer of said company and a majority 
of its directors. Every such company shall also at all times, on 
request, furnish any statement of information required by the 
board concerning the condition, management and operations of 



10 OPINIONS OF THE ATTORNEY- GENERAL. 

the company, and shall comply with all lawful orders of said 
board." 

The New England Gas and Coke Company is not a corpora- 
tion. Your letter assumes, however, that the company is made 
subject to the provisions of the section quoted, by St. 1886, 
c. 346, § 7, which provides that, in the construction of the 
statute, the provisions of which it is alleged have been violated, 
"the terms 'gas company' and 'corporation' shall include all 
persons owning or operating works for the manufacture and 
sale of gas for heating or illuminating purposes within the 
Commonw^ealth . ' ' 

Before discussing what I deem to be the principal question 
involved, it may be well to allude briefly to one of the claims 
made by the company as a reason for not making the returns 
required by the statute. St. 1886, c. 346, § 2, after providing 
that the returns to l^e made by gas companies shall be made on 
or before the second Wednesday of September in each year, 
further provides "that manufacturing companies in which the 
manufacture of gas is a minor portion of their business shall 
only be required to keep accounts of the expenses and income 
of their gas business." I am informed that one of the conten- 
tions of the New England Gas and Coke Company is that it 
is not required to make returns to your Board, because the manu- 
facture of gas is to be a minor portion of its business, and that 
it has submitted estimates tending to show that the value of 
the gas product will be less than that of the coke manufactured. 
I have no difficulty with this contention. It is conceded that 
in all essential respects the process of the company in question 
is similar to that of other gas companies manufacturing coal 
gas, the only difference claimed being that by the methods 
designed to be employed by this company a relatively larger 
proportion of coke will be manufactured. When coal is treated 
for the production of gas, the resulting products include gas and 
coke and ammonia. Ordinarily, the coke is of less value than 
the gas. The New England Gas and Coke Company claims that 
its product of coke will be more valuable than the gas, although 
it admits that no separate account can be kept of the expense of 



HOSEA M. KXOWLTOX, ATTORNEY- GENERAL. 11 

manufacturing gas, which shall not include all the expenses of 
treating the coal employed. 

The statute upon which the company relies was intended to 
exempt manufacturing corporations which carry on a gas busi- 
ness in addition to and entirely separable from their principal 
business, as to which an account of the expenses and income 
from such incidental business might be accurately determmed, 
But the business of this company is the manufacture of coal, 
by one process, into gas, coke and other by-products. This 
is its principal, and, so far as I know, its only, business; and 
it is not exempt from making returns merely because it may 
happen that the produced coke is worth more than the gas. 
Both are products of one process of manufacturing. 

If the contention of the New England Gas and Coke Company 
were sound, any gas company would be exempt from making 
a return whenever it could show that the income from what are 
usually termed its hy-prodiwts exceeded that derived from the 
sale of gas. Such a construction would make the enforcement 
of the salutary provisions of the statute, w^hich are designed 
for the protection of the gas-consuming public, dependent entirely 
upon the market value of the various products of the gas retort. 
This, obviously, was not the intention of the Legislature, and is 
not a reasonable construction of the provisions in question. 

My principal difficulty arises from the fact that the gas com- 
pany is not now engaged in the manufacture or sale of gas. If 
it were a gas corporation, this fact would make no difference. 
Such a corporation becomes subject to the jurisdiction of your 
Board as soon as it is incorporated. It is essentially, and by 
express provisions of its charter, a gas corporation. It exists 
as such under the authority and by sanction of the Legislature. 
It cannot plead to the jurisdiction of your Board that it is not 
engaged in the manufacture of gas; for it is, nevertheless, a 
gas corporation, subject from its inception to all the provisions 
of law applicable to such corporations. 

The New England Gas and Coke Company, however, is not 
a corporation, but an unincorporated voluntary association. 
The title is but a designation of certain trustees holding prop- 



12 OPINIONS OF THE ATTORNEY- GENERAL 

erty upon certain trusts set forth in a declaration of trust dated 
September 30, 1897. The declaration of trust provides that the 
trustees shall use the property conveyed to them in trust "in 
manufacturing, buying, selling and dealing in coal, oil, coke or 
gas, or all the products thereof of every description and anj^ 
business similar thereto, including electric business of all kinds;" 
and the trustees are to divide the profits of the business ratably 
among certain persons called shareholders, in proportion to the 
number of shares held by them. The original shareholders, 
with the number of shares, are stated in the declaration, and it 
is provided that certificates of shares shall be issued to each 
shareholder, which certificates may be transferred to others 
whose names shall l^e recorded on the trustees' books, the trans- 
feree to be held to have assented to the terms of the trust by 
the fact of his acceptance of the transfer of the shares. The 
death of a shareholder does not determine the trust nor give 
his personal representative a right of accounting, but simply 
entitles him to a new certificate of stock, upon the acceptance 
of which he succeeds to all the rights of the deceased under 
the trust. No shareholder has the right to call for a partition 
accounting or a division of the trust i^roperty. 

Upon the death or removal of any trustee, his successor is 
to be appointed by the remaining trustees or by the court, 
and such new trustee shall have the same powers and be sub- 
ject to the same duties as an original trustee. Unless termi- 
nated by the action of a percentage of the stockholders, the trust 
is to continue for fifty years, unless all of the trustees now 
living shall have died more than twenty-one years prior to the 
expiration of fifty years, in which case the trust is to terminate 
at the expiration of such twenty-one years. At the termination 
of the trust the property is to be divided or sold and divided 
among the shareholders. The holders of two-thirds of the shares 
may alter or terminate the trust at a properly called meeting. 

The trustees are empowered, among other things, to make 
certain contracts, borrow money, give notes or other obliga- 
tions, mortgage the trust property to secure the payment of 
such obligations or notes, and, generally, to do all things neces- 



HOSEA M. KNOWLTOX, ATTORNEY- GENERAL. 13 

sary to execute the trust; but express limitations are put upon 
their powers, so that they are not authorized to bind tlie share- 
holders personally by any contract or by any act, neglect or 
default; and this exemption applies also to the trustees them- 
selves; but it is provided that any party injured shall have 
recourse for satisfaction solely to the trust estate. Every 
note, bond, obligation or contract shall give notice of these 
limitations on the power of the trustees by a direct reference 
to the declaration of trust. 

It is plain that these provisions, while in many respects 
resembling those peculiar to corporations, do not constitute 
the New England Gas and Coke Company a corporation. Noth- 
ing less than sovereign power can create a corporation. There 
is no such thing as a corporation (excepting, perhaps, a corpora- 
tion sole) at common law. The essential features of corporations 
can only exist by legislative authority, either under general 
laws authorizing the formation of corporations, or under special 
charters. The company in question has no special charter, 
and it is not contended, and cannot be claimed, that it has 
complied with, or attempted to comply with, the general stat- 
utes authorizing the forming of corporations. There is in this 
Commonwealth no form of association midway between a 
corporation and a partnership. Although a partnership is 
in the form of a joint stock company, it is held to be merely 
a partnership. Tappan v. Bailey, 4 Met. 529; Tyrrell v. 
]Vashburn, 6 Allen, 466; Edwards v. Warren Linoline Works, 
168 Mass. 564. It is immaterial that the shares of the company 
are transferable. Phillips v. Blatchford, 137 Mass. 510. See also 
Richer v. American Loan & Tnist Co., 140 Mass. 346. 

So far, therefore, as the provisions of the statutes relating 
to gas companies are applicable only to gas corporations, they 
cannot be enforced against the New England Gas and Coke 
Company. It has clothed itself in the garb and assumed the 
form and appearance of a corporation; but it is, nevertheless, 
a voluntary association of individuals, without corporate power 
or authority, and has no greater rights and is subject to no 
greater duties or liabilities than any association of individuals, 



14 OPINIONS OF THE ATTORNEY- GENERAL. 

or even than any individual. For the purposes of the statutes 
relating to the powers of your Board, it is to be treated pre- 
cisely as though it were an individual. 

This being so, what duty of making returns did the Legisla- 
ture intend to impose upon an individual engaging or proposing 
to engage in the manufacture and sale of gas? A statute requir- 
ing from individuals engaged in business in this Commonwealth 
information regarding the condition, management and opera- 
tions of their business is one which must necessarily impose 
upon such individuals special burdens and duties not required 
of other classes in the community. The statute purporting to 
impose such burdens must, therefore, in my opinion, be strictly 
construed. Black on Interpretation of Laws, p. 300. 

In view of these principles, which are fundamental and well 
settled, I cannot believe that it was the intention of the Legisla- 
ture to impose upon an individual any duty of making returns 
or of furnishing information as to his private business. The 
building of factories and retorts by an individual, even the 
making of executory contracts for the future sale and delivery 
of gas to a corporation, are matters of private business, so far, 
at least, as relates to the contractor. The supervision of the 
Commonwealth over the operations of an individual is only 
warranted when, by actually engaging in the business of supply- 
ing gas, he serves the public. There is a clear distinction in 
this respect between an indi^ddual and a gas corporation. 
As I have already pointed out, the corporation is the creation 
of the Commonwealth, acquires its rights under the laws of 
the Commonwealth, and, whether engaged in business or not, 
is and should be subject to all the provisions governing such 
corporations. An individual, on the other hand, is not within 
the purview of the statute, and does not become subject to the 
jurisdiction of your Board, by reason of any intentions he may 
have formed or any preparations he may have made, until he 
comes into actual relation with the gas consumer. 

I am of opinion, therefore, that the New England Gas and 
Coke Company, being but a voluntary association of individuals. 



IIOSEA M. KNOWLTOX, ATTORNF.Y- GENERAL. 15 

and not being engaged in the manufacture or sale of gas, is 
not at present required to make returns to your Board, nor 
to answer inquiries as to its business or financial condition. 



Pauper — Marrip:d Woman — Domicile — Settlement. 

A woman whose husband has never had a domicile in this Commonwealth, and 
who has deserted her, may by her own separate residence acquire a settle- 
ment here. 

The doctrine that a married woman's domicile is that of her husband has no ap- 
plication to this case. 

That doctrine does not apply so as to give a woman who came to this Common- 
wealth from a foreign country, three years after her husband, a constructive 
residence here, during the three years, which can be tacked on to her actual 
residence here, for the purpose of giving her a settlement. 

Your letter of December 3, 1898, states two cases, which, in to the super 

' ' . . intendent of 

my opinion, are governed by the same general considerations, state Aduit 
First. — One who is now a pauper came with his mother p-pijrfjjL, o 
to this Conmionwealth and to Worcester in 1874. He has 
acquired no settlement in his own right. None of his ancestors 
except his mother ever lived in Massachusetts. His father 
and mother last lived together in the State of New York, in the 
town of Champlain, where he was born. His father there de- 
serted his family and removed to Michigan, where he lived 
until his death, in 1896. His mother, after her husband's deser- 
tion, came to Worcester, where she resided, without receiving 
public aid, from 1874 to 1889. 

The question submitted by your^letter is, whether the mother 
of the pauper acquired a settlement by her residence in Worces- 
ter, which descended to her son. The settlement of the mother 
is claimed under the provisions of St. 1874, c. 274, as amended 
by St. 1879, c. 242, providing that married women who have 
not a settlement derived by marriage, who reside in any place 
within the State for five years, shall thereby gain a settlement 
ia such place. 

In Stoughton v. Cambridge , 165 Mass. 251, it was held that a 
settlement was gained by a married woman in the defendant 



16 OPINIONS OF THE ATTORNEY- GENERAL. 

city because her husband's domicile was there for a period of 
more than five years, although her own domicile, excepting 
so far as it was that of her husband, did not remain constant, 
the court (Allen, J.) saying, "It still remains the law of Massa- 
chusetts that ordinarily -a married woman's domicile is that 
of her husband." 

I do not think, however, that the doctrine of Stoughton v. 
Cambridge is applicable to the present case. The husband had 
no domicile in Massachusetts, and never had. He had deserted 
his wife in New York, and removed to another State. After the 
desertion she had come to Massachusetts, and there resided. 
In my opinion, the legal fiction that wherever a wife may be 
actually, she is constructively with her husband, does not apply 
to this case. Many exceptions have grown up to the ancient 
doctrine. At the present day, the law recognizes the wife 
as having a separate existence and separate rights and separate 
interests; the ancient unity is severed, so that the wife stands 
upon an ecjual footing with her husband as to property, torts, 
contracts and civil rights. He now has no more control over 
her than she over him, and there seems to be no reason why 
she may not acquire a separate residence when she resides 
within and her husband without the State, and especially 
when he has forfeited his marital rights by his misconduct. 
To fix inevitably her residence with her husband would sub- 
vert her statutory right of voting and holding office, and would 
compel an innocent wife to make her home in whatever voting 
precinct her offending husband might choose to live. Cheever 
v. Wilson, 9 Wall. 108, 124; Shute v. Sargent, 67 N. H. 305; 
Burtis v. Burtis, 161 Mass. 508. See also Thorndike v. Boston, 
1 Met. 242, 245. 

Without attempting to establish any rule applicable to all 
cases, I am clearly of the opinion that, upon the case stated, 
the mother of the pauper, by her residence in Worcester, gained 
a settlement there, notwithstanding the residence of her desert- 
ing husband in Michigan. 

Second. — The second case stated in your letter illustrates 
still more forcibly the absurdity of the proposition that for 



HOSEA M. KNOWLTOX, ATTORNEY- GENERAL. 17 

purposes of settlement the wife's domicile is to be construed 
in all cases as that of her husband. 

The pauper in this case came to this country in February, 
1895, being then about two years of age. His father, a native 
of Ireland, lived in Springfield, Mass., from 1892 to 1898, but 
without acquiring a settlement. His mother first came to this 
country, to Springfield, in 1895, where she resided for three 
years without receiving aid. By tacking on to her actual resi- 
dence two years of constructive residence, while her husband 
was living here and before she ever saw this country, it is con- 
tended that she had resided in Massachusetts for five years. 
I do not think the statute can be construed to cover such a 
case, nor that the doctrine of Stoughton v. Cambridge applies 
to it. 



Pauper — Unmarried Woman — Residence — Settlement. 

The retroactive provision of St. 1874, c. 274, which gives a settlement to a woman 
by reason of residence, though such residence accrued before its enactment, 
does not apply to the case of an unmarried woman who at the time of its 
enactment was not a resident of Massachusetts. 

Your letter of October 28, 1898, states the following case : — to the super- 
A female pauper, who was born in Ireland in 1840, and who state Aduit . 
came to America and to the town of Winchester, Mass., in „ , is99 „ 

_ ' February 2. 

November, 1862, and resided there as an unmarried woman 

from that date until her removal to California in May, 1868, 
returned from California to Winchester, September, 1896, and 
was committed to Danvers Insane Hospital, April 21, 1897. 
While in California she was committed to a lunatic hospital 
in 1872, where she remained until removed therefrom by her 
nephew in September, 1896, and returned, by him, to Win- 
chester. During her prior residence in the town of Winchester 
she had received no public aid. 

Your letter requires the opinion of the Attorney-General 
upon the question whether the prior residence of the pauper 
in Winchester for more than five years, without receiving assist- 



18 OPINIONS OF THE ATTORNEY- GENERAL. 

ance, gives her a residence in Winchester, under the retroactive 
provisions of St. 1874, c. 274. 

The statute provides, in § 2, that; "Any woman of the age 
of twenty-one years who resides in any place within this state 
for five years together without receiving rehef as a pauper 
shall thereby gain a settlement in such place;" and, in § 3, 
that: "Any unsettled person shall be deemed to have gained 
a settlement upon the completion of the residence and taxation 
herein required, though the whole or part of the same accrues 
before the passage of this act." 

Her removal to California would not, of itself, operate to 
defeat her settlement, if the retroactive provisions of the statute 
apply to her case, so that she is deemed to have acquired a set- 
tlement prior to her removal. Wilbraham v. Sturhridge, 6 Cush. 
61. If, therefore, the statute quoted is to be interpreted as 
including in its retroactive provisions all persons, whether living 
within or without the State at the time of its enactment, she 
must be deemed to have acquired a settlement in Winchester 
by her five years' residence in that town before removing to 
California. 

I am of opinion, however, that this is not a reasonable con- 
struction of the act, and that it must be taken to refer only to 
unsettled persons residing within the Commonwealth at the time 
of its passage, and for whom the Commonwealth was or might 
be under duty to provide. 

In Taunton v. Boston, 131 Mass. 18, a statute containing 
similar retroactive provisions was held not to give a settlement 
by derivation to the child of an unsettled person who died 
. before its enactment. The case of Fitchhurg v. Athol, 130 Mass. 
370, is more nearly in point. It was held in that case that 
the statute now under consideiation was not intended to give 
a settlement to persons who voluntarily ceased to be residents 
of the State twenty years before it was enacted, and, by 
derivation, to the descendants of such persons. Although 
neither of these cases can be said to be directly in point, they 
go far to sustain the position that the purpose of the Legisla- 
ture was to deal only with persons living and residing within 



HOSE A M. KNO^VI.TON, ATTORNEY-GENERAL. 19 

the Commonwealth at the time of the enactment of the stat- 
ute. It having been held that the statute does not apply to 
descendants of persons not living at the time of its enactment, 
nor to the descendants of persons who had removed from this 
Commonwealth before its enactment, the same considerations 
would logically lead to the exclusion of non-residents them- 
selves, and I have no doubt that the court would so hold. 

I am of opinion, therefore, that the pauper in question is not 
settled in Winchester. 



Pauper — Temporary Aid to Unsettled Poor. 

St. 1898, c. 425, § 5, does not apply to persons whom the overseers of the poor are 
maintaining in their local almshouses, whose settlements are defeated by 
other sections of that act. 

Your letter of December 8, 1898, requests my opinion upon to the super. 

. r^/^r-, -ir intendent of 

the construction of St. 1898, c. 425, § 5. Your letter states state Aduit 

Poor. 

that other sections of the same act have unsettled many persons ^ , ^^^ „ 

•^ '■ February 7. 

now supported in almshouses in the towns in which they were 
formerly settled, and that in some cases the town authorities 
of such towns claim that they have a right to charge for the 
support of such paupers, under the provisions of the section 
in question. 

The section was enacted in substitution of Pub. Sts., c. 84, 
§ 18. It is apparent, from the reading of both the section under 
consideration and said § 18, that the purpose of the Legislature 
was to provide aid for the unsettled temporarily poor and 
indigent in their own homes, and thus to prevent the sunder- 
ing of family ties, which must have occurred had no such pro- 
visions been enacted. Neither the former nor the present act 
is intended to include persons whom the overseers of the poor 
are maintaining in their almshouses, as, by their removal thereto, 
the overseers are deemed already to have decided that the alms- 
house, and not their homes, was the proper place for them to 
receive public aid. 



20 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
Controller 
of County 
Accounts. 

1899 
February 9. 



County Accounts — Officers — Serving of Warrants — 

Fees. 

Officers serving warrants are entitled to charge for services and expenses. The 
charge for services comprises fifty cents for each person upon whom service 
is made, and an allowance for " travel." Expenses are limited to actual 
and necessary disbursements, and may be charged in addition to the item 
of constructive travel. 

Railroad fares are not included in "travel," and may be charged in addition thereto. 

If an officer has charged twice for expenses, the amount may be withheld in any 
further settlement between him and the paj'master or clerk whose duty 
it is to pay liim. 

If an officer knowingly charges for expenses which he did not incur, it constitutes 
the offence of obtaining money under false pretences. 

Your letter of December 22, 1898, submits a number of ques- 
tions on which the opinion of the Attorney-General is desired. 
They can well be answered together, as the same considerations 
apply to all. 

Officers serving warrants are entitled to charge for services 
and expenses. The charges for services comprise fifty cents 
for each person on whom service is made, and an allowance, 
dependent upon the number of miles travelled, for what is called 
in the statute ''travel." Although so called, it is, in fact, 
intended as a sliding scale of compensation for serving warrants. 
These two items may be charged in every case where a warrant 
is served, excepting when more than one process is served 
upon the same defendant on the same day. With this exception, 
officers may charge fifty cents for service on every defendant, 
and constructive travel upon every warrant, even though travel 
is thus charged more than once for the same journey. 

It is otherwise with expenses, which can be charged and col- 
lected but once, whether for travelling expenses, conveyance 
of prisoner or for aid. AVhenever, in the service of a warrant, 
an officer incurs expense which is necessary and reasonable, 
he may charge for it. Such expenses, for example, as railroad 
fares, are not included in or covered by the items of construc- 
tive travel, and may be charged in addition thereto. These 
charges are limited to actual disbursements, except that, if an 
officer uses his own team, he may charge fifteen cents a mile 



HOSEA U. KNOWLTON, ATTORNEY-GENERAL. 21 

therefor, in addition to the constructive travel to which he is 
otherwise entitled. 

If, therefore, in any case, an officer has charged twice for 
expenses incurred by him, it is over-payment, and the amount 
may be withheld in any further settlements between him and 
the paymaster or the clerk whose duty it is to pay him. If he 
has knowingly charged for expenses which he did not incur, it 
amounts to the offence of obtaining money by false pretences. 

I believe the foregoing is an answer to all the questions sub- 
mitted. 



Board of Education — Normal School Teacher — Special 
Services at Teachers' Institutes, 

Pub. Sts., c. 21, § 8, providing tliat no person shall at the same time receive more 
than one salary from the State treasury, does not prohibit the State Board 
of Education from employing normal school teachers, with fixed annual 
salaries, at teachers' institutes, and paying them from the appropriation 
made for the use of the Board. 

The section does not apply to special services for a department or commission. 

Your letter of January 7 states that it is proposed by the to the state 
Board to employ normal school teachers for service in teachers' Education, 
institutes, and to pay them therefor from an appropriation Feimuiry is. 
made for the use of said Board. These teachers are paid fixed 
annual salaries, and service in institute work is no part of the 
regular duties for which normal school teachers are paid. 

Pub, Sts., c. 21, § 8, provides that: "No person shall at the 
same time receive more than one salary from the state treas- 
ury," The question upon which you desire my opinion is, 
whether the employment of teachers for institute work, as 
proposed, is in violation of the section quoted. 

The section has always been construed, according to its 
terms, as referring only to salaries fixed and established by 
some law of the General Court. It does not include compen- 
sation for special services under the employment of a depart- 
ment or commission. An allowance for such employment is 
not a "salary," within the meaning of the word as used in the 
statute. 



22 



OPINIONS OF THE ATTORNEY-GENERAL. 

I am of opinion, therefore, that teachers employed as pro- 
posed may properly be paid from the appropriation for teachers' 
institutes at your disposal. 



To the 
Controller 
of County 
Accounts. 

1899 
February 18. 



Bastardy Complaints — Entry Fee. 

The entry fee required in civil cases must be paid upon the fiUng of bastardy 

complaints. 

St. 1876, c. 227, § 5, provides that: "In proceeding under 
the bastardy laws, the cost shall be the same as in civil cases, 
and in addition thereto, a fee . . . for receiving complaint and 
issuing warrant." 

St. 1897, c. 237, § 1, repeals so much of the section above 
quoted as provides for a fee for receiving complaints and issuing 
warrants in bastardy cases. Other fees remain unchanged, 
and it follows that the entry fee required to be paid in civil 
cases must be paid upon the filing of bastardy complaints. 



To the 

Treasurer 
and Receiver- 
General. 
1899 
February 18. 



Spanish War — Termination. 

The war was not ended by the ratification of the treaty of peace by the Senate 
of the United States. 

The opinion of the Attorney-General is desired upon the 
question when the present war will be at an end. The opinion 
is required because of certain provisions in St. 1898, c. 561, 
relating to the payment of a monthly bounty to soldiers. 

It is sufficient to say, at the present time, that in my opinion 
the war was not ended by the ratification of the treaty of peace 
by the Senate of the United States. When peace is finally 
concluded may be a question to be discussed hereafter, and I 
will consider the matter further if you will call my attention to 
it again after the treaty has been ratified by the Spanish gov- 
ernment. 



HOSEA M. IvNOWLTON, ATTORNEY-GENERAL. 23 

Savings Banks — First Mortgage of Real Estate — 
Property leased for Ninety-nine Years. 

a lessee of land for ninety-nine years, who erects a building thereon, cannot give 
such a mortgage on the building or the land, or both, as savings banks 
must take under a statute allowing them to invest their deposits in first 
mortgages of real estate in this Commonwealth. 

Your letter of February 20 states that: ''It is proposed by to the savings 

. , 1 r Bank Commis- 

certain parties, who are unable to purchase outright a parcel oi sioners. 
land, to take a lease thereof for a term of ninety-nine years, March 4 . 
and to erect thereon a building which may cost one million 
dollars;" and requests the opinion of the Attorney-General upon 
the question whether it would be lawful for a Massachusetts 
savings bank to loan money to the lessee, secured by a mort- 
gage on the building, or land, or both. 

St. 1894, c. 317, provides, in § 21, that deposits of savings 
banks may be invested in "first mortgages of real estate situ- 
ated in this Commonwealth." Unless the property, therefore, 
is real estate, it would not be lawful for savings banks to loan 
money upon it. A lease for any less time than one hundred 
years is personal property. Pub. Sts., c. 121, § 1. Ex parte 
Gay, 5 Mass. 419. The lessor may enter at any time for breach 
of the covenants of the lease, and recover the land free from 
any encumbrance made or suffered by the lessee. The lessee, 
therefore, cannot give a mortgage on the land leased which 
would be a ''first mortgage on real estate." 

If there is no agreement in thfe lease as to whom the building 
shall belong, it is real estate belonging to the lessor, being neither 
a domestic nor a trade fixture. Wall v. Hinds, 4 Gray, 256, 
271. If, on the other hand, there is an agreement in the lease 
that the building, when erected, shall belong to the lessee, it is 
personal property, which the lessee may remove while he is 
in possession, but which he may not remove after his lease has 
expired. Burk v. Mollis, 98 Mass. 55. Moreover, in case the 
lessor enters and terminates the lease for breach of condition 
thereof, the lessee forfeits his right to remove the building. 



24 OPINIONS OF THE ATTORNEY-GENERAL. 

even if there is an agreement in the lease that it shall belong 
to the lessee. Kutter v. Smith, 2 Wall. 491. 

It follows, therefore, that in the case stated it would not 
be lawful for a Massachusetts savings bank to loan money to 
the lessee secured by a mortgage upon the building, or land, 
or both. 



Pauper — Settlement. 

A person who derived a settlement in Boston from his father, which prevented 
him from gaining a settlement there in his own right under St. 1874, c. 
274, is within the exception of St. 1898, c. 425, and his derivative settlement 
stands. 

ki^Jnde^t of' ' Your letter of February 28 requires my opinion upon the 
poor.^**"" settlement of a certain person named therein, the facts being 
March 4. as f ollows I Hc was born in Boston in 1829, and has always 

resided in Boston. He derived a settlement in Boston from 
his father, who died in Boston in 1876, at the age of seventy- 
nine years. His mother died in Boston, at the age of eighty- 
seven years. There was a period of five years between 1872 
and 1877 during which it is admitted that the person in question 
resided in Boston five full years without receiving public aid, 
and paid the necessary number of taxes to give him a settlement 
under the retroactive clause of St. 1874, c. 274. 

That statute, after prescribing certain conditions of settle- 
ment, provides in § 3 that: "No existing settlement shall be 
changed by any provision of this act unless the entire residence 
and taxation herein required accrues after its passage; but any 
unsettled person shall be deemed to have gained a settlement 
upon the completion of the residence and taxation herein re- 
quired, though the whole or a part of the same accrues before 
the passage of this act." Under this statute the person in ques- 
tion could gain no settlement, inasmuch as he already had 
a settlement derived from his father and acquired prior to 1860. 
His derivative settlement from his father prevented him from 
acquiring a settlement in his own right. Salem v. Ipsmch, 
10 Cush. 517, 520. 



HOSEA M. KNOWLTON^, ATTORNEY-GENERAL. 25 

St. 1898, c. 425, defeats all settlements not fully acquired 
subsequent to May 1, 1860, "except where the existence of 
such settlement prevented a subsequent acquisition of settle- 
ment in the same place." The settlement of the person in ques- 
tion acquired before 1860 prevented the subsequent acquisition 
by him of a settlement in the same place. The case, therefore, 
is within the exception of the statute, and the original settle- 
ment stands. 

This conclusion is confirmed by the case of Adams v. Ipswich, 
116 Mass. 570, in which the court (Wells, J.) says: "If the 
older settlement prevented the subsequent acqusition of the 
more recent one, the former is preserved by the exception in 
the St. of 1870." The exception referred to in the opinion of 
the court is similar in its terms to that in the statute of 1898. 



Harbors — Selectmen — Fish Weirs. 

The selectmen of a town have no right to Heense fish weirs in a harbor bordering 
on the town beyond the harbor line. 

Your letter of February 9 requires the opinion of the Attorney- to the Board 
General upon the following question, to wit: "Have the select- LandcmL''" 
men of Provincetown the right to license weirs in the harbor 1899 

Mirch, 29 

beyond the harbor line? " 

The right of controlling and regulating the sea and seashores 
is in the sovereign. Under the early laws of Massachusetts, 
a structure built into the tide water by the owner of the shore 
might be declared a nuisance if it interfered with the rights 
of the public reserved to them by the Colonial Ordinance of 
1641-47. To avoid the necessity of determining the question 
of nuisance in each particular case, the Legislature from time 
to time established lines in certain harbors beyond which no 
wharf or pier might be built into the sea. St. 1837, c. 229, 
fixing the harbor line of the harbor of Boston, was an example 
of this class of legislation. The right of the Legislature to estab- 
lish such lines was sustained in Commonwealth v. Alger, 7 Cush. 
53, which held that a wharf could not be extended beyond the 



26 OPINIONS OF THE ATTORNEY- GENERAL. 

harbor line, even though it appeared that it did not obstruct 
navigation. 

St. 1866, c. 149, established a Board of Harbor Commis- 
sioners, and authorized it, among other things, to prescribe 
harbor lines, beyond which no wharf, pier or other structure 
could be extended into the harbor. The lines so prescribed, 
however, were subject to the approval of the Legislature. Under 
the authority of this statute, the Harbor Commissioners pre- 
scribed lines for the harbor of Provincetown, which were ap- 
proved by the Legislature. St. 1867, c. 268. 

In 1869 an act was passed "to further protect the rights of 
the Commonwealth in tide waters." St. 1869, c. 432. Section 
1 provides: "All authority or license that may be hereafter 
granted ... by the Commonwealth, to any person or corpo- 
ration to build any structure upon ground over which the tide 
ebbs and flows . . . whether it be private property or the prop- 
erty of the Commonwealth, shall be subject to the following con- 
ditions, whether they be expressed in the act or resolve granting 
the same or not, namely, viz.: such license or authority shall 
be revocable at any time, at the discretion of the legislature, 
and shall expire at the end of five years from its date. . . . All 
things done under such license or authority shall be subject 
to the determination and approval of the harbor commissioners. 
... If the legislature shall establish harbor lines within the 
outer line covered by such license or authority, then such license 
or authority shall he construed to he limited hy and not to extend 
beyond such harbor line.^' 

The next general law regulating structures in tide waters 
was St. 1872, c. 236, entitled "An act to regulate the building 
of wharves and other structures in tide waters." Section 2 of 
this act expressly provided that no license for the construction 
of a wharf or other structure below high-water mark should 
have any effect beyond a harbor line, "except in relation to a 
structure authorized by law outside such line." 

The statutes above referred to, which were re-enacted in the 
Public Statutes, show clearly that the privilege of building 
in the sea beyond low-water mark is intended to be carefully 



HOSEA M. KXOWLTON, ATTORNEY-GENERAL. 27 

guarded, and that in harbors no structure can be built beyond 
the harbor line, except by express authority of the Legis- 
lature. 

It remains to be considered whether the statute authorizing 
the construction of fish weirs is to be taken as an exception to 
this uniform course of legislation. St. 1856, c. 50, § 1, as re- 
enacted in Pub. Sts., c. 91, § 70, provides that: "The selectmen 
of a town lying upon tide water may authorize in writing any 
person to construct fish weirs in said waters within the limits 
of such . . . town for a term not exceeding five years: pro- 
vided, such weirs cause no obstruction to navigation, and do 
not encroach on the rights of other persons." It is plain that 
this is not intended as an exception to the general rule. It 
authorized selectmen to grant such licenses, but only in places 
where the building of structures in tide waters is not expressly 
forbidden by other provisions of law. To construe the statute 
otherwise would be to authorize the selectmen, at their discre- 
tion, to nullify the whole course of legislation intended to prevent 
the obstruction of the harbors of Massachusetts, and to give 
to the selectmen powers which are denied even to the Harbor 
Commissioners. 

I understand, however, that it is contended that St. 1881, 
c. 196, § 1 (Pub. Sts., c. 27, § 2), extendmg the boundary lines 
of towns bordering on the sea to the line of the Commonwealth, 
operates to give to towns jurisdiction over tide waters coex- 
tensive with such limits, or one marine league from shore. 
This act, however, was not intended to take away the general 
jurisdiction of the Commonwealth over its tide waters, nor 
to repeal or affect regulations established by the Common- 
wealth affecting them. It did not give towns any property 
rights whatever in the sea, nor enlarge their rights over the sea. 
Its only purpose was to extend the jurisdiction of towns for 
civil and criminal proceedings, so that such jurisdiction should 
be coextensive with that of the Commonwealth. Commonwealth 
V. Peters, 12 Met. 387. Before the statute in question was en- 
acted, the boundaries of counties were already coextensive 
with the limits of the Commonwealth, and the statute which 



28 OPINIONS OF THE ATTORNEY-GENERAL. 

extended the boundaries of towns probably merely affirmed the 
common law giving towns the same coextensive jurisdiction. 
In New York it was early decided that a similar act extending 
the limits of a town over the tide waters did not give the town 
the right to regulate the digging of clams below low-water mark. 
Palmer v. Hicks, 6 Johns. 133. 

This statute cannot be taken to give towns any authority to 
construct fish weirs, where the Commonwealth, in the exercise 
of its jurisdiction over the waters, has forbidden the building of 
any structures whatever. I am of opinion, therefore, that your 
question should be answered in the negative. 



Militia — Provisional Militia. 

A soldier of the active militia, relieved from duty because he is unable to go into 
the United States service with his command, does not forfeit his standing 
in the active militia by enlisting in the provisional militia, and may be ordered 
by the Commander-in-Chief to rejoin his regular company on his return. 

The commander of an organization would not be warranted in discharging such a 
soldier because he enlisted in the provisional militia. 

Men of the provisional militia may be transferred to the active militia by the 
Commander-in-Chief with or without their application or the consent of the 
company commanders from and to whom transfer is desired. 

uint^enerar When, upou the declaration of war by the United States 
March 30. agaiust Spain, many of the officers and privates of the Massa- 
chusetts Volunteer Militia offered their services to the United 
States, a question arose as to the continuance of their stand- 
ing in the State militia. To settle this question, and to en- 
courage enlistments by meml^ers of the militia into the United 
States service, a statute was enacted — St. 1898, c. 428 — pro- 
viding that members so enlisting should not lose their position 
and rank in the militia; but that the officers who so enlisted 
should be granted leave of absence, and the privates should 
be furloughed until thirty days after their discharge from the 
United States service. 

The quota of Massachusetts under the call of the President 
was filled by designating certain regiments and companies of 
the State militia, giving their members the opportunity of enter- 



HOSEA M. KXOWLTOX, ATTORNEY-GENERAL. 29 

ing the service of the United States, while preserving as far as 
possible their regimental and company organization. Nearly- 
all the officers and men of the First Regiment of Heavy Artillery, 
of the Second, Fifth, Sixth, Eighth and Ninth Regiments of 
Infantry and of the Naval Brigade, entered the service of the 
United States under this call, — so many, in fact, that, by order 
of the Commander-in-Chief, dated May 18, 1898, those who 
did not enter the service of the United States were relieved 
from duty until further orders. 

As a conseciuence, the regiments and companies referred 
to were entirely depleted. They were never disbanded, how- 
ever, and the State regimental and company organizations 
remained intact, and their officers and privates still continued 
to belong to them, as State regiments and companies. Those 
in the service of the United States were, by the provisions of 
the statute above referred to, relieved from State duty until 
their completion of such service; and those remaining at home 
by the order of the Commander-in-Chief, were relieved from 
all military duty until the further order of the Commander- 
in-Chief. But none of them were discharged from the State 
militia. 

The same statute (St. 1898, c. 428) authorized the Commander- 
in-Chief to raise and organize provisional companies, to be 
assigned to provisional battalions and regiments. Enlistments 
in such companies were to continue for a period not longer 
than thirty days after the declaration of peace, and the commis- 
sions of all officers elected or appointed for such provisional 
organizations were to expire not later than thirty days after 
the close of the w^ar. Under the general orders above referred 
to, officers and men who had not enlisted in the service of the 
United States, and who were relieved from duty until further 
orders of the Commander-in-Chief, were authorized to enter 
the provisional militia. This order cannot be taken as author- 
izing or requiring re-enlistment. St. 1893, c. 367, § 62, expressly 
provides that: ''No soldier whose term of service remains 
unexpired in one organization shall enlist in another organiza- 
tion of the volunteer militia." The officers and men in question, 



30 OPINIONS OF THE ATTORNEY-GENERAL. 

though reheved from duty, were still in the service of the Com- 
monwealth in the organizations in which they had enlisted. 
They were not discharged from their service in such organiza- 
tions when they entered the provisional militia. They were 
merely relieved from duty for the time being in their old 
companies, and, while so relieved from duty, were allowed to 
join the provisional companies. This the Commander-in-Chief 
had authority to permit. St. 1893, c. 367, § 149, expressly 
authorizes him to ''make regulations for the government of 
the militia in accordance with existing laws." There is no law 
preventing the Commander-in-Chief from relieving a man from 
duty in one company and permitting him to serve in another. 
This does not transfer his membership to the new organization, 
but only his service. A member of the volunteer militia so 
entering the service of the provisional militia by permission of 
the Commander-in-Chief, during a time when he is relieved 
from duty, nevertheless may be ordered to report for duty in 
the original organization at any time. 

The foregoing considerations dispose of the questions sub- 
mitted in your letter of February 28, and I reply to them spe- 
cifically as follows : — 

First. — ''Does a soldier of the active mihtia, relieved from 
duty because he is unable (for reasons) to go into the United 
States service with his command, forfeit his standing in the 
active militia by enlisting in the provisional militia, and can 
such soldier rejoin his company on its return from the Spanish 
war? Or must he be discharged from the provisional militia 
for re-enlistment in the active militia, and perhaps lose thereby 
his continuous service?" 

Such a soldier does not forfeit his standing in the active 
militia by entering the provisional militia, but may be ordered 
by the Commander-in-Chief to rejoin his regular army on its 
return. His service in the provisional militia is subordinate to 
his duty in the active militia. It is not necessary as a pre- 
requisite that he be discharged from the provisional mjlitia. 

Second. — "Would the commander of an organization be 
warranted in discharging a soldier relieved from duty because 



HOSEA M. KNOWLTOX, ATTORXEY-GENERAL. 31 

he could not accompany his company into the United States 
service, because he enhsted in a provisional company, and, 
perhaps, thus deprive him of continuous service?" 

This question must be answered in the negative. 

Third. — "Can men of the provisional militia be transferred to 
the active militia upon their application and the consent of the 
company commanders from which and to which such transfer 
is desired, as is permissible with the active militia?" 

For the reasons above st-ated, such men are subject to the 
orders of the Commander-in-Chief, and may be by him transferred 
to the active militia, either upon their application and the con- 
sent of the company commanders, or by the order of the Com- 
mander-in-Chief without such application. 



Foreign Banking Corporation — Right to file Papers 
WITH Commissioner of Corporations and do Business 
in this Commonwealth. 

The Commissioner of Corporations may, under St. 1894, c. 381, accept the charter 
of a foreign corporation, if the kind of business for which it is organized is one 
the carrying on of which is permitted to domestic corporations under the laws 
of the Commonwealth; and it is not necessary that the statutes of the foreign 
jurisdiction creating it, and defining its powers, duties and liabilities, should 
be the same in all respects as the statutes of tliis Commonwealth relating to 
the same subject. 

A foreign banking corporation may file its papers with the Commissioner of Corpo- 
rations, although the State banking act was made practically inoperative by 
the imposition of a tax of ten per cent, upon the circulation of State banks by 

the federal government. 

« 

Your letter of March 11, enclosing a copy of the charter of ^^^gg^^n^,?™; 
the Bank of Nova Scotia, which has been presented for filing corporations. 
in your office under the provisions of St. 1884, c. 330, requires *^i*;2!L^o. 
the opinion of the Attorney-General whether you are author- 
ized to accept the paper, or are debarred under the provisions 
of St. 1894, c. 381. 

St. 1894, c. 381, provides in substance, in § 1, that it shall be 
unlawful for any corporation of another State or country to en- 
gage or continue in the Commonwealth in any kind of business 
the transaction of which by domestic corporations is not per- 



32 OPINIONS OF THE ATTORNEY-GENERAL. 

mitted by the laws of the Commonwealth; and that the Commis- 
sioner of Corporations shall refuse to accept or file the charter 
of, or accept appointment as attorney for service for, any cor- 
poration doing business in this Commonwealth the transaction 
of which by domestic corporations is not then permitted by 
the laws of the Commonwealth. 

The words "kind of business," as used in this statute, must 
be taken to signify the same general kind of business, and not 
that the statutes of the foreign jurisdiction creating it and defin- 
ing its powers, duties and liabilities are the same, in all respects, 
as the statutes of this Commonwealth relating to the same sub- 
ject. Under the latter construction, very few foreign corpora- 
tions could be permitted to do business in the Commonwealth. 
It is not the duty, therefore, of the commissioner to inquire 
how far the powers, duties and liabilities of the foreign corpora- 
tion are in all respects similar to those of domestic corporation 
of the same character, but only whether the kind of business 
for which it is organized is one the carrying on of which is per- 
mitted to domestic corporations under the laws of the Com- 
monwealth. 

The bank of Nova Scotia is subject to the banking act of 
Canada, enacted May 16, 1890. Section 64 provides as follows: 
"The bank may open branches, agencies and offices, and may 
engage in and carry on business as a dealer in gold and silver 
coin and bullion, and it may deal in, discount and lend money 
and make advances upon the security of, and may take as col- 
lateral security for any loan made by it, bills of exchange, 
promissory notes and other negotiable securities, or the stock, 
bonds, debentures and obligations of municipal and other 
corporations, whether secured by mortgage or otherwise, or 
Dominion, Provincial, British, foreign and other public securi- 
ties, and it may engage in and carry on such business generally 
as appertains to the business of banking; but, except as author- 
ized by this act, it shall not, either directly or indirectly, deal 
in the buying, or selling, or bartering of goods, wares and mer- 
chandise, or engage or be engaged in any trade or business 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 33 

whatsoever; and it shall not, either directly or indirectly, 
purchase, or deal in, or lend money or make advances upon 
the security or pledge of, any share of its own capital stock, 
or of the capital stock of any bank; and it shall not, either 
directly or indirectly, lend money or make advances upon 
the security, mortgage or hypothecation of any land, tenements 
or immovable property, or of any ships or other vessels, or 
upon the security of any goods, wares and merchandise." 

This enumeration makes it clear that the corporation in 
question is authorized to carry on a general banking business. 
This is a business the transaction of which by domestic cor- 
porations is permitted under the laws of the Commonwealth. 
Pub. Sts., c. 118, provides for the incorporation of State banks 
to do a general banking business, and under it corporations 
may be formed for that purpose. The statute has been practi- 
cally inoperative, so far as it authorizes the emission of bank 
bills for circulation, since the enactment of the United States 
statute (Rev. Sts., U. S., § 3412) imposing a tax of ten per 
cent, upon the circulation of State banks. But, notwithstand- 
ing this fact, the Legislature has seen fit to continue the State 
bank law in force, and it cannot be said that the carrying on 
of a general banking business is not permitted by the laws of 
the Commonwealth. 

I am of opinion, therefore, that it is your duty to accept the 
charter of the corporation in question. Whether a law should 
be permitted to continue upon our statute books which is in- 
operative so far as it relates to, domestic corporations, but 
which may be taken advantage of by foreign corporations in 
the manner in which it has been by this corporation, is a ques- 
tion for the determination of the Legislature. 



34 



OPINIONS OF THE ATTORNEY-GENERAL. 



Insurance — Single Hazard — Reinsurance. 

The prohibition of St. 1894, c. 522, § 20, against insuring in a single hazard a larger 
sum than one-tenth of the net assets of the company, is not met by reinsuring 
such hazard so far as to bring the net amount of the risk within the prescribed 
limit. 

Nor does it make any difference that the company taking the risk is one of a syndi- 
cate of companies, with the others of which it has contracts whereby each one 
of them becomes liable for its portion of the risk not exceeding the ten per 
cent, limit. Such a transaction is in fact reinsurance. 



To the Insur- 
ance Commis- 
sioner. 

1899 
March 30. 



St. 1894, c. 522, § 20, as amended by St. 1895, c. 59, § 1, 
provides that: "No insurance company shall insure in a single 
hazard a larger sum than one-tenth of its net assets." To this 
provision there are certain exceptions, one of which is contained 
in the same section, and another in St. 1898, c. 537. 

Your letter of March 23 requires the opinion of the Attorney- 
General upon two c|uestions touching the construction of the 
foregoing statute, to wit: — 

First. — "Whether a company, except as provided in the 
exceptions above noted, violates a statute when it takes an 
amount in excess of one-tenth of its net assets in a single haz- 
ard, if it immediately reinsures such portion of the risk that it 
does not retain for itself an amount in excess of the limit 
prescribed by the law." 

This inquiry is fully answered by Attorney-General Pillsbury 
in an opinion submitted to your department, dated July 29, 
1891 (1 Op. Atty.-Gen. 25), in which he advised the commis- 
sioner that the prohibition against* insuring in a single hazard 
a larger sum than one-tenth of the net assets of the company 
is not met by reinsuring such hazard so far as to bring the net 
amount of the risk within the prescribed limit. 

I see no reason to doubt the soundness of that opinion. 

Second. — "Whether a company violates the statute in ques- 
tion when it takes an amount in excess of the ten per cent, 
limit, if at that time it has a contract with a syndicate of com- 
panies, in which each company agrees with each of the others 
to become liable for an equal part of the amount insured from 
the moment it is bound by either of the companies." 



HOSEA M. KNOWLTOX, ATTORXEY-GEXERAL. 35 

It is stated in your letter, in explanation of this question, 
that the original company issues its policy for the whole amount 
of insurance, and that the share of each member of the syndicate 
in the liability would not exceed the ten per cent, limit. 

The reasons which lead to the conclusion that the prohibition 
of the statute is not met by reinsurance govern this inquiry. 
It is immaterial under what form of contract the company 
writing the policy arranges with other companies to share its 
liability. The transaction is in fact reinsurance. The company 
which writes the contract is alone liable to the insured. He 
has no contractual relations with the other companies in the 
syndicate. 

Massachusetts Reformatory — Authority of Superintend- 
ent TO CONTRACT WITH CONCORD FOR WaTER SuPPLY — 

Nature of a Resolve of the Legislature. 

The authority of the superintendent of the Massachusetts Reformatory to contract 
with the town of Concord to supply the reformatory with water is limited, 
under the provisions of Res. 1894, c. 62, to the execution of a single contract. 

I am unable to answer satisfactorily the first inquiry in your to the com. 

ci^i-i ci'p • missioners of 

letter or the 23d without further intormation as to what took Prisons. 

1899 

place at the termination of the contract referred to in St. March 3 o. 
1884, c. 201, § 11. 

Replying to your second inquiry, I beg to say that in my 
opinion the authority of the superintendent of the Massachu- 
setts Reformatory to contract with the town of Concord to 
supply the reformatory with water, under the provisions of 
Res. 1894, c. 62, was exhausted when he made a contract there- 
for. Resolves are distinguished from acts by being temporary 
in their nature. A bill conferring general authority upon the 
superintendent to contract for water supply would give him 
authority to make new contracts or to renew existing contracts. 
It is otherwise with a resolve. There being nothing in the re- 
solve to indicate that the authority is continuing, it must be 
taken to give authority only for the execution of a single con- 
tract, and does not authorize the superintendent to make a new 
contract at the expiration thereof. 



36 OPINIONS OF THE ATTORNEY-GENERAL. 

Boston Gas Companies — Charters subject to Amendment, 
Alteration and Repeal — Consolidation — Constitu- 
tional Law. 

An act which should authorize the gas companies of Boston, whose charters are 
subject to amendment, alteration or repeal, to consolidate, and provide that, 
unless they did consolidate before a certain date, their charters should be 
repealed on that date, would be constitutional. 

It is doubtful whether the Legislature may delegate to the courts the authority to 
annul the charters, in case the corporations should not consolidate within the 
prescribed time. 



of°Re^r?sent- ^ havG the hoDOF to acknowledge the receipt of the order of 
^^'1899 the House of Representatives, adopted April 12, 1899, request- 

Apni_26. -j^g ^y opinion upon the following questions, to wit : — 

First. — "Whether the provisions of § 11 of the proposed 
act for the consolidation of certain gas companies in the city 
of Boston, submitted in the fourteenth annual report of the 
Board of Gas and Electric Light Commissioners (Pub. Doc. No. 
35), are constitutional, and can be enforced in law or equity." 
Second. — ''Whether a law requiring any two or more gas 
companies to consolidate without the consent of such companies 
can be enforced in law or equity." 

The corporations affected by the proposed act are the Boston 
Gas Light Company, the Brookline Gas Light Company, the 
Bay State Gas Company, the Roxbury Gas Light Company, 
the South Boston Gas Light Company, the Dorchester Gas Light 
Company, the Jamaica Plain Gas Light Company and the Mas- 
sachusetts Pipe Line Gas Company. 

All these corporations, excepting the Boston Gas Light Com- 
pany, were incorporated subsequent to the year 1831, and are 
subject to the provisions of Pub. Sts., c. 105, § 3, which provides 
that: "Every act of incorporation passed after the eleventh 
day of March in the year eighteen hundred and thirty-one 
shall be subject to amendment, alteration or repeal at the pleas- 
ure of the General Court." The Boston Gas Light Company 
was incorporated by St. 1822, c. 41; and there is no provision 
in the charter which, in terms, makes it subject to amendment 
or repeal at the pleasure of the Legislature, nor any provision 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 37 

limiting the duration of the charter. But, by St. 1809, c. 65, 
which was ''An act defining the general powers and duties of 
manufacturing corporations," it was provided (§ 7) that "the 
legislature may from time to time, upon due notice to any corpo- 
ration, make further provisions, and regulations for the manage- 
ment of the business of the corporation, and for the government 
thereof, or wholly to repeal any act, or part thereof, establishing 
any corporation, as shall be deemed expedient." This act was 
in force when the Boston Gas Light Company was incorporated, 
and, in my opinion, is to be taken as limiting the rights conferred 
by its charter. The charters of all the corporations affected by 
the proposed act are subject, therefore, to amendment, alteration 
or repeal at the pleasure of the Legislature. 

It is this power of control over its corporations which is 
invoked in the proposed act. The act provides in § 1 that the 
corporations named may unite and consolidate into one com- 
pany, in the manner and upon the terms and conditions there- 
inafter set forth. By § 2 it is provided that the terms and con- 
ditions shall be agreed upon by the directors of each and all the 
corporations, subject to the approval of a majority of the stock- 
holders of the respective corporations and of the Board of Gas 
and Electric Light Commissioners. The agreement so to be 
executed shall determine the amount of the capital stock, 
bonds and coupon notes to be issued by the new corporation, 
and shall provide for the conveyance of all the real and personal 
estate of the constituent corporations to the new corporation; 
and also the proportion in which' the shares, bonds and coupon 
notes of the new corporation shall be distributed among the 
shareholders and creditors of the constituent corporations. The 
act further provides for the organization of the new corpora- 
tion within thirty days after the execution and approval of the 
agreement provided for in § 2, and that upon the completion 
of such organization the corporate existence of the respective 
constituent corporations shall continue only for the purpose of 
winding up its business ; and that the new corporation shall have 
all the franchises and rights, and be subject to all the duties 
and restrictions of each of the constituent corporations, and 



38 OPINIONS OF THE ATTORNEY-GENERAL. 

of all general laws applicable to gas companies. Thus far the 
act appears to be permissive. Section 11, however, being the 
section referred to in the resolution of your honorable body, 

provides as follows: "If at the expiration of months from 

the passage of this act, any of the companies named in section 
one shall have failed or neglected to execute and complete the 
agreement mentioned in section two in the manner therein de- 
scribed, the board of gas and electric light commissioners shall 
proceed to determine the terms and conditions upon which such 
companies shall be included in the consolidation provided by 
this act, and, for the purpose of determining said terms and 
conditions, may notify such companies to appear before said 
board, to be heard relative thereto. If such companies or any 
of them shall thereafter accept the terms and conditions de- 
termined by the board as aforesaid, the companies so accepting 
shall thereafter be subject to the provisions of this act in all re- 
spects as if the terms and conditions had been agreed to in the 
manner provided in section two. If such companies or any of 

them shall within days after notice thereof fail to accept the 

terms and conditions so determined, the supreme judicial court 
shall, upon petition of said board, declare the charter of the 
companies so failing to be revoked and annulled, and may issue 
such further orders and decrees relative to the property and busi- 
ness of said companies as said board may deem necessary and 
advisable." 

There can be no doubt that, if the legislative body has the right 
to repeal the charter of a corporation, it may provide that the 
repeal of the charter shall be conditional upon the happening of 
some future event. St. 1893, c. 474, is an example of such legis- 
lation. By that statute it was provided that the charter of the 
Bay State Gas Company should be revoked and annulled on the 
first day of December following the passage of the act, unless the 
corporation should, prior to said first day of December, procure 
the cancellation and discharge of a certain obligation issued by 
the company and outstanding at the date of the passage of the act. 

A similar statute, enacted by the Legislature of Connecticut, 
has been sustained by the Supreme Court of that State. Lothrop 



HOSEA M. KNOWLTON, ATTORNEY- GENERAL. 39 

V. Stedman, 42 Conn. 583. The statute in that case provided 
that the charter of a corporation should be repealed on a given 
date, unless before that time the corporation should receive a 
certificate that the deficiency in its assets had been supplied, 
with provision for the determination of any disagreement as to 
the amoimt of its assets by the Supreme Court. Judge Ship- 
man, in delivering the opinion of the court, said: "A valid stat- 
ute may be passed to take effect upon the happening of some 
future event. Certain, or uncertain, it is a law in presenti, to 
take effect in futuro. The event, or change of circumstances, 
must be such as, in the judgment of the Legislature, affects 
the question of the expediency of the law. The Legislature 
in effect declares the law inexpedient if the event should not 
happen, expedient if it should happen. They appeal to nobody 
to judge of its expediency." 

These considerations, in my judgment, are decisive of the 
general inquiry submitted to me. I observe, however, that, 
instead of enacting in express terms that the charter shall be 
repealed, the section provides that the Supreme Judicial Court 
"shall, upon petition of said board, declare the charters of the 
companies so failing to be revoked and annulled." I doubt 
whether this language is sufficient. The Legislature may not, 
in my opinion, delegate to the court authority to annul the char- 
ter of a corporation for failure to perform the acts authorized 
by the proposed statute. The section should be amended so 
that the repeal is the act of the Legislature, and not of the 
court. It was probably intended by the framer to provide for 
a determination by the court of the existence of the facts upon 
the happening of which the charters are to be repealed. This 
the Legislature may do; but the repeal itself must be enacted 
by the Legislature in express terms. 

I therefore answer the questions of your honorable body as 
follows : — 

First. — If the proposed section be so amended as to contain 
an express provision that the charters of the companies enumer- 
ated shall be repealed upon the contingency set forth, such a 
provision will be constitutional, and can be enforced. 



40 OPINIONS OF THE ATTORNEY-GENERAL. 

Second. — A law requiring two or more gas companies to 
consolidate, without the consent of such companies, is not 
within the constitutional power of the Legislature, but a law 
providing that the charters of corporations shall be repealed 
unless they see fit to consolidate, will be constitutional and can 
be enforced. 



Topographical Survey Commission — Boundary Line be- 
tween Massachusetts and Rhode Island — Prescrip- 
tion. 

The Topographical Survey Commission have no authority, under Res. 1897, c. 88, 
to cliange any portion of the boundary line between Massachusetts and Rhode 
Island, as fixed by a decree of the Supreme Court of the United States, in 
compliance with the wishes of certain adjacent inhabitants, who supposed 
they lived in Rhode Island, but who find upon the marking of the line that 
they live in Massachusetts. 

Quaere: Whether Rhode Island, by exercising jurisdiction over a portion of Massa- 
chusetts territory since the decree, and in face of the injunction therein, could 
gain any prescriptive right of jurisdiction over such territory. 

To the Topo- Your letter of April 3 states the following facts : — 

graphical _, . . . . , 

urveycom- ^^e Topographical Survey Commissioners, acting with a 



mission 

1899 
April 29. 



special commission appointed for the purpose by the State of 
Rhode Island, were directed by Res. 1897, c. 88, to re-mark a 
portion of the boundary line between the two States, and to 
substitute in place of certain indeterminate contour lines a 
series of straight lines. This work was carried out by the two 
commissioners, and stone bounds were set, marking the line 
agreed upon throughout its length. After this marking was 
completed, it was brought to the attention of the commissioners 
that certain houses near the boundary line between two portions 
thereof were on the Massachusetts side of the line, although 
their owners had previously supposed that they were on the 
Rhode Island side. 

So much of the resolve as is material to the present question 
is in the following words, to wit: ''Resolved, That the com- 
missioners on the topographical survey and map of Massachu- 
setts are hereby authorized and directed, acting with any officer 
or agent who may be authorized or appointed for a like purpose 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 41 

by the state of Rhode Island and Providence Plantations, to 
locate, define and mark by appropriate monuments a series of 
straight lines along the jurisdictional line between the territory 
of the Commonwealth of Massachusetts and the state of Rhode 
Island and Providence Plantations, from the so-called 'Burnt 
Swamp Corner,' in Wrentham, southerly to the sea, said straight 
lines to follow as near as may be the line established by a decree 
of the supreme court of the United States, dated the sixteenth 
day of December in the year eighteen hundred and sixty-one." 

Your letter further states that the marking of the line as 
defined by the decree of the United States Supreme Court in 
1861 was very imperfect; that at the places referred to there 
were no marks from which the inhabitants could determine the 
exact location of the lines without a comparatively expensive 
survey; and that certain inhabitants of Rhode Island have 
purchased land and erected houses there since 1861, but with- 
out taking measures to determine the exact location of the line 
definitely; and that, as their previous political relations had 
been with Rhode Island, and as the public charges of the Rhode 
Island town were less than those of the town in Massachusetts, 
they had made no effort to secure a change, and still wish to 
continue their present affiliations. The Rhode Island town has 
also extended its water pipe to a point east of the line, and has 
set a fire hydrant there, and maintains the highway as far as the 
water pipe extends. Your letter further states that, in view 
of these facts, the Rhode Island commissioners suggest that 
such action be taken as will modify the line at these points to 
conform to the wishes of such inhabitants, and that the line 
decreed by the Supreme Court in 1861 has been modified by the 
action of these people and the authorities of the two towns. 

Your letter requests the Attorney-General to advise the com- 
mission as to its authority in the matter, and upon the question 
whether any claim of adverse possession is valid to the extent 
of modifying the line laid down by the Supreme Court. 

It appears that the line fixed by the decree of the Supreme 
Court in the locality in question was a straight line between two 
fixed points, and that the territory in question is upon the Massa- 



42 OPINIONS OF THE ATTORNEY- GENERAL. 

chusetts side of such straight line. By that decree the State of 
Rhode Island was perpetually enjoined and restrained from 
exercising jurisdiction eastwardly of said line, and the State of 
Massachusetts was likewise enjoined and restrained from exer- 
cising jurisdiction westwardly of said line. Permanent stone 
monuments were ordered by the decree to be erected at the 
termini of these straight lines, and the decree in that respect 
has been complied with. 

I do not deem it necessary, for the purpose of answering your 
question, to determine whether any rule of prescription is appli- 
cable between two States, to the extent that property within the 
borders of one State can be acquired by the prescribing State. 
The question is discussed to some extent in Rhode Island v. 
Massachusetts, 15 Peters, 233, 273. Although that case deter- 
mined only that the ordinary rule of prescription as between 
individuals does not apply to sovereign States, and leaves it 
somewhat uncertain as to whether there can be any such thing 
as obtaining territory by prescription in such cases, I think the 
reasoning adopted by the court leads to the conclusion that it 
would be difficult for a State to establish a claim to territory in 
such a way. Moreover, it may be considered as at least doubt- 
ful whether title by prescription could be acquired under any 
circumstances, in the face of a perpetual injunction of the court 
binding upon the parties to the controversy. 

However this may be, I am clearly of the opinion that the 
resolve under which you and the other commissioners act does 
not confer upon you jurisdiction to pass upon any such question. 
The decree of the Supreme Court of the United States fixed the 
line. That being so, your only duty is to determine the line so 
fixed, and to mark it by suitable bounds. If, for any reasons, the 
line in the locality in question should be changed to conform to 
the wishes of the people, affected, action to that end should be 
taken by the States themselves. 

Your duties are, in some though not in all respects, analogous 
to those of selectmen of towns when perambulating lines between 
towns, whether in this State or upon the borders of another 
State, under the provisions of Pub. Sts., c. 27, §§ 3 and 6. It is 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 43 

well settled that in the performance of those duties selectmen have 
no authority to change the boundaries or to adjudicate upon the 
limits of towns, but only to ascertain existing lines. Common- 
wealth V. Heffron, 102 Mass. 148. How far you might be author- 
ized to determine a line left in doubt under the decree of the 
court, it is unnecessary to consider. The facts submitted to me 
show that there is and can be no doubt as to the line intended 
in the decree. 



Savings Banks — Authorized Investments — Bonds of the 
Chicago, Burlington & Quincy Railroad Company. 

In determining whether the bonds of the Chicago, BurUngton & Quincy Railroad 
Company are investments which savings banks are authorized to take by 
St. 1899, e. 269, payments to sinking funds and interest upon sinking funds 
are to be considered as earnings of the company. 

Your letters of May 3 and May 13 require the opinion of the TotheCom- 
Attorney-General upon the question whether the bonds of the savings 
Chicago, Burlington & Quincy Railroad Company are, on the ^^^'^\. 



facts stated in your letters, investments which savings banks 
are authorized to take under the acts of the Legislature passed 
this year. 

The statute referred to (St. 1899, c. 269) provides that, in addi- 
tion to the investments already authorized, savings banks and 
institutions for savings may invest their deposits and the income 
derived therefrom in the bonds of certain railroads specified in 
the act, including among them the* Chicago, Burlington & Quincy 
Railroad Company; ^^ provided, . . . that each railroad whose 
bonds are hereby authorized for investment shall have earned 
and paid regular dividends on all its issues of capital stock of 
not less than four per cent, each fiscal year for the ten years 
next preceding such investment." 

It appears from your letters that the only doubt that exists is 
in relation to the net income of the railroad in question for the 
year 1896. The statement for that year, as submitted in your 
letter of May 13, is as follows: — 



May 17. 



44 OPINIONS OF THE ATTORNEY-GENERAL. 

Net earnings from operating, ..... $11,515,984 68 

Miscellaneous income, ....... 358,740 05 

Land sales, 31,583 35 

Income from securities in sinking funds, . . . 478,153 78 



$12,384,461 86 
Payments: — 

Interest on bonds, . . . $8,252,778 08 
Rent of tracks, etc 409,275 15 



8,662,053 23 

$3,722,408 63 
Dividends, 3,280,111 00 



Surplus, $442,297 63 

Although this statement shows a surplus of $442,297.63, it in- 
cludes income from securities in sinking funds to the amount of 
$478,153.78, and it does not include payments by the corporation 
to its sinking fund during the year from earnings of the road to 
the amount of $777;784.56. The report of the directors of the 
corporation for the year 1896 includes the payments into the sink- 
ing fund among the expenses of the road, and omits the income 
from sinking fund securities, and thus shows an apparent deficit 
after the payment of a dividend of four per cent. 

The precise question proposed, therefore, is whether payments 
to sinking funds should be charged to income, and interest earned 
on sinking funds held by the company should be added thereto. 
If such payments are to be charged to income, and the interest 
upon sinking funds is not to be included in the income, then there 
is a deficit, and the company has not brought itself within the 
limits of the proviso above quoted; otherwise, it has. 

A railroad may be said to have earned its dividend when its in- 
come from its property and business exceeds the amount of its 
fixed charges, including operating expenses and interest on its 
debt, by more than the amount of the dividend. The payment, 
in whole or in part, by the company of a pre-existing debt is no 
part of the expenses which are to be deducted in determining the 
question of its earnings for any given year. The company is 
neither better nor worse off by the payment of its debts or any 
portion of them. It might well use all its gross earnings in any 
given year for the payment of maturing bonds, and still be war- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 45 

ranted in borrowing money temporarily to pay a dividend to 
its stockholders. It would be as well able to pay a dividend as 
it would have been if it had not paid its debts, but had used its 
income for the purposes of dividend. The debts of a railroad 
corporation represent, ordinarily, and perhaps in all cases, that 
portion of the cost of the road which is not paid for. If a road 
does not earn dividends until the expense of the cost of the road 
is paid, there is probably not a road in the country which could 
properly be said to earn the dividends it pays from year to year. 
For example, if a road were built wholly upon credit, and earned 
in the first five years enough to pay for the cost of the road over 
and above its operating expenses, it would make no difference 
whether the amount so earned should be appropriated wholly 
to pay the debt, or in part to pay the debt and the balance to 
pay dividends. In either case it earned enough to pay divi- 
dends. In other words, the net earnings, whether of a railroad 
or of any other corporation, or even of an individual, are none 
the less real, whether invested in the payment of debts or used 
for other purposes. If, in the case of a corporation, they are 
used to pay dividends and not debts, they are still earned. 

I understand this principle to be universally recognized as 
sound. It follows that the same rule should apply to pay- 
ments to sinking funds. A sinking fund is merely a sum of 
money set aside to pay a debt. It remains the property of 
the company, and, although it may be pledged for the payment 
of the debt, as I understand to be the case here, payments to 
such fund do not weaken the earning capacity of the road, any 
more than would the payment of the debt itself. If, instead 
of being appropriated to sinking funds, the amount had been 
used for the payment of a portion of its bonds, the result would 
be the same, and would bring the case within the doctrine above 
stated. 

So, too, with earnings from sinking funds. Such earnings 
are from the property of the road, and are no less earnings 
than those which accrue from other parts of its plant. They 
belong to the credit side of the earning account, and, whether 
added to the sinking fund itself, or used to pay interest on a 
debt (as I understand may be the case here), are a part of the 



46 OPINIONS OF THE ATTORNEY-GENERAL. 

income of the road, and are to be considered in ascertaining 
the total amount of its net earnings. 

I am of opinion, therefore, upon the facts stated, that the 
Chicago, Burlington & Quincy Railroad Company earned and 
paid a regular dividend of four per cent, in the year 1896, within 
the meaning of the statute referred to. I am informed that no 
question arises upon any other years; and it follows that its 
bonds are a lawful investment under the existing law for savings 
banks and institutions for savings. 



State Board of Health — Authority to extend Time orig- 
inally FIXED FOR Discharge of Sewage of Pittsfield 

INTO HOUSATONIC RiVER. 

The State Board of Health did not exhaust its authority, under St. 1890, c. 357, § 1, 
by approving a general plan for the construction of a system of sewerage for 
the city of Pittsfield, and may entertain a petition by the city for an extension 
of the time originally fixed for the discharge of sewage into the Housatonic 
River. 

To^t^^e State The city of Pittsfield has applied to the State Board of Health 
^im^' for an extension of time during which sewage may be discharged 

Majos. ^j^^-Q ^Yie Housatonic River, and the State Board of Health re- 

quests the opinion of the Attorney-General upon the question 
whether it has a right to make such extension. 

St. 1890, c. 357, § 1, provides: "The city of Pittsfield, upon 
the organization of its municipal government, is hereby author- 
ized, through a board of commissioners to be elected as herein- 
after provided, to lay out, construct and maintain a system or 
systems of sewerage and sewage disposal for said city in accord- 
ance with any general plans which have been or may be approved 
by the state board of health." On May 12, 1891, under the 
authority of this act, the Board of Health approved a general 
. plan for a system of sewerage and sewage disposal, which pro- 
vided for the permanent disposition of the sewage by intermit- 
tent filtration through certain areas of upland, and allowed the 
temporary discharge of the sewage into the Housatonic River 
during the construction of the works; but provided that such 
discharge should not continue after June 1, 1900. The city 
now desires to continue the discharge after that date. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 47 

The question upon which an opinion is requested is, whether 
the Board of Health, by approving a general plan once, pro- 
viding that the temporary discharge into the river should not 
continue after 1900, thereby exhausted its authority, so that it 
cannot now entertain a petition by the city for an extension 
of the time during which sewage may be discharged into the 
river. 

If the Board had the right to authorize for any period of time 
the discharge of sewage into the Housatonic River, I have no 
doubt of its authority to authorize an extension of the time so 
limited. The statute gives to the Board authority to approve 
the general plans for the construction of a sewerage system in 
the city of Pittsfield. That authority is not, in my judgment, 
exhausted l)y a single act of approval. Modifications of the gen- 
eral plan may be shown to be necessary; and I cannot believe 
it to be the intention of the act that the State Board, having 
once approved a plan submitted to it, cannot for good reasons 
approve a modification of the original plan. The act does not 
contemplate a single act of jurisdiction upon the subject, whereby 
the authority of the Board is exhausted, but a general super- 
vision, extending as far as may be necessary to the accomplish- 
ment of the work proposed. 

If it may act, from time to time, in relation to the approval 
of general plans, it may, in my judgment, also act to extend the 
time approved for the temporary discharge of sewage made 
necessary by the execution of such plans. 



Pilots of Boston Harbor — Regulation to combine Pilot 
Boats and Pilotage Fees. 

The regulations for the pilotage of Boston harbor, annexed to St. 1862, c. 176, and 
expressly continued in force bj^ Pub. Sts., c. 70, § 40, forbid the commis- 
sioners of pilots to combine the pilot boats and earnings, so that all the Boston 
pilots will receive the same amount. 

Your letter of March 15 requires the opinion of the Attorney- to the piiot 
General upon the question whether your Board has the right sioners." 
"to combine the pilot boats and earnings, so that all the Boston May 25 . 
pilots will each receive the same amount." 



48 OPINIONS OF THE ATTORNEY-GENERAL. 

The regulations for the pilotage of Boston harbor, annexed 
to St. 1862, c. 176, are expressly continued in force under the 
provisions of Pub. Sts., c. 70, § 40. Among those regulations 
is the following: "Any commissioned pilot for the harbor of 
Boston, that may be found mating or combining, or in any way 
interested with any other pilot in the business of pilotage, 
except with those pilots belonging to the same boat with him- 
self, shall be liable to forfeit his commission. The obvious pur- 
pose of this regulation, in connection with the statutes (Pub. Sts., 
c. 70, §§ 25, 26 and 27) which make the pilotage fees payable 
to the first pilot offering his services, is to secure the vigilance 
and attention to duty which comes of competition and rivalry. 
It would be otherwise if a combination were made by which pilots 
were assured of their fees, whether they were diligent or not. 

Pilots, therefore, have no right to combine their earnings ; much 
less has your Board, charged with the duty of enforcing the law, 
the right to establish by regulation what would amount practi- 
cally to a repeal of the provisions I have referred to. 



Public Records — Preservation of Town Records — Duty 
OF Selectmen. 

The duty imposed upon selectmen by St. 1897, c. 439, § 10, to provide fire-proof 
vaults for the public records of the town, is not conditioned upon action or 
appropriation by the town, and such officers may incur the expense of com- 
pliance with the law, and the city or town is obliged to reimburse them. 

To the Com- The dutv resting upon selectmen by St. 1897, c. 439, § 10, to 

missionerof J & i J 7 ; o ; 

RecOTds "provide and maintain fireproof rooms, safes and vaults" for 

May 26. ^^c keeping of the public records of their towns, is not condi- 

tioned upon appropriation for that purpose by the town or 
action thereto by the town in a town meeting. It rests upon the 
town officers. I have heretofore advised you, in a letter dated 
September 21, 1897 (1 Op. Atty.-Gen. 484), that a person upon 
whom such a duty rests may incur the expense of compliance 
with the law, and that the city or town is obliged to reimburse 
him therefor. The same principle applies in the case submitted. 



HOSEA M. KXOWLTOX, ATTORNEY-GENERAL. 49 

If ^ou are unable to enforce the provisions of the statutes 
relating to the preservation of public records, it is your duty 
to report the matter to the Attorney-General, with the facts, 
that he may take such action as he thinks proper in the premises. 



State Highways — Expense of Repairing when occupied 
BY Street Railway Tracks. 

St. 1898, c. 578, relieves street railway companies from the duty formerly imposed 
upon them of keeping in repair a portion of the streets in which their tracks 
are located, and the Commonwealth must bear all the expense of repairing 
State highways occupied by street railway tracks, although the towns in 
which such highways are receive the tax which the statute of 1898 imposes 
upon the street railway companies in substitution for the duty of keeping in 
repair a portion of the streets occupied by their tracks. 

Your letter of April 17 requires the opinion of the Attorney- to the state 

^ . ^ . ^ -^ Highway 

General upon the following question: ''If repairs are necessary commission. 
on or beside a street railway located on a State highway, on that ^^^^ '^^ - 
part of the road constructed by the street railway company, is 
the street railway company, the town in which the highway lies, 
or this commission, obliged to bear the expense of making such 
repairs?" 

The inquiry discloses an apparent omission in the recent legis- 
lation touching street railways, which your commission may 
deem it proper to call to the attention of the Legislature. St. 
1898, c. 578, radically changed the duties and obligations of 
street railway companies in reference to the repair of the streets 
occupied by their tracks. Under the prior law (Pub. Sts., c. 113) 
it was the duty of the street railway company to keep in repair 
the portion of the highway between its tracks, and in unpaved 
streets a space of eighteen inches on each side of the portion 
occupied by its tracks. But by the later statute (St. 1898, 
c. 578, § 26) street railway companies are relieved from the duty 
of keeping in repair any portion of the streets occupied by their 
tracks. In substitution therefor, provision is made in §§ 7, 8, 9 
and 10 for the payment of an annual tax by street railway com- 
panies to the cities and towns in which their tracks are situated. 
This tax is to be applied by such cities and towns (§ 10) " towards 



50 



OPINIONS OF THE ATTORNEY-GENERAL. 



the construction, repair and maintenance of the pubUc ways, 
and removal of snow therefrom, within such cities and towns." 

The provisions of the statute of 1898, however, make no refer- 
ence to State highways. The statutes relating to such ways im- 
pose upon the Commonwealth the whole duty of keeping them in 
repair. A State highway having been laid out and constructed by 
the State Highway Commission, it is to be "kept in good repair 
and condition as a highway by said commission at the expense of 
the Commonwealth." St. 1897, c. 355, § 1. Inasmuch as the tax 
imposed under the provisions of the statute of 1898 is for the pur- 
pose of keeping the way occupied by a railway company in repair, 
it would seem equitable that so much of the tax as represents 
those of the ways in a municipality which are State highways 
should be paid to the Commonwealth. 

The statutes do not so provide, however. On the contrary, as 
they stand, I am constrained tc advise you that the towns may 
receive the whole tax, while "the duty of repairing State highways 
rests upon the Commonwealth, without right of reimbursement 
either from the municipality or from the street railway company. 



To the acting 
executive 
officer of tlie 
Dairy Bureau 
of the State 
Board of 
Agriculture. 

1899 
June 1. 



Analysis of Milk Samples — Person to be dealt with — 
Attorney-General. 

The word "analysis," as used in St. 1899, c. 169, § 1, is to be interpreted as signi- 

f jdng the result of the analysis. 
That statute requires only that the result of whatever, if any, analysis is made by 

the authority of the Dairy Bureau should be communicated to the person 

from whom the sample is taken. 
The person to be dealt with by the Dairy Bureau is the person who would be legally 

responsible in the event of prosecution. 
The Attorney-General will not advise a State Board what will be the effect upon 

proceedings in court instituted by it of its compliance or non-compliance with 

certain provisions of law. It is the business of the Board to comply with the 

law. 

Your letter of May 26 requires my opinion upon certain ques- 
tions relating to the construction of St. 1899, c. 169, § 1, which 
is as follows: "Whenever the state board of health, dairy bureau, 
or other state or city authority obtains a sample of mUk for 
inspection, by taking, purchase or otherwise, the analysis of said 



HOSEA M. KNOWLTOX, ATTORNEY-GENERAL. 51 

sample shall, within ten days of the procurement thereof, be sent 
to the person from whom the sample was obtained." 

The questions submitted are as follows : — 

First. — "An analysis is a process or an operation, and cannot 
be sent to any one by mail, messenger or otherwise. It was 
doubtless the intent of the Legislature to order the sending of 
the statement of the res^dt of the analysis. Is the law null and 
void by reason of requiring an impossibility, or shall we comply 
with what we assume to be its evident intent?" 

Statutes are to be construed, if possible, in such a way as to 
make them intelligible and practicable. It was obviously not the 
intention of the Legislature to require the operation itself to be 
sent to the person from whom the sample was obtained. Such a 
construction would be absurd. The word "analysis," as used in 
the section, is to be interpreted as signifying the result of the 
analysis. 

Your letter further states that samples of milk taken by your 
inspectors "are subjected to preliminary tests for the purpose 
of weeding out the samples which are above suspicion, and stop- 
ping further expense so far as they are concerned," and that 
suspicious samples go to the chemist, in order that the chemist 
may do various things according to circumstances; that "he may 
make no analysis at all, but test the milk for the presence of 
preservatives;" or "he may merely evaporate the water, to 
ascertain the percentage of total solids;" or in some cases he 
may make further determination of the amount of fat and of 
ash; but that in no case is a complete analysis made. 

Upon these facts you inquire (second and third) whether the 
law requires you to change your practice, and make an analysis 
of every sample that comes into your possession, or will the re- 
quirements of the law be met by a partial analysis of the sample, 
— that is, so much of an analysis as you would make if enforcing 
the laws against adulterated or low-standard milk. 

The law does not impose upon you the duty of complete 
analysis. It only requires you to report to the person from whom 
you took the sample the result of whatever, if any, analysis is 
made by authority of your Board. 



52 OPINIONS OF THE ATTORNEY-GENERAL. 

A further question contained in your letter is as follows : — 

Fourth. — "Are the words Hhe person from whom the sample 
was taken ' to be construed literally, said person being frequently 
a driver, salesman, clerk or waiter, or does the law mean the per- 
son whom we would hold legally responsible in the event of prose- 
cution, — the proprietor or manager of the business?" 

I am of the opinion that the intention of the law is carried out 
if you deal with the person who would be legally responsible in 
the event of prosecution. 

Your fifth question does not, in my judgment, call for a reply. 
It calls for my opinion upon the effect upon proceedings in court 
of compliance or non-compliance with certain provisions of the 
law. It is the business of the Board to comply with the law. It 
is the business of the courts to deal with the cases that are 
presented. How far compliance or non-compliance with the law 
may affect the decision of the courts in prosecutions instituted 
by you is a matter for judicial determination. 



Retired Justice of Supreme Court — Salary. 

It was not the intention of the Legislature to terminate, by St. 1899, c. 310, the 
salary of a retired justice of the Supreme Court, to which he was entitled by 
St. 1885, c. 162. The act of 1899 is to be taken as a continuance, and not as 
a repeal, of the older statute. 

Such salary shall be certified as payable under the provisions of the statute of 1899. 

To the The opinion of the Attorney-General is required upon the ques- 

Auditor. . \ .... . . . ,.,,., 

1899^ tion whether further legislation is necessary, m view or the fol- 
lowing facts : — 

St. 1885, c. 162, provides that: "Any justice of the supreme 
judicial court . . . who shall resign his office, shall during the 
residue of his natural life receive three-fourths of the salary 
which was by law payable to him at the time of his resignation." 

By St. 1887, c. 420, a similar provision was made for the jus- 
tices of the Superior Court, excepting that the amount to be 
paid annually upon their retirement should be one-half of the 
salary payable at the time of such retirement. 



HOSEA M. KNOWLTOX, ATTORNEY-GENERAL. 53 

A justice of the Supreme Judicial Court retired while the act 
first above quoted (St. 1885, c. 162) was in force, and became 
entitled to and has hitherto received the annual salary provided 
for in that act. 

An act of the present Legislature (St. 1899, c. 310) provides 
in the first section that: "A justice of the supreme judicial court 
or of the superior court who shall resign his office, . . . shall, 
during the remainder of his natural life, receive an amount 
equal to three-fourths of the salary by law payable to him at the 
time of his resignation." The effect of this section is to increase 
the amount payable to the justices of the Superior Court, and to 
continue the existing provisions for justices of the Supreme Judi- 
cial Court. Section 3 of this act expressly repeals the former 
acts, including the one under which the retired justice in question 
has hitherto been paid. 

Your question is, whether the repealing clause of the act of this 
year has taken away the authority for the payment of the salary 
to the retired justice who has hitherto been receiving a salary, the 
law authorizing such salary having been expressly repealed. 

"It is a familiar rule of construction, that when statutes are re- 
pealed by acts which substantially retain the provisions of the old 
laws, the latter are held not to have been destroyed or interrupted 
in their binding force. 'In practical operation and effect they 
are rather to be considered as a continuance and modification of 
old laws, than as an abrogation of those old, and the re-enactment 
of new ones. ' Shaw, C. J., in Wright v. Oaklij, 5 Met. 400, 406. " 
United Hebrew Benevolent Association v. Benshimol, 130 Mass. 
325, 327; Endlich on the Interpretation of Statutes, § 490. 

The rule thus stated applies to the present case. It was not 
the intention of the Legislature, even if it were within its constitu- 
tional power (which may be questioned), to terminate the salary 
of the retired justice who had become entitled thereto under the 
law repealed. The act of this year is to be taken as a continu- 
ance, and not as a repeal, of the older statute. 

The salary should be certified by your office as payable under 
the provisions of the statute of this year. 



54 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Chief 
of the Massa- 
chusetts Dis- 
trict Police. 

1899 
June 16. 



Labor — Corporation — Coercion of Employee into Con- 
tract NOT TO JOIN Labor Organization. 

A requirement by a corporation tliat its employees sliall agree, as a condition of 
employment, not to talie any action, secretly or otherwise, either by them- 
selves or by joining with others, with the intent to interfere with the continu- 
ous running of the corporation's business, is not in violation of St. 1894, 
c. 508, § 3, providing that no corporation shall coerce or compel any person 
into an agreement not to join any labor organization, as a condition to secur- 
ing employment or continuing in the emplojTxient of such corporation. 

St. 1894, c. 508, § 3, so far as the same is material to the ques- 
tion submitted in your letter of June 9, is as follows: ''No . . . 
corporation . . . shall coerce or compel any person or persons 
into any agreement, either written or verbal, not to join or be- 
come a member of any labor organization, as a condition of such 
person or persons securing employment or continuing in the 
employment of any such . . . corporation." In the case stated 
by you in your letter a certain corporation has caused notice to 
be posted, containing, among other things, the following: — 

The proprietors of this factory hereby announce to all who desire to 
contract for the performance of any labor therein, that after prices, 
terms and conditions of said labor are mutually agreed to, each shall con- 
sent in writing to the following : — 

Having agreed to labor in the factory at — until November 

19, 1899, upon certain prices and terms, and with full knowledge of con- 
ditions existing in factory, I hereby further agree that I will not, until 
November 19, 1899, either by myself or joining with others, take any 
action, secretly or otherwise, with the intent to interfere with the con- 
tinuous running of the factory ; and that I will not recognize any authority 
which makes requests or gives orders contrary to the letter and spirit of 
this agreement. 

I am of opinion that this notice does not constitute a violation 
of the statute above quoted. It may, perhaps, be in violation of 
the intent of the framers of the act; but penal statutes are to be 
construed strictly, and their language is not to be extended by 
implication. The prohibition of the statute is against coercing 
a person into agreeing not to join a labor organization. The 
notice provides that the person accepting employment shall not 
take any action which shall interfere with the running of the fac- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 55 

tory, and that he will not recognize any authority which makes 
requests or gives orders contrary to such agreement. Even if it 
be true that labor organizations may see fit at times to attempt 
interference with the continuous running of the business of em- 
ployers, the notice is, nevertheless, not in terms within the pro- 
hibition of the statute. An agreement not to do a specified thing 
is not, in construing a penal statute, equivalent to an agreement 
not to join an organization which may perhaps seek, as such an 
organization, to do the thing the employee, by accepting the em- 
ployment, has agreed not to do. 



Foreign Corporation — Manufacturing and selling Intox- 
icating Liquors — Admission to do Business in this 
Commonwealth. 

A domestic corporation may, if duly licensed, sell intoxicating liquors wathin the 
Commonwealth. A foreign corporation, one of the purposes of which is the 
sale of intoxicating liquors, cannot be said to be carrying on a business 
the transaction of which by domestic corporations is forbidden in this Com- 
monwealth; and it is the duty of the Commissioner of Corporations to accept 
and file the papers of such corporation. 

Your letter of June 2 states that a foreign corporation, or- to the com- 
ganized for the purpose of manufacturing and selling intoxicating corporations, 
liquors, has applied for permission to file its papers with your Juneie. 
office, under the provisions of St. 1884, c. 330. The opinion of 
the Attorney-General is requested upon the question whether it is 
the duty of the commissioner to refuse to file such papers, as 
being prohibited by St. 1894, c. 381. 

The latter statute provides as follows: "It shall be unlawful 
for any corporation, association or organization of another state 
or country, except life insurance companies as provided in chap- 
ter two hundred and fourteen of the acts of the year eighteen 
hundred and eighty-seven, to engage or continue in the Com- 
monwealth in any kind of business the transaction of which by 
domestic corporations is not permitted by the laws of the Com- 
monwealth. The commissioner of corporations . . . shall refuse 
to accept or file the charter, financial statement or other papers, 
or accept appointment as attorney for service for any corporation, 



56 OPINIONS OF THE ATTORNEY-GENERAL. 

association or other organization doing a business in this Com- 
monwealth, the transaction of which by domestic corporations 
is not then permitted by the laws of the Commonwealth." 

In a letter to you dated January 2, 1896 (1 Op. Atty.-Gen. 304), 
I stated it as my opinion that a corporation organized under 
the general laws may not sell intoxicating Uquors in this Com- 
monwealth. In the recent case, however, of Enterprise Brewing 
Co. V. Grime, 173 Mass. 252, the Supreme Judicial Court has 
determined otherwise. The corporation in question in that case 
was formed for the purpose of manufacturing and selling beer, 
ale and malt liquors. But the opinion of the court proceeds 
upon the ground that a license to sell intoxicating liquor may be 
lawfully granted, under the provisions of our statutes, to a cor- 
poration. Yielding to the authority of that decision, I am con- 
strained, therefore, to advise you that a domestic corporation 
may, if duly licensed, sell intoxicating liquors within the Common- 
wealth. That being so, and it appearing that one of the purposes 
of the foreign corporation in question is to sell intoxicating 
liquors, it cannot be said to be carrying on a business the trans- 
action of which by domestic corporations is forbidden in this 
Commonwealth. If other provisions of the law are duly com- 
plied with, it is your duty to file the papers of the corporation 
in question. 



Metropolitan Park Commission — Authority to erect 
Buildings without Permits from Local Authorities. 

The Metropolitan Park Commission may erect buildings on metropolitan park 
reservations within the limits of the city of Boston without obtaining build- 
ing permits from the local authorities. 

To the Metro- Your letter of June 19 states that the Metropolitan Park Com- 

pobtan Park j-v^^ * i 

Commission, j^-^iggjon has made arrangements for the erection of a building 
june^i. ^^ ^YiQ Charles River reservation, a tract of land owned by the 

Commonwealth, and in charge of the commission. The opinion 
of the Attorney-General is requested upon the question whether 
it is necessary for the Board to obtain building permits of the 
city of Boston. 
The statutes creating the Metropolitan Park Commission give 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 57 

the Board power to erect buildings. St. 1894, c. 288, § 3; St. 
1894, c. 483, § 3; St. 1895, c. 450, § 1. The parks are the prop- 
erty of the Commonwealth; and the Board, in erecting buildings 
thereon, acts as the agent of the Commonwealth in exercising the 
authority of the sovereign over its own property. Its acts are 
the acts of the Commonwealth. In the exercise of the authority 
thus conferred upon it, it is not deemed to be subject to regula- 
tions affecting the citizens of the Commonwealth, unless made 
applicable to its proceedings by clear intendment of the statute 
establishing such regulation. 

St. 1892, c. 419, and acts in amendment thereof, regulate the 
erection of buildings in the city of Boston. These statutes pro- 
vide, among other things, for the establishment by the city of 
Boston of a department for the inspection of buildings, in charge 
of a person styled an inspector of buildings. The inspector shall 
not give a permit for the erection of any building until he has 
become satisfied that the building has sufficient strength, and 
that means of ingress and egress are sufficient. No building may 
be erected without such permit from the inspector. An applicant 
for a person whose application has been refused may appeal 
to a board of appeal provided by the statute. The statutes 
contain other minute provisions relating to the strength of tim- 
ber to be used, the weight of iron, the size of columns and the man- 
ner of construction of brick work, the compliance with which 
may be enforced by the inspector of buildings. A person violat- 
ing the provisions of these statutes may be punished by a fine. 

It is impossible to suppose that tl^e Legislature by these enact- 
ments intended to limit the authority of the Commonwealth 
over its own property. The statutes are designed to secure the 
safety of citizens having occasion to occupy the buildings. It 
is not to be presumed, however, that the Commonwealth will 
disobey its own laws, nor that it is necessary that a local officer 
should oversee the work of the agents of the Commonwealth in 
the carrying on of the work of the Commonwealth itself. See 
1 Op. Atty.-Gen. 290. 

I am of opinion that the building laws relating to the city of 
Boston have no application to the erection of buildings by the 
Metropolitan Park Commission. 



58 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Board 
of Gas and 
Electric Light 
Commis- 
sioners. 

1899 
June 27. 



Gas Company — Business carried on beyond Limits of 
Commonwealth — Approval of Gas and Electric Light 
Commissioners to Issues of Stock and Bonds. 

A gas company organized under the general laws of this Commonwealth is subject 
to the provisions of St. 1894, c. 450, requiring the approval of the Board of 
Gas and Electric Light Commissioners to issues of stocks and bonds, although 
all its business is carried on outside the limits of the Commonwealth. 

The Iowa Light, Heat and Power Company was organized 
under the provisions of the general laws of Massachusetts. Its 
purpose is stated in its articles of incorporation to be, among 
other things, that of " purchasing or constructing, holding, 
maintaining and operating plants for the production hi light, 
heat and power, by means of gas, electricity, etc." The capital 
stock is fixed at $50,000. The corporation is not engaged in 
business in this Commonwealth, but owns and operates an 
electric light plant in Marion, la. The corporation has requested 
your commission to approve its issue of stock and bonds, under 
the provisions of St. 1894, c. 450, — one of the statutes com- 
monly known as the anti-stock-watering laws. The opinion of 
the x'Vttorney-General is requested upon the question whether 
that statute requires you to approve the proposed issue in the 
case of the corporation, in question, in view of the fact that it 
carries on no business in this Commonwealth. 

The statute authorizing the formation of gas companies under 
general laws (Pub. Sts., c. 106) does not in terms limit the opera- 
tions of companies so formed to the Commonwealth. On the 
contrary, § 50 of that chapter provides in terms that: "Every 
corporation which is subject to this chapter may in its corporate 
name purchase, hold, and convey such real and personal estate 
as is necessary for the purposes of its organization; may carry 
on its business, or so much thereof as is convenient, beyond the 
limits of the commonwealth, and may there purchase and hold 
any real or personal estate necessary for conducting the same." 

It is true that many of the provisions of the statutes relating 
to gas and electric light companies are obviously limited to com- 
panies doing business within this Commonwealth. For example. 



HOSEA M. IvNOWLTON, ATTORNEY-GENERAL. 59 

St. 1885, c. 314, § 9, provides that the authorities of a town in 
which a gas company is located may complain to your Board 
of the quality or price of gas delivered, and thereupon the Board, 
after hearing, may make such order in relation to price or quality 
as it thinks proper. Section 10 of the same chapter restrains 
gas companies from digging up the streets without the consent of 
the mayor and aldermen. St. 1886, c. 346, § 5, provides that your 
Board may order a gas company to supply gas to a person peti- 
tioning therefor, upon such terms as may be reasonable. These 
and other like provisions are plainly intended to apply only to 
gas companies carrying on their business in this Commonwealth. 
It does not follow, how^ever, that none of the provisions, of the 
statutes refer to corporations doing business without the Com- 
monwealth. Those relating to the requisites of organizing corpo- 
rations, to annual returns, and to the liability of directors and 
stockholders, must be taken to be applicable to all corporations 
alike. It may in general be said that all provisions relating to 
any specific class of corporations are alike applicable to all such 
corporations, unless it is plainly apparent, in view of all the 
circumstances, that they should be limited to those carrying on 
business within the Commonwealth. 

The statute relating to the issuing of stock and bonds by gas 
companies (St. 1894, c. 450, § 1) provides in terms as follows: 
"Gas companies and electric light companies, whether such com- 
panies are organized under general laws or under special charters, 
and however authorized to issue capital stock and bonds, shall 
hereafter issue only such amounts of stock and bonds, as may 
from time to time, upon investigation by the board of gas and 
electric light commissioners be deemed and be voted by them to 
be reasonably requisite for the purposes for which such issue of 
stock or bonds has been authorized." 

It may fairly be assumed that the principal purpose of the 
Legislature in enacting this statute was to protect consumers 
from being obliged to contribute to the payment of dividends 
upon fictitious or over-valued stock; and there is no reason to 
suppose that there was any purpose of protecting consumers in 
other States. It is also true, however, that the effect of this and 



60 



OPINIONS OF THE ATTORNEY-GENERAL. 



of other like statutes relating to public-service corporations is 
to promote confidence in the securities of companies organized 
under the laws of Massachusetts. In view of the high standing 
which Massachusetts corporations have attained under the legis- 
lation of the Commonwealth, it may be doubted whether stat- 
utes whose effect is not only to protect the public, but also to 
promote confidence in the securities of Massachusetts corpora- 
tions, were intended to be applicable to some corporations and 
inapplicable to others of the same character. The statute in 
question contains no exception whatever, and is in terms appli- 
cable to all corporations engaged in the business of supplying 
gas or electric lighting. 

Moreover, the corporation in question may at any time engage 
in business in this Commonwealth. If it should do so, the com- 
mission could not know its true standing, nor proceed intelli- 
gently in the approval of stock and bonds issued for that purpose, 
without a knowledge of the situation in Iowa, where it is already 
carrying on business. 

Upon the whole, therefore, I am of opinion that the corporation 
in question is subject to the provisions of St. 1894, c. 450. The 
matter of expense to the Commonwealth need not be considered, 
for, under the provisions of St. 1885, c. 314, § 6, and St. 1887, 
c. 382, § 4, such expenses are to be borne by the corporation. 



Paris Exposition 



Monographs as Exhibits on Part of 
Commonwealth. 



To the Board 
of Paris 
Exposition 
Managers. 

1899 
June 27. 



The Board of Paris Exposition Managers is authorized, by Res. 1898, c. 91, to pub- 
lish a series of monographs on topics ilhistrating the relative importance of 
Massachusetts in comparison with other States, to be used as exhibits on 
the part of the Commonwealth at the Exposition at Paris in 1900. 

Your letter of June 21 states that ''one of the exhibits at the 
Exposition at Paris in 1900 in the department of Education and 
Social Economy is to be a printed series of monographs, intended 
for limited free distribution, based upon which will be exhibits 
illustrative of the points made in these monographs. Each 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 61 

monograph is to cover a particular topic, and of course will 
cover that topic for the whole United States. In this group fall 
nearly all the activities of the State." 

Your letter further states that the Director of Education and 
Social Economy has invited the State of Massachusetts to furnish 
a number of these monographs, to be exhibited and catalogued 
as exhibits on the part of the Commonwealth. These will include 
a description of the work of the Commonwealth itself, but will 
cover a much larger field. The question submitted by your 
Board is whether such work is within the scope of Res. 1898, 
c. 91, and Res. 1899, c. 93. 

The resolve of 1898, after establishing" a Board of Paris Ex- 
position Managers on the part of the Commonwealth, provides 
that the Board shall have charge of the interests of the Com- 
monwealth and its citizens in the preparation and exhibition 
" of the natural and industrial products of the Commonwealth, 
and of objects illustrating its history, progress, and material 
welfare and development, and of all other matters relating to 
the said exposition." The resolve of 1899 appropriates the sum 
of fifty thousand dollars "for the purpose of exhibiting at the 
. . . exposition . . . the arts, industries, institutions, resources, 
products and general development of the Commonwealth, and 
for distributing at said exposition information to all nations 
relative to the manufacturing and mercantile business of the 
Commonwealth, which will assist in the export of the Massa- 
chusetts products." 

Strictly construed, the language of these resolves does not 
authorize the preparation of monographs, which, as stated in your 
letter, are intended to cover a topic for the whole United States, 
and will, therefore, be a history of the development of the in- 
dustry treated of not only in Massachusetts, but in other States 
as well. If the scope of the work of your commission were to be 
thus strictly defined, I should feel constrained to advise you that 
you should not enter upon the work proposed. 

I am of opinion, however, that so narrow an interpretation 
was not the intent of the Legislature. It is impossible in advance 
to prescribe the limits of such a work as the preparation of ex- 



62 



OPINIONS OF THE ATTORNEY-GENERAL. 



hibits for an international exhibition. The field is a broad one, 
and is likely to broaden still further as the time of the exhibition 
draws near. It was undoubtedly the purpose of the Legislature 
to see to it that Massachusetts, her history, development and 
standing, were fully and adequately presented at the exposition. 
If your commission think that that can be done more satisfac- 
torily by such a history as will show the relative importance of 
Massachusetts in comparison with the other States of the Union, 
I am of opinion that you are not prevented from so doing by a 
too strict construction of the terms of the resolves. A large dis- 
cretion is confided to your Board. The amount of money ap- 
propriated is fixed; but, farther than the fact that your duties 
are limited to what may not be improperly called an advertise- 
ment of Massachusetts, I do not think you are to be held so 
strictly that if you deem it wise to do so, you may not show 
not merely her importance, but her relative importance as well, 
among States of the Union. 

If, therefore, in your discretion the work contemplated is so 
regarded by you, I am of opinion that the language of the resolve 
is broad enough to give you authority to enter upon its per- 
formance. 



Licensed Firemen- 



-Coal Shovellers in a Large Boiler 
Plant. 



Men employed in simply putting coal under the boilers in a large boiler plant, 
subject to the orders and directions of a licensed fireman, whose duty it is 
to take care of the water for the boilers, and direct the men in their work, 
are not required, by St. 1899, c. 368, to have licenses. 



To the Chief 
of the Massa- 
chusetts Dis- 
trict PoUce. 

1899 
July 6. 



Your letter of June 1 requires the opinion of the Attorney- 
General upon the following question, to wit: "In a large boiler 
plant, where many men are employed simply putting coal under 
the boilers, subject to the general orders and directions of a 
licensed fireman present in the boiler room, whose duty it is 
to take care of the water for the boilers and direct the men in 
their work, are such men required to have licenses under St. 
1899, c. 368?" 

In an opinion to you, dated September 29, 1897 ( 1 Op. Atty.- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 63 

Gen. 485), I advised you that ''in a large boiler plant, where 
many men are employed as firemen, simply putting coal under 
the boilers, with a fireman in charge to take care of the water 
for the boilers," such men were not required to be licensed, 
under the provisions of St. 1896, c. 546. The statute upon which . 
that opinion was given made it unlawful for any person ''to 
have charge of, or to operate a steam boiler or engine" (with 
certain exceptions), unless he held a license therefor. I further 
stated, as the reasons which led me to the conclusion arrived at, 
that the statute was intended for the security of the public and 
those employed or having business in the vicinity of steam 
boilers, by providing that those who had charge of such boilers 
should possess the skill necessary for their safe operation; and 
that the word "operate," as used in that statute, was to be taken 
as meaning the directing or superintending of the working of the 
boiler, and that the statute did not apply to mere laborers, who 
had no responsibility or authority in the matter. 

St. 1899, c. 368, does not, in my judgment, require a modifi- 
cation of the conclusions stated in my former opinion. It pro- 
vides in § 4 that: "Licenses shall be granted according to the 
competency of the applicant, and shall be distributed in the 
following classes: . . . Firemen's licenses: First, to operate any 
boiler or boilers. Second, to have charge of and operate low- 
pressure heating boilers where the pressure carried is less than 
twenty-five pounds to the square inch. ..." Section 5 pro- 
vides that: "The words 'have charge,' in this act, shall be 
construed to designate the person under whose supervision a 
boiler or engine is operated. The 'person operating' shall be 
understood to mean any and all persons actually engaged in 
generating steam in any power boiler." 

Whether, as I understand is claimed, the intention of those 
procuring the passage of this act was to extend the provision of 
existing legislation, requiring persons operating steam boilers 
to be licensed therefor, to mere laborers, it is clear that the 
language employed fails to accomplish any such intention, even 
granting that it would be constitutional to require a mere 
laborer to be licensed. It is, to say the least, doubtful whether 
such a law would be within the provisions of the Constitution. 



64 OPINIONS OF THE ATTORNEY-GENERAL. 

Commonwealth v. Perry, 155 Mass. 117, 121. In the broader 
sense of the words used in the statute, every person having to 
do with any labor connected with the operation of steam boilers, 
such as coal holsters, shovellers, and men employed to bring 
. coal in wheelbarrows, might be said to be engaged in the busi- 
ness of "generating steam" in a power boiler. 

Such a construction would obviously be absurd. I cannot 
believe that it was the intention of the Legislature to require 
that every laborer, who has a mere mechanical duty to perform 
in relation to the work of generating steam in a boiler, must be 
licensed. Licenses are granted to persons having special quali- 
fications for the work for which the license is issued ; and a con- 
struction which requires the issuing of a license to a person 
whose work requires no special skill and involves no danger to 
the public is not to be favored, especially in a penal statute, 
which is to be strictly construed. 

I am still of the opinion, notwithstanding the statute of this 
year, that licenses are not required for mere laborers, whose 
duties require no skill and involve no responsibility. 



Insurance — Foreign Company — Addition of Marine to 
Fire Business — Certificate of Admission — Insur- 
ance Commissioner. 

A foreign insurance company, authorized by its charter to do both fire and marine 
business, was admitted to do business in this Commonwealth in 1874, but it 
could then do only fire business here, as its capital was only $200,000. It has 
since increased its capital to $300,000, and it may now do both fire and 
marine business in this Commonwealth. 

No duty devolves upon the Insurance Commissioner of granting permission to it 
now to do marine business, as there never has been any statute that author- 
ized the Insurance Commissioner to state in the certificate of admission whicii 
he gave to a foreign company any one kind of business it might do. So, 
after a company is once admitted, it may do any business here that its charter 
and the laws of the Commonwealth permit. 

Totheinsur- Your letter of June 9 requests the opinion of the Attorney- 

ance Com- i ^ "^ 

"is^'^"*^'' General upon the question whether the Security Insurance Com- 
'11!!L^" pany of New Haven, Conn., is authorized to do both fire and 

marine insurance business in this Commonwealth. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 65 

The charter of the company authorizes it to do both classes of 
business. It was admitted to this Commonwealth in 1874, but 
it could then do only fire insurance business, as its capital stock 
was only $200,000. It has now increased its capital stock to 
$300,000, and claims the right to do marine insurance business, 
in addition to fire insurance business. 

St. 1872, c. 375, was in force when the company was admitted. 
Section 16 provided: "No insurance corporation or association of 
any other state or country shall be hereafter admitted to do busi- 
ness in this state, unless it has at least the amount of unimpaired 
capital stock or funds required of like corporations or associations 
hereafter organized in this state, located in the city of Boston." 
Section 2 provided : "The capital stock of a joint stock company " 
(a domestic joint stock company) "insuring against loss or dam- 
age by fire, or by fire and lightning only, shall not be less than 
two hundred thousand dollars if the company is located in Boston. 
... If insuring marine or inland risks, either alone or in con- 
junction with fire risks, its capital stock shall not be less than 
three hundred thousand dollars if the company is located in 
Boston." 

St. 1879, c. 130, provided, in § 1, that, whenever a foreign in- 
surance company authorized to transact more than one kind of 
business applied for authority to transact business in this Com- 
monwealth, it should elect one kind of business which it desired 
to transact in this Commonwealth, and, if admitted, it should be 
restricted to that kind of business. Section 2 provided that 
any company then doing business, should elect before the first 
day of the next July the one class or kind of business it would 
do in this Commonwealth thereafter. But § 3 specially exempted 
companies transacting the business of marine insurance in con- 
nection with fire insurance. That statute, therefore, never 
applied to the Security Insurance Company. 

St. 1879, c. 130, was inserted as § 201 of the codification of 
the insurance laws in Pub. Sts., c. 119. Section 196 of that 
chapter provided: "No foreign insurance company shall be ad- 
mitted to do business in this Commonwealth unless it has at 
least the amount of unimpaired capital stock or funds required 



66 OPINIONS OF THE ATTORNEY-GENERAL. 

of like companies hereafter organized in this Commonwealth, 
located in the city of Boston." And § 29 allowed domestic 
stock companies located in Boston, having a capital of $300,000, 
to do fire and marine insurance business. When the insurance 
laws were codified, in St. 1887, c. 214, it was provided, in § 29, 
that domestic companies could be formed to do fire or marine 
business, but not to do both. It was also provided by § 80 that 
"No foreign insurance company hereafter admitted to do busi- 
ness in this Commonwealth shall be authorized to transact more 
than 'one class or kind of insurance therein." That section has 
since remained unchanged in the statutes of the Commonwealth. 
See St. 1889, c. 356, § 1; St. 1891, c. 195, § 1; St. 1894, c. 133, 
§ 3; St. 1894, c. 522, § 80. It is plain, however, that this pro- 
vision never applied to a company that was already admitted, 

St. 1887, c. 214, prohibited the formation of domestic cor- 
porations to do both marine and fire insurance business, and this 
provision has been continued in St. 1894, c. 522, § 29. The 
same statutes provided that no foreign insurance company should 
be admitted and authorized to do business until it had satisfied 
the Insurance Commissioner that it had a paid-up and unim- 
paired capital of an amount not less than is required by similar 
companies formed under the provisions of our laws. St. 1887, 
c. 214, § 78; St. 1894, c. 522, § 78. And by St. 1894, c. 522, 
§ 31, domestic companies formed to do a marine insurance busi- 
ness must have a capital stock of $300,000. 

It is clear, however, that none of the statutes enacted since the 
admission of the Security Insurance Company of New Haven 
apply to it. The statutes all refer to companies "hereafter ad- 
mitted," both as to the amount of capital required and the kind 
of business they may do. The Security Insurance Company has 
as much capital now as it would have been required to have in 
order to do marine insurance business in this Commonwealth 
when it was admitted, and as much as it would have been re- 
quired to have if it had been admitted at any time previous to 
the enactment of St. 1887, c. 214, § 80. It has as much capital 
as a domestic marine company formed now would be required to 
have, although no domestic company could now be formed to do 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 67 

marine insurance business and fire insurance business too. I am 
of opinion that there is nothing in the statutes which prohibits 
it from doing marine insurance business. 

Your letter further states that the company "asks to be per- 
mitted to do marine business here." As I am of the opinion that 
it is authorized to do marine business in this Commonwealth, no 
duty of granting permission therefor devolves upon you. At the 
time the company was admitted there was no statute authorizing 
any form of certificate to be given to it by the Insurance Commis- 
sioner. St. 1887, c. 214, § 78, cl. 5, provided that the company 
should obtain the Insurance Commissioner's certificate that it had 
"complied with the laws of the Commonwealth and is authorized 
to make contracts of insurance." The same provision is in St. 
1894, c. 522, § 78, cl. 5, but those sections apply only to com- 
panies admitted after they were enacted. 

This company is already admitted, and is entitled to do such 
business as it is authorized to do by law, regardless of whether the 
Insurance Commissioner permits it or not. 1 Op. Atty.-Gen. 47. 



Corporation — Amount of Capital of Manufacturing 
Corporation formed under General Laws. 

St. 1899, c. 199, repeals so much of Pub. Sts., c. 106, § 7, as imposed a maximum 
limit of one million dollars upon the capital of a manufacturing corporation 
formed under general laws. 

Your letter of June 6 requires my opinion upon the question TotheCom- 

,,.. p^ iii'-r-i- missioner of 

whether, in view of St. 1899, c. 199, you would be justmed in corporations, 
approving a capital of a manufacturing corporation in excess of J^o^. 
one million dollars. 

Pub. Sts., c. 106, § 7, provides that corporations may be formed 
for the purpose of carrying on any manufacturing business (with 
certain exceptions) "with a capital of not less than five thousand 
nor more than one million dollars." 

St. 1899, c. 199, provides in § 1 that: "For the purpose of 
carrying on any mechanical or manufacturing business, . . . 
three or more persons may associate themselves together with 



68 OPINIONS OF THE ATTORNEY-GENERAL. 

the intention of forming a corporation with a capital of not less 
than five thousand dollars. Such corporation shall be subject to 
all laws now or hereafter in force relating to such corporations." 
The second section of the same chapter authorizes any such 
corporation to increase its capital to such amount as may be 
determined by the stockholders. 

It was the obvious intention of the statute of this year to re- 
peal the maximum limitation of one million dollars. The statute, 
it is true, does not in terms repeal any of the provisions of the 
Public Statutes, but, on the contrary, makes corporations formed 
under it subject to all existing provisions; which in terms would 
include the limitation of one million dollars. It may be sug- 
gested, therefore, that by implication the limitation is still in 
force. 

If, however, such a construction were to prevail, § 1 of the act 
of this year, above quoted, would be entirely useless and super- 
fluous, being a re-enactment, without change, of an existing 
statute. Furthermore, inasmuch as § 2 authorizes an indefinite 
increase of capital, it would follow that there is a limitation of the 
amount of original capital, but with the right forthwith to in- 
crease to an indefinite amount. This cannot have been the intent 
of the Legislature. 

In my judgment, the statute of this year is to be construed as 
repealing so much of the previous statute as imposed a maximum 
limit upon the amount of capital of manufacturing corporations 
formed under general laws. 



Superintendent of Schools — Tenure of Office. 

The term of office of a superintendent of schools does not expire at the end of the 
year for which he was appointed, when the school committee fail to appoint a 
successor; and he is entitled to hold the office until his successor is appointed. 

To the State Your letter of March 10 requests the opinion of the Attorney- 

^^89^"°°' General upon the following question: "Section 43, chapter 44 
^^l!_!' of the Public Statutes, provides for the election of a superin- 

tendent of schools by a majority vote of the school committee. 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 69 

In a case where a superintendent has been elected for a year and 
his term of office has expired, the school committee, by a tie 
vote, fails to make any election. Does the term of the superin- 
tendent end with the year for which he was originally chosen, or 
can it be construed to continue him in office until a successor is 
chosen?" 

Pub. Sts., c. 44, § 43, provides that: "A city by ordinance, and 
a town by vote, may require the school committee annually to 
appoint a superintendent, who, under the direction and control 
of said committee, shall have the care and supervision of the pub- 
lic schools." 

I assume -that there has been a vote of the town in question 
requiring the school committee to appoint a superintendent, 
which has not been rescinded, and was in force at the time of the 
tie vote in question. 

The members of the school committee are public officers. 
McKenna v. Kimball, 145 Mass. 555, 556. In this case Mr. Jus- 
tice Wm. Allen, in delivering the opinion, said: "The school 
committee is a board of public officers whose duties are prescribed 
by statute, and in the execution of its duties the members do not 
act as agents of the town, but as public officers in the perform- 
ance of public duties." For the reasons there stated, it is not 
difficult to determine that a superintendent of schools chosen 
by the school committee under the direction of the town is also 
a public officer, and not merely the agent or employee of the 
school committee. He has important public duties to perform, 
under the direction and control of, the school committee, but in 
the performance of those duties he must necessarily be left 
largely to his own discretion. 

The superintendent being a public officer, his tenure of office 
in case of the failure of the school committee to elect his suc- 
cessor depends upon general principles of law applicable to pub- 
lic officers. It has long since been settled in this Commonwealth 
that a public officer is entitled to hold office until his successor 
is elected. "The better opinion is that town officers annually 
chosen hold their offices until others are chosen and quahfied 
in their place." Shaw, C.J., in Overseers of the Poor v. Sears, 



70 OPINIONS OF THE ATTORNEY-GENERAL. 

22 Pick. 122, 130. ''To guard against lapses, sometimes unavoid- 
able, the provision is almost always made in terms that the officer 
shall hold until his successor is elected and qualified. But even 
mthout such a provision, the American courts have not adopted 
the strict rule of the English corporations which disables the 
mayor or chief officer from holding beyond the charter or elec- 
tion day, but rather the analogy of the other corporate officers 
who hold over until their successors are elected, unless the legis- 
lative intent to the contrary be manifested." Dillon, Municipal 
Corporations, § 219. 

It has been long expressly provided in our statutes that town 
officers should serve until others were chosen and qualified in 
their stead. Rev. Sts., c. 15, § 33; Gen. Sts., c. 18, § 31; Pub. 
Sts., c. 27, § 78. The school committee are not included in terms 
in the sections referred to, each of which enumerates the officers 
required to be chosen at the annual town meeting. The omission 
to designate the school committee among those so to be chosen 
is undoubtedly due to the fact that special provisions govern the 
election of a school committee. Pub. Sts., c. 44, § 21. There is 
no reason for supposing that the tenure of office of the school 
committee was intended to be different from that of other town 
officers. The statute in question devolves upon the school com- 
mittee the duty of electing a superintendent of schools when 
ordered to do so by the town. It is the intention of the town, as 
expressed by its vote, that there shall be a superintendent of 
schools; and it would be, in my judgment, unreasonable to adopt 
a construction of the statute which would enable the school com- 
mittee, by a failure to elect at the end of the year, from whatever 
cause, to defeat the will of the town. 

Some expressions in the opinion of Kimball v. Salem, 111 Mass. 
87, may seem to be at variance with the views above stated, par- 
ticularly the following: "The duty or authority of the school 
committee, under the vote of a town or ordinance of a city, is 
one which is to be performed or exercised by them annually. 
The statute manifestly contemplates an appointment for the 
year; and not from time to time, at the discretion of either 
branch of the municipal government." The question in that 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 71 

case, however, was whether, by repealing the ordinance providing 
for the election of a superintendent, that officer could be deprived 
of the right to his compensation for the year for which he was 
elected ; and the court held that, having been chosen for a year, 
he could not be deprived of his office by a vote repeahng the 
ordinance. The language quoted must be taken to refer to that 
question only, and is not authority in favor of the proposition 
that, if the school committee fail to elect a successor, the office 
thereby becomes vacant. 

The recent case of Attorney-General v. John T. Clark, in the 
Supreme Judicial Court for the county of Worcester, although a 
nisi prius decision, is authority for the views I have stated. It 
was an information in the nature of a quo warranto by the At- 
torney-General against John T. Clark, superintendent of schools in 
Southbridge. He was elected superintendent of schools by the 
committee under a vote of the town, for a year beginning Sept. 
1, 1896. In 1897 no superintendent was elected, but Clark as- 
sumed to exercise the duties of superintendent, and refused to 
give up the possession of the books and papers in liis control. 
Holmes, J., in dismissing the information, said: "There is no 
time fixed in Pub. Sts., c. 44, § 43, for the election of a successor 
of the respondent, and I am of opinion that he holds over, in 
accordance with what Chief Justice Shaw pronounced the better 
rule in 22 Pick. 130." 

For the reasons above stated, and especially in view of the 
decision last quoted, I am constrained to advise the Board that 
the term of office of a superintencient of schools does not expire 
by reason of the failure of a school committee to elect a successor, 
but that he is entitled to hold his office until the school committee 
discharge the duty devolving upon them by the statute. 



72 OPINIONS OF THE ATTORNEY-GENERAL. 



Eminent Domain — Appropriation for Damages — Consti- 
tutional Law. 

The Board of Harbor and Land Commissioners is not precluded from taking areas 
in South Bay in the city of Boston, under authority of St. 1899, c. 469, be- 
cause no specific sum is appropriated by that act to pay damages for such 
takings. The act does appropriate so much money as may be necessary to 
pay the damages which may be assessed under it, and it is therefore con- 
stitutional. 

of^Hfr^r^Iud YouF letter of July 7 requires my opinion upon the following 
^s^stoneJ^". question: " Referring to chapter 469, Acts of 1899, which became 
Julys. a law July 3, I have the honor to inquire whether this Board is 

precluded from going ahead and taking areas in South Bay in 
the city of Boston, by reason that no specific appropriation 
appears to have been made for the purpose of damages for such 
takings, or for any other reason." 

The statute above referred to amends St. 1898, c. 278, § 4, so 
as to read as follows: "The board of harbor and land commis- 
sioners, subject to the approval of the governor and council, is 
hereby authorized to purchase or otherwise take in fee from time 
to time, in the name and behalf of the Commonwealth, the whole 
or any portions of the area lying between the harbor lines here- 
inbefore established, or any rights therein. All damages sus- 
tained by reason of such taking as aforesaid shall be paid out of 
the treasury of the Commonwealth, and the governor is hereby 
authorized to draw his warrant therefor. Such damages shall be 
agreed upon by said board and the person or corporation injured; 
and if the parties cannot agree a jury in the superior court of 
the county in which the property taken is situated may be had 
to determine the same, in the same manner as a jury is had and 
damages are determined in the case of persons dissatisfied with 
the estimate of damages sustained by the laying out of ways 
in the city of Boston: provided, however, that no suit for such 
damages shall be brought after the expiration of one year from 
the date of the recording of the taking as herein required. Within 
sixty days after any land, flats or rights therein are acquired or 
taken under this act, the board shall file and cause to be recorded 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 73 

in the registry of deeds for the county in which the property is 
situated, a description thereof sufficiently accurate for identify- 
ing the same, with a statement that the land, flats or rights 
therein are taken under the provisions of this act, in the name 
and behalf of the Commonwealth. Said description and state- 
ment shall be signed by said board or a majority thereof, and 
certified as approved by the governor and council." 

In the case of Talbot v. Hudson, 16 Gray, 417, the Supreme 
Court was called upon to determine the question of the constitu- 
tionahty of St. 1860, c. 211. That act authorized the taking 
down and removal of a portion of a dam across the Concord 
River, and provided that any person injured in his property by 
the work authorized might have his damages estimated by the 
county commissioners in the same manner, with certain imma- 
terial exceptions, as damages caused by the laying out of high- 
ways were estimated; and that either the person injured or the 
Commonwealth, if dissatisfied with the award of the county 
commissioners, might have the matter determined by a jury as 
in the case of highways. 

Section 3 of that act reads as follows: "Any damages that may 
be recovered on such application, together with legal costs, shall 
be paid out of the treasury of the Commonwealth; and the gov- 
ernor is hereby authorized to draw his warrant therefor." 

The validity of this statute was called in question in the case 
above referred to on several grounds; among others, it was con- 
tended that the statute was unconstitutional, because it contained 
no reasonable, certain and adequate provision for compensation 
to those whose property might be taken and appropriated in 
carrying out the purposes of the act. 

The court, in an opinion by Bigelow, C.J., said: ''It seems to 
us that there is an obvious and decisive answer to this objection. 
By the third section of the act it is provided that the damages 
which may be recovered on due proceedings had by the parties 
injured shall be paid out of the treasury of the Commonwealth, 
and the Governor is authorized to draw his warrant therefor. 
This is clearly an appropriation of so much money as may be 
necessary to pay the damages which may be assessed under the 



74 OPINIONS OF THE ATTORNEY- GENERAL. 

act. The provision could not be more explicit or definite as to 
the amount appropriated. Until the damages are ascertained 
and adjudicated, the sum which will be required to pay them is 
necessarily uncertain. There is no provision of law which makes 
it requisite to the validity of an appropriation from the treasury 
of the Commonwealth that a specific sum should be named and 
set apart as a fund to meet a particular exigency. It is sufficient 
if by an act or resolve passed during the same or the preceding 
political year the payment is authorized. St. 1858, c. 1, §§ 1, 2; 
Gen. Sts., c. 15, §§ 30, 31. That such an appropriation affords 
a remedy sufficiently adequate and certain is too clear to admit 
of doubt. It is a pledge of the faith and credit of the Common- 
wealth, made in the most solemn and authentic manner, for the 
payment of the damages as soon as they are ascertained and 
liquidated by due process of law. Unless we can say that such 
a provision affords no reasonable guaranty that the persons in- 
jured will receive compensation, we cannot adjudge the statute 
to be unconstitutional. We certainly cannot assume that the 
Commonwealth will not fulfill its obligations. The presumption 
is directly the other way. Indeed, the plaintiffs do not aver in 
their bill that the damages which may be awarded to them under 
the act will not be duly paid. How, then, can it be said that no 
suitable and adequate provision is made in the act by which 
the plaintiffs can receive the compensation to which they may 
be entitled?" 

The language of St. 1899, c. 469, so far as it relates to the 
payment of damages, is precisely similar to that contained in St. 
1860, c. 211, § 3, which section was construed in the case above 
referred to as amounting to an appropriation of so much money 
as might be necessary to pay the damages assessed under the act. 
That case has not been overruled, but, on the contrary, the lan- 
guage above quoted was referred to with approval in the case 
of Connecticut River Railroad Co. v. County Commissioners, 127 
Mass. 50, 55. Since the case of Talbot v. Hudson was decided 
no statutes have been passed which are now operative requiring 
that an appropriation from the treasury of the Commonwealth 
should be of a specific sum or in any other way affecting this 



HOSEA M. KNOWLTOX, ATTORNEY- GENERAL. 75 

question. No other objection to the vaUdity of the statute re- 
ferred to in your letter appears. 

I am, therefore, of opinion that St. 1899, c. 469, is constitu- 
tional; and ihat, so far as the question of the validity of this 
statute is concerned, your Board is not precluded from exercising 
the powers given to it thereby. 



Board of Education — Westford Academy — Approval as 
High School — Constitutional Law. 

Westford Academy is a private school, and is "not under the order and superin- 
tendence of the authorities of the town" of Westford; and the State Board 
of Education may refuse to approve it, either for the purpose of authorizing 
the town of W^estford to pay the tuition of children living therein and attend- 
ing that academy, under St. 1895, c. 94, or for the purpose of securing to other 
towns reimbursement by the Commonwealth of money expended for the 
tuition of children in that academy, under the pro\-isions of St. 1898, c. 496, 
§3. 

Strictly speaking, the duty of the Board is that of approval of an academy in respect 
to the grade of its work; but, as towns may not pay the tuition of pupils 
attending Westford Academy, the Board, in the exercise of its discretion, 
may withhold its approval of it for that reason. 

Your letter of June 10 encloses a copy of an indenture between to the state 
the town of Westford and the trustees of the Westford Academy, Education. 

'^ 1899 

and requests the opinion of the Attorney-General upon the fol- «Juiyi2. 
lowing questions : — 

Fird. — "Is it legal for the State Board of Education, either 
under the provisions of St. 1895, c. 94, or under the provisions 
of that act as supplemented by the aforesaid indenture, to ap- 
prove Westford Academy for the purposes of said act, should it 
desire to do so?" . 

Second. — ''Is it legal for the State Board of Education, either 
under the provisions of St. 1898, c. 496, § 3, or under the pro- 
visions of that section as supplemented by the aforesaid inden- 
ture, to approve Westford Academy for the purpose of insuring 
to towns the reimbursement of money expended for tuition in 
that academy?" 

The statute referred to in your questions (St. 1895, c. 94) pro- 
vides, in § 1, that: "Any town in which a high school is not 



76 OPINIONS OF THE ATTORNEY- GENERAL. 

maintained, but 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: 
provided, such academy is approved for that purpose by the 
state board of education." 

On March 18, 1896, in response to an order of the Senate, I 
advised that honorable body that in my opinion the statute in 
question, in so far as it purported to authorize the payment of 
money by a town to an incorporated academy not under the con- 
trol of the town, is in violation of Art. 18 of the Amendments to 
the Constitution, which provides in terms that "moneys raised 
by taxation in the towns and cities for the support of public 
schools . . . shall be . . . expended in no other schools than 
those which are conducted . . . under the order and superin- 
tendence of the authorities of the town or city in which the 
money is to be expended." 1 Op. Atty.-Gen. 319. 

If I am correct in this opinion, it is necessary to ascertain, 
before answering your questions, whether Westford Academy is 
under the order and superintendence of the authorities of the 
town of Westford. If not, the town may not lawfully pay the 
tuition of its pupils. 

All the authority and superintendence which the authorities 
of the town of Westford may exercise over Westford Academy 
is derived from the provisions of the indenture submitted with 
your letter. The only provisions affecting the question are the 
following : — 

" And it is further agreed that the said trustees [of the academy] 
shall provide a grade of education equal to that provided by high 
schools. 

"And it is further agreed that, in order to determine whether 
or not the grade of education provided by the said trustees is, 
at any time, up to the said required standard, there shall be a 
Board consisting of three members, hereinafter called the Super- 
vising Board ; that one of these three members shall be appointed 
by and from the school committee of the said town of West- 
ford, one by and from the said trustees, and the third by the 
two members appointed in the foregoing manner, and who shall 
not be a member of either of said boards ; that the term of office 



HOSEA M. KXOWLTON, ATTORNEY- GENERAL. 77 

of each member shall expire on the last day of June of each 
year; that, in case of the death or resignation of any member, 
a successor shall be appointed by the same parties that appointed 
the said members so deceased or resigning, and that a new Super- 
vising Board shall be appointed at the last of June each year." 

"And it is further agreed that the superintendent of schools 
of said town of Westford shall superintend the methods of edu- 
cation employed in said academy, and the results obtained and 
all matters appertaining in any way to his connection with the 
academy shall be reported to the said Supervising Board at his 
desire or their call, and shall also be included in his report to the 
town each year. In case of controversy, the Supervising Board 
to decide and adjudge and fully settle all points and differences." 

It is obvious that the above provision for a Supervising Board 
consisting of three members, only one of whom is selected by 
the school committee of the town, does not give to the authori- 
ties of the town the order and superintendence of the school. 
The provision that the town superintendent of schools shall 
superintend ''the methods of education employed in said acad- 
emy" also fails, in my opinion, to put the institution under 
the order and superintendence of the town authorities within the 
meaning of that expression as used in the Amendment to the 
Constitution. The authority of the superintendent is fimited to 
methods of education, and he may not exercise any other control 
over the institution, its management or discipline. The principal 
purpose of the amendment was doubtless to prevent the use of 
moneys raised or appropriated foF the support of the public 
schools for the purpose of sustaining sectarian schools. The 
academy at Westford may or may not be sectarian in its char- 
acter. There is nothing, however, in the agreement between 
the trustees and the town which prevents it from being so, or 
in any way limits the character of religious instruction or ser- 
vices which may prevail in the academy. The arrangement 
between the town and the academy differs essentially from that 
relating to the Powers Institute in the town of Bernardston, 
which, in an opinion to you, dated March 8, 1897 (1 Op. Atty.- 
Gen. 427), I advised you make the academy to all intents and 
purposes a school under the control of the authorities of the 



78 



OPINIONS OF THE ATTORNEY- GENERAL. 



town. In that case the trustees of the academy are elected by 
the inhabitants of the town and must be citizens of the town, and 
they are required to make an annual report to the town. West- 
ford Academy, however, is wholly independent of the town, ex- 
cepting so far as the town superintendent may exercise supervision 
over the methods of instruction. As this does not place the 
academy under the order and superintendence of the authorities 
of the town, the case, in my opinion, comes within the prohibi- 
tion of the Amendment to the Constitution. 

Strictly speaking, the duty of the Board of Education is that 
of approval of an academy in respect to the grade of its work. 
The Board, in exercising the duties entrusted to it under St. 
1895, c. 94, § 1, is not concerned with the question whether the 
town may or may not lawfully pay the tuition of pupils in any 
given case. But, as the towns may not pay the tuition of pupils 
attending the academy, I see no reason why, in the exercise of 
your discretion you should not for that reason withhold your 
approval of the institution. 

The answer to your second question is governed by the fore- 
going considerations. Westford Academy, being a private school, 
not "under the order and superintendence of the authorities of 
the town," is therefore not a high school, and the State Board of 
Education has no authority to approve it as a high school. It 
follows that the State should not reimburse any town for the tui- 
tion of children sent to Westford Academy. 



Superintendent of Schools — Union of Towns to employ — 
Article in Town Warrant. 

An article in the warrant of a town, "to see if the town will vote to form a union 
with" another town "for the purpose of employing a superintendent of 
schools," is sufficient to authorize the voters of that town to vote for such 
union, although St. 1898, c. 466, is not referred to in the article, especially 
as there is no other statute under which a union of towns for that purpose 
could be affected. 



Your letter of September 2 states that the towns of Merrimac 



To the State 
Board of 

^'^"isylT'^' and Billerica have formed a district for the employment of a 
September 5. g^j^QQ^ superintendent, under the provisions of St. 1898, c. 466; 



HOSEA M. KNOWLTOX, ATTORNEY- GENERAL. 79 

and that the action of the town of Billerica was based upon an 
article in the warrant for the town meeting, which was as fol- 
lows : — 

"Article 2. — To see if the town will vote to unite to form a 
union with the town of Merrimac for the purpose of employing 
a superintendent of schools, or do anything in relation to the 
same." 

The question submitted by your letter is whether this article is 
sufficient, in view of the fact that it does not refer to the statute 
authorizing such a union. 

There is no form of union for the purpose of employing a super- 
intendent of schools possible to towns within this Commonwealth 
excepting under the provisions of the statute referred to. It is to 
be presumed, therefore, that the union referred to in the warrant 
was under that statute, and that the voters so understood, and 
that they voted with that understanding. 

The Supreme Judicial Court long since determined, as a wise 
rule of construction, that the proceedings of towns and town offi- 
cers were not to be judged with strictness, but rather to be con- 
strued with liberality. As was said by Morton, J., in Strong, 
Ptr., 20 Pick. 484, 492: "From the men who usually are, and 
necessarily must be, employed to make them, great formality or 
nicety cannot be expected and should not be required." See also 
Commonwealth v. Smith, 132 Mass. 289. 

In the present case there is no manner of doubt as to what was 
intended by the warrant, and as to the intention of the voters who 
acted upon it. A person learned iA the law would undoubtedly 
have referred specifically to the statute authorizing the proceed- 
ings. I do not deem it necessary, however, and I have no diffi- 
culty in advising you that the vote of the town upon the warrant 
quoted sufficiently authorizes the formation of the district. 



80 



OPINIONS OF THE ATTORNEY- GENERAL. 



To the S.uper- 
intendent of 
State Adult 
Poor. 

1899 
September 20. 



Pauper — Married Woman — Settlement — Derivative 
Settlement of Son. 

A woman, whose husband died in January, 1874, without ever having gained a 
settlement in Massachusetts, lived in Boston from that time until her death, 
in 1889. She therefore gained a settlement in her own right, in January, 
1879, which was not affected by the retroactive provisions of St. 1879, c. 242. 
Her son became of age before she gained a settlement, and therefore did not 
derive one from her, and, since he has never gained one in his own right, he 
is an unsettled person. 

Your letter of September 1 requires the opinion of the Attorney- 
General upon facts stated in the letter as to the settlement of a 
certain pauper. 

Your letter states that he was born in Boston, December 23, 
1855, and consequently became of age December 23, 1876. He 
never acquired a settlement in his own right. His father was 
born in New Hampshire, and came to Boston in 1852, where he 
died January 28, 1874, never having acquired a settlement in 
Massachusetts. His mother came to Boston with her husband 
in 1852, and resided in that city continuously as a married 
woman until her husband's death, in January, 1874, and sub- 
sequently as a widow, in the same place, until her death, in 
April, 1889. 

Upon the facts stated, the mother of the pauper was undoubt- 
edly settled in Boston. If this settlement was acquired prior to 
1876, when the pauper became of age, he would take the same 
settlement by derivation from her. If, however, she did not 
acquire her settlement in Boston until after 1876, he would derive 
no right therefrom. It is well settled that only minors can gain 
a derivative settlement from their parents. Springfield v. Wil- 
braham, 4 Mass. 493. The answer to your inquiry depends, there- 
fore, upon the determination of the question when the mother 
acquired her settlement in Boston. 

St. 1874, c. 274, § 2, provides that: "Any woman of the age of 
twenty-one years who resides in any place within this state for 
five years together without receiving relief as a pauper shall 
thereby gain a settlement in such place." By § 3 of the same act 
it is provided that "any unsettled person shall be deemed to have 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 81 

gained a settlement upon the completion of the residence and 
taxation herein required, though the whole or a part of the same 
accrues before the passage of this act." It has been held that 
this statute, though general in its terms, only applies to un- 
married women. Somerville v. Boston, 120 Mass. 574. Under 
this statute, therefore, the mother of the pauper would not have 
begun to acquire a settlement until the death of her husband, in 
1874; but, having resided as a widow in Boston from that time 
until her death, in 1889, she would have acquired, in January, 
1879, under its provisions, a settlement in Boston, having then 
completed her five years' period of residence therein as an un- 
married woman. 

But, in consequence, doubtless, of the decision in Somerville v. 
Boston, above referred to, limiting the operation of the statute of 
1874 to unmarried women, a statute was enacted in 1879 (St. 
1879, c. 242), providing that the provisions of St. 1878, c. 190, § 1, 
cl. 6 (which was a re-enactment of St. 1874, c. 274, § 2, above 
quoted), should extend to married women, and by § 2 making its 
provisions retroactive as to unsettled women. The word "un- 
settled ' ' in this section means unsettled at the time when the act 
took effect. Worcester v. Great Barrington, 140 Mass. 243 ; Mid- 
dleborough v. Plympton, 140 Mass. 325. 

If, therefore, the mother of the pauper was an unsettled woman 
when the statute of 1879 took effect, she would, under that 
statute, be deemed to have acquired a settlement in Boston when 
she had lived with her husband in Boston for five years, or in 
1857. At that time her son, the padper in question, was a minor, 
and would, consequently, have a settlement in Boston by deriva- 
tion from his mother. 

But the mother was not an unsettled woman when the statute 
of 1879 took effect. It was enacted April 22, 1879, and became 
law May 22 .of the same year. The five years' residence as a 
widow, which settled her in Boston under the provisions of the 
statute of 1874, expired in January, 1879. She therefore gained 
a settlement in January, 1879, which was not affected by the 
retroactive provisions of the statute of that year. It follows that 
when the pauper, her son, became of age, in 1876, his mother 



82 



OPINIONS OF THE ATTORNEY- GENERAL. 



cannot be said to have been settled in Massachusetts, and he 
derives no settlement from her. 

It has been suggested that, inasmuch as the statute of 1879 is 
in amendment of the provisions of the statute of 1878, the later 
statute is to be taken as incorporated into and made a part of the 
provisions of the statute of 1878, so far as to be a part of the same 
statute; and, that, consequently, rights under the statute of 1878, 
as amended by the statute of 1879, would be acquired as of the 
date of the passage of the statute of 1878. There is nothing in 
this contention worthy of serious consideration. Section 2 of the 
statute of 1879 is not an amendment of the statute of 1878, in the 
sense that it re-enacts the section amended, merely adding new 
words to the language of the former section. It is an independent 
enactment, containing new provisions ; and those provisions can- 
not be law until they are enacted. ''Generally, a statute speaks 
from the time it takes effect." Morton, C.J., in Worcester v. 
Great Barrington, uhi supra, p. 245. A statute affecting settlement 
laws may be retroactive in its provisions, but it cannot be taken 
to be retroactive as to the time when it takes effect. 



Telephone and Telegraph Poles — Damages for Removal 
FROM Land taken by Metropolitan Park Commission. 

The Commonwealth is not Hable in damages to a telephone and telegraph company 
for the removal of its poles from land taken by the Metropolitan Park Com- 
mission, when the right of the company to maintain such poles is founded 
upon a mere license given by the person who owned the land before it was 
taken by the commission. 

To the Metro- Your letter of July 7 requires the opinion of the Attorney- 
Commission. Qcueral upou the question whether the American Telephone and 
Sep tembe r 21. Telegraph Company have a valid claim against the Common- 
wealth for the taking by the Metropolitan Park Commission of 
certain lands for the Blue Hills Reservation. 

Your letter states that, prior to the taking of the land by the 
commission, the owner had signed and delivered to the company 
an instrument purporting to give to the company the right to 
construct, operate and maintain poles and telephone lines over 



HOSEA M. KNOWLTON, ATTORNEY- GENERAL. • 83 

said land. The essential portions of the instrument in question 
are as follows : — 

" Received of the American Telephone and Telegraph Company 
of Massachusetts forty dollars, in consideration of which I hereby 
grant unto said company, its successors and assigns, the right to 
construct, operate and maintain its lines over and along the prop- 
erty which I own, or in which I have any interest, in the town of 
Braintree, county of Norfolk and State of Massachusetts, includ- 
ing the necessary poles and fixtures along the roads, streets or 
highways adjoining the property owned by me in said town, in 
full payment for such right, and in full satisfaction for the trim- 
ming of any trees along said lines necessary to keep the wires 
cleared at least eighteen inches, and with the right to set the nec- 
essary guy and brace poles, and attach to trees the necessary guy 
wires. 

"Witness my hand and seal this fourth day of September, 1889, 
at Braintree, Mass." 

The instrument was signed by the owner, but was not sealed. 

The Commonwealth is not liable, unless the instrument in ques- 
tion conveyed to the company rights in the land which would bind 
a grantee of the owner. Being unsealed, however, it has no more 
force than a mere license, which, it is well settled, is revoked when 
the estate concerning which the license is given is conveyed by the 
licensor. Fentiman v. Smith, 4 East. 107; Cook v. Stearns, 11 
Mass. 533. The right to do some act of a permanent nature on 
the land of another cannot be created by a license, even when in 
writing, executed upon good consideration. It can only be 
created by a deed or conveyance operating as a grant. Such 
license is sufficient protection to the licensee while it lasts, but it 
may be revoked at any time, and after its revocation it cannot be 
used as protection for any further acts. White v. Manhattan 
Railway Co., 139 N. Y. 19; Miimford v. Whitney, 15 Wend. 380. 

A lease for a period of less than seven years may be given by 
a writing unsealed. The instrument in question, however, cannot 
be so regarded. It has none of the attributes of a lease. A con- 
veyance of a freehold interest in land, whether for life or in per- 
petuity, must be by an instrument under seal. The instrument in 



84 OPINIONS OF THE ATTORNEY-GENERAL. 

question being unsealed, gives the company rights only as against 
the signer thereof. These rights are lost by conveyance, or by 
taking under the right of eminent domain. 
It follows that the Commonwealth is not liable to the company. 



Massachusetts Agricultural College — Rates of Tuition. 

The trustees of the Massachusetts Agricultural College may establish such rates of 
tuition and remit them in such cases as they deem to be for the interests of 
the college. 

To the Your favor, enclosing a letter from the president of the Massa- 

Governor. ' " ^ 

September 21 chusctts Agricultural College, requires the opinion of the Attor- 
ney-General upon the question whether the trustees of that 
institution have the right, in any case, to remit the established 
fee for tuition of students. 

In general, trustees of colleges may fix such rates of tuition for 
students as they see fit. They may also require the payment of 
tuition from certain students, and not from others; and they may 
even require no tuition fee whatever from any person. Unless 
restrained by special provision of their charters, or by limitations 
or conditions in their endowments, the whole matter of tuition is 
in their exclusive control. 

The Massachusetts Agricultural College does not differ in this 
respect from other like institutions. It was chartered by St. 1863, 
c. 220, which was amended by St. 1864, c. 223. Its charter differs 
from that of other colleges in the Commonwealth in making one 
of its objects the teaching of "such branches of learning as are 
related to agriculture and the mechanic arts, in order to promote 
the liberal and practical education of the industrial classes in the 
several pursuits and professions of life;" in providing for the 
filling of vacancies in the board of trustees by the Legislature; 
in constituting the Governor of the Commonwealth, the secretary 
of the Board of Education and the secretary of the Board of 
Agriculture members of the corporation, ex officio; and in provid- 
ing that the "location, plan of organization, government and 
course of study prescribed for the college shall be subject to the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 85 

approval of the governor and council." The statute further ap- 
propriates for the building and maintaining of the college a portion 
of the proceeds of land scrip received by the Commonwealth from 
the United States, by virtue of the act of Congress approved by 
the President July 2, in the year 1862. Appropriations have also 
been made by the Legislature from time to time for the mainte- 
nance of the college. 

But there is no limitation upon the right of the trustees to 
regulate rates of tuition. In this respect they have the same 
powers as trustees of other institutions; and they may establish 
such rates of tuition and remit them in such cases as they deem 
to be for the interests of the college. 



Metropolitan Park Commission — Rules and Regulations 
FOR Use of Charles River — Powers of Park Police, 

The Metropolitan Park Commission does not have the power to make rules and 
regulations for the use of portions of the Charles River bordered upon by the 
lands of the Charles River Reservation. 

The general powers of the metropolitan park police are defined by St. 1897, c. 221, 
§ 3. 

Your letter of May 14 requires the opinion of the Attorney- to the Metro- 
General as to the power of the Metropolitan Park Commission to commission. 

1899 

make rules and regulations for the use of those portions of the Sep tember 23. 
Charles River bordered upon by land of the Charles River Reser- 
vation. , 

St. 1893, c. 407, § 4, authorizes the Board to "make rules and 
regulations for the government and use of the public reservations 
under their care, and for breaches thereof fix penalties," etc. 
St. 1894, c. 288, § 3, also authorizes the Board to "make rules 
and regulations for the government and use of the roadways or 
boulevards under its care." By St. 1898, c. 463, § 1, the Board 
is authorized, "for the purpose of making the rivers and ponds 
within the metropolitan parks district more available as open 
spaces for recreation and exercise, to regulate the use of certain 
spaces along or near said rivers and ponds within said district." 



86 



OPINIONS OF THE ATTORNEY-GENERAL. 



The foregoing statutes, which comprise all that give authority 
to the commission to make penal regulations, clearly do not 
authorize the establishment by the Board of rules for the use of 
the Charles River where it is bordered upon by the lands of the 
Charles River Reservation. 

As incident to its ownership of the lands bordering upon the 
river, the Board has certain rights of control to a limited extent 
over the use of the waters, especially those portions above the 
dam at Watertown ; but these are rights which all riparian owners 
have, and do not confer upon the Board any more authority to 
make rules and regulations, punishable by fine or imprisonment, 
than have other riparian owners. Proprietors of Mills v. Com- 
monwealth, 164 Mass. 229. 

Your letter also requires "as to the powers generally of the 
metropolitan park police on the waters of the Charles River lying 
within the metropolitan parks districts." 

By St. 1897, c. 121, § 3, it is provided that "The police ap- 
pointed or employed by said commission . . . shall have within 
the metropolitan parks district all the powers of police officers and 
constables of cities and towns of this Commonwealth except the 
power of serving and executing civil process." It does not occur 
to me* how I can state the general powers of your police officers 
more explicitly than to refer you to the language above quoted. 



Internal Revenue Law — Registers of Probate and Insol- 
vency — Congress — Treasurer of the Commonwealth. 

Registers of probate and insolvency are not required to pay for internal revenue 
stamps affixed to certificates and certified copies furnished by them, nor is 
the Commonwealth. When a stamp is required upon a document furnished 
by them, it must be paid for by the person for whose use it is issued. 

Congress has no authority to tax the States, and it is the duty of the Treasurer of 
the Commonwealth to refuse to reimburse officers of the Commonwealth for 
money expended by them for revenue stamps. 



Your letter of September 9, enclosing a communication from 
the register of probate and insolvency for Middlesex County, 



To the Treas- 
urer and 
Receiver- 
General. 

septe^mber 23. rcquircs the opinion of the Attorney-General upon two ques- 



tions : — 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 87 

First. — Should the Commonwealth pay for stamps affixed by 
registers of probate to certificates and certified copies? 

Second. — Should registers of probate refuse to issue certificates 
and certified copies which it is their duty to furnish on demand, 
without payment for the revenue stamp required under the ruling 
of the internal revenue commissioner? 

The first question only concerns the performance of your duties 
as Treasurer. The second question is not one upon which you 
have occasion to require the opinion of the Attorney-General. 
For the convenience, however, of officers throughout the State, I 
submit my views upon both questions. 

If the Commonwealth were to be required to reimburse its offi- 
cers for money expended by them for United States revenue 
stamps affixed to instruments which they are by law required to 
furnish, it would amount to a tax by the United States upon the 
Commonwealth. This, it is well settled, is beyond the power of the 
federal government. Collector v. Day, 11 Wall. 113; United 
States V. Railroad Co., 17 Wall. 322. The Treasurer of the Com- 
monwealth, therefore, cannot be called upon to pay for stamps so 
affixed ; and it is your duty to refuse reimbursement to officers of 
the Commonwealth therefor. 

The answer to your second inquiry is governed by the same 
considerations. It is undoubtedly the duty of registers of probate 
in many cases to furnish copies of the records and papers in their 
custody to persons interested therein. Indeed, certain copies are 
to be furnished by them free of charge. Pub. Sts., c. 156, § 40"; 
c. 199, § 24. Congress may not impose any tax or penalty upon 
State officers for the performance of their official duties. Such 
officers are agencies of the government of the State, and are 
beyond the sphere of the taxing power of the nation. Moore v. 
Quirk, 105 Mass. 49; Carpenter v. Snelling, 97 Mass. 452; Clemens 
V. Conrad, 19 Mich. 170. 

Registers of probate and insolvency, therefore, may not be re- 
quired to pay for stamps affixed to certified copies furnished by 
them. In cases where a stamp is required to be affixed to a docu- 
ment furnished by a register of probate, it must be paid for by the 
person for whose use it is issued. See 1 Op. Atty.-Gen. 566. 



88 



OPINIONS OF THE ATTORNEY-GENERAL. 



The United States Internal Revenue Act of 1898, § 6, does not 
specify whether the stamps to be affixed to an instrument shall be 
paid for by the one who issues it or by him for whose benefit and 
use it is issued. But the officer issuing the certificate cannot be 
compelled to affix a revenue stamp thereto, and he is not the agent 
of the United States government to collect its taxes. He is not 
concerned in the question whether the person for whose use and 
benefit it is issued shall obey the law; that is a matter between 
such person and the United States government. 



To the State 
Board of 

Education. 

1899 
September 25. 



Board of Education — Registers for School Statistics — 
Private Educational Institutions. 

The State Board of Education may furnish registers for the keeping of school 
statistics to private educational institutions free of charge. 

By Pub. Sts., c. 41, § 13, it is made the duty of persons in charge 
of private educational institutions to "make a report in writing" 
to the State Board of Education "of such statistics as the board 
shall prescribe, relating to the number of pupils and instructors, 
courses of study, cost of tuition, and the general condition of the 
institution or school under their charge." Section 14 of the same 
chapter makes it the duty of the Board to "prepare blank forms 
of inquiry for such statistics," and to "send the same to every 
such institution or school on or before the tenth day of May in 
each year." 

Your letter of the 14th inst. states that the Board has prepared 
a new school register for the use of the public schools in the Com- 
monwealth. The expense of this register is authorized by St. 
1899, c. Ill, which provides that: "The board of education may 
expend annually a sum not exceeding one -thousand dollars for the 
printing and distribution of such school registers, school blanks 
and forms for the returns of school committees as said board is 
required by law to furnish to the towns and cities of the Com- 
monwealth." The question submitted by your letter is, whether 
the Board may send these registers to the officers of private edu- 



HOSEA M. KNOWLTON, ATTORXEY-GEXERAL. 89 

cational institutions, for the purpose of compiling the statistics 
required. 

Inasmuch as it is the duty of your Board to prepare blank forms 
of inquiry for statistics to be furnished by private educational 
institutions, if in the judgment of the Board the school registers 
provided for the public schools are well adapted to be used for the 
purpose of obtaining statistics from private educational institu- 
tions which the Board is required to obtain, and for which pur- 
pose it must provide blank forms of inquiry, I see no reason why 
you may not use the registers for that purpose. 



Public Records — Ink furnished to Cities, Towns and 

Counties. 

St. 1899, c. 354, requiring public records of cities, towns, counties and the Common- 
wealth to be kept in ink "furnished by the commissioner of public records," 
does not require the commissioner to furnish ink to cities, towns and counties 
free of expense. 

The act relative to inks for public records (St. 1899, c. 354) pro- to the com- 

. 1 • 1 1 c 11- mlssioner of 

vides that: No person having the care or custody of any public ^"'^"^ 
records in any department or office of the Commonwealth, or g^ tem'i?er'>5 
of any county, city or town therein, shall use or permit to be 
used upon any public record . . . any ink excepting such as is 
furnished by the commissioner of public records ; ' ' and that the 
ink so furnished shall be examined by a chemist, under the com- 
missioner's direction. This act is a revision of St. 1894, c. 378, 
whose provisions were similar, excepting that the ink was to be 
furnished by the Secretary of the Commonwealth instead of by 
the Commissioner of Public Records. 

The question submitted by your letter of September 8 is 
whether under the statute referred to, it is your duty to furnish 
such ink to the officers of counties, cities and towns at the expense 
of the Commonwealth. I presume that whatever doubt you have 
in the matter arises out of the use of the word "furnished" in the 
statute referred to, which prohibits the use of any ink by officers 
of counties, cities and towns excepting such as is "furnished" by 



90 



OPINIONS OF THE ATTORNEY-GENERAL. 



you. The word " furnish," however, does not mean to furnish free 
of expense, but simply to provide. I do not think any inference 
can be drawn that ink is to be furnished free of expense to coun- 
ties and municipahties, merely because the law requires that it be 
furnished by the Commonwealth. 

The Legislature has annually appropriated "for the purchase 
of record ink for public records a sum not exceeding five hundred 
dollars." Under this statute the Secretary of State, upon the 
advice of the Attorney-General, orally given, used the appropria- 
tion only for the payment of ink furnished to the departments 
of the Commonwealth, and for the employment of a chemist, as 
provided by the statute, to test the purity of the ink furnished. 
There is no appropriation for furnishing ink to counties, cities or 
towns, and it is plain that the Legislature have not construed the 
act in question as entailing upon the Commonwealth the expense 
of ink furnished by its officers excepting to the departments of the 
Commonwealth. 

The purpose of the act was not to provide ink to counties and 
municipalities at the expense of the Commonwealth, but to insure 
the preservation of public records by requiring the use of ink 
approved by an officer of the Commonwealth, after chemical 
analysis under his supervision. 



Massachusetts Reformatory — Release of Prisoners — 
Commissioners of Prisons — Rules and Regulations. 

The Commissioners of Prisons have no authority to make rules and regulations 
respecting the release of prisoners from the Massachusetts Reformatory. 

By St. 18S4, c. 255, § 33, the question of whether a prisoner should be released is 
left to the discretion of the Board upon the facts in each case. 



To the Com- 
missioners of 
Prisons. 
1899 
September 26. 



Your letter of July 13 requires the opinion of the Attorney- 
General upon the following questions : — 

First. — Is it the duty of the Commissioners of Prisons to make 
a rule or rules which provide for the release of prisoners at the 
Massachusetts Reformatory? 

Second. — If such rules are made by the Commissioners of 
Prisons, should they be approved by the Governor and Council? 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 91 

Third. — If such rules are made, and approved by the Governor 
and Council, have the commissioners authority to temporarily 
suspend one or more of such rules? 

It further appears from your letter that certain rules have been 
prepared by the commissioners, and approved by the Governor 
and Council, which provide for the release of prisoners from the 
reformatory. 

The authority of your Board to make rules and regulations is 
found in St. 1884, c. 255, § 28, which provides as follows: ''The 
commissioners of prisons shall have the general supervision of the 
said reformatory, and shall make all necessary rules and regula- 
tions for the government and direction of the officers in the dis- 
charge of their duties, for the discipline of the prisoners and the 
custody and preservation of the property of the said reformatory. 
They shall make special provision for grading and classifying the 
prisoners and establish rules for dealing with them according to 
their behavior, industry in labor, and diligence in study. All rules 
and regulations adopted by the said commissioners shall be sub- 
ject to the approval of the governor and council." 

It is clear that this statute does not, in express terms, require 
or even authorize the Board to make rules and regulations respect- 
ing the release of prisoners. 

On the contrary, the exercise of the power of release vested in 
your Board by the statute appears to me to be of a nature incon- 
sistent with the pre-establishment of any fixed rules upon the sub- 
ject. It is found in St. 1884, c. 255, § 33, and is as follows : " When 
it shall appear to the commissioners of prisons that any person 
imprisoned in said reformatory *has reformed, they may issue to 
him a permit to be at liberty during the remainder of his term of 
sentence, upon such conditions as they deem best; and they 
may revoke said permit at any time previous to its expira- 
tion." 

It will be seen that the determination of the question of whether 
a person should be released under this statute is left to the dis- 
cretion of the Board upon the facts in each case. It is impossible, 
in the nature of things, for the Board to prejudge a prisoner's 
case, and determine by a series of fixed rules and regulations, pre- 



92 



OPINIONS OF THE ATTORNEY-GENERAL. 

viously formulated, whether the prisoner has ''reformed/' within 
the meaning of the statute. It was the obvious purpose of the 
Legislature to require the commissioners to find in each case, as it 
arises, whether, in their judgment, the prisoner has reformed, and 
to base their action upon their finding as to this fact. 

This being so, and there being nothing in the statute as above 
quoted authorizing the making of rules and regulations which 
refers in terms to the matter of release of prisoners, I am of 
opinion that it is not the duty of the commissioners to make rules 
providing in advance generally for the release of prisoners. 



Insane Paupers — Jurisdiction of Board of Insanity when 

THEY ARE COMMITTED SUBJECT TO OrDERS OF CoURT. 

St. 1898, c. 433, § 11, does not confer upon the State Board of Insanity authority 
to send to other States, or even to any place within this Commonwealth, 
paupers committed to a lunatic hospital, who are nevertheless subject to the 
orders of the court. 



To the State 
Board of 
Insanity. 
1899 
September 26. 



St. 1898, c. 433, § 11, provides as follows: "The board may 
transfer insane pauper inmates, including those committed under 
the provisions of section fifty of chapter eighty-seven of the Pub- 
lic Statutes, section fifteen of chapter two hundred and thirteen 
of the Public Statutes, sections sixteen and nineteen of chapter 
two hundred and fourteen of the Public Statutes, and sections 
ten, twelve and fourteen of chapter two hundred and twenty-two 
of the Public Statutes, from any one of the state hospitals or 
asylums for the insane to another state hospital or asylum for the 
insane, and may transfer and commit inmates of the other state 
institutions to the state hospitals or asylums for the insane ; and 
it may send any such insane pauper inmates to any state or place 
where they belong when the public interest or the necessities of 
the inmates require such transfer." 

The question submitted by your letter of June 23 is whether, 
under this statute, the Board of Insanity may legally discharge 
from the institutions specified in said section any of the different 
classes of inmates therein described, and send them to any place 



HOSEA M. KXOWLTOX, ATTORNEY- GENERAL. 93 

without the State before the expiration of sentence or other re- 
striction imposed by the court, and without a pardon by the 
Governor. 

The insane persons referred to in your letter include the fol- 
lowing : — 

First. — A person who, being held in prison on a charge of hav- 
ing committed an indictable offence, is not indicted by the grand 
jury, by reason of insanity. Pub. Sts., c. 213, § 15. 

Second. — A person indicted, who at the time appointed for 
trial is found to the satisfaction of the court to be insane. Pub. 
Sts., c. 214, § 16. 

Third. — One who is acquitted by the traverse jury, by reason 
of insanity. Pub. Sts., c. 214, § 19. 

In all the foregoing cases it is expressly provided that the per- 
sons so found to be insane shall be committed by the court to a 
State lunatic hospital, under such limitations as may seem proper. 

Fourth. — Convicts in the State Prison or Reformatory, who, 
having been found upon investigation to be insane, are, under the 
warrant of the Governor, removed therefrom to a State lunatic 
hospital. Pub. Sts., c. 222, § 10. 

Fifth. — Convicts in a house of correction or prison other than 
the State Prison, who, having been found to be insane, are trans- 
ferred by order of a judge of the Supreme Judicial or Superior 
Court to an insane hospital. Pub. Sts., c. 222, § 12. 

Sirth. — Persons held in any jail for trial or for sentence who 
appear to be insane and are committed by a judge to a lunatic hos- 
pital. Pub. Sts., c. 222, § 14. 

Persons of the three preceding classes, who have been com- 
mitted under the provisions of the statutes to an insane hospital, 
are to be detained therein while insane; provided, however, that, 
if they become again sane, they shall be returned to the jail, house 
of correction or State Prison, as the case may be, there to be held 
under the original order of commitment. 

Seventh. — "Any insane person confined by legal authority in a 
jail, house of correction or such county receptacle, who may be 
removed therefrom to a hospital by order of the governor." Pub. 
Sts., c. 87, § 50. 



94 OPINIONS OF THE ATTORNEY- GENERAL. 

From the foregoing enumeration it will be seen that, if the 
statute which is the subject of your inquiry is to be construed as 
authorizing the sending of such insane persons to any State or 
place where they belong, power is given to the Board, not alone to 
set aside the order of the court committing the person to the hos- 
pital, but practically to exercise the power of pardoning convicts, 
which, under the Constitution, is vested exclusively in the Gov- 
ernor. No other tribunal than the Governor, not the Legislature, 
even, may interfere with a sentence of the court in a criminal case, 
by way of pardon, or by anything which amounts to an abrogation 
of the sentence. Opinion of Justices, 14 Mass. 472. Such a con- 
struction of the statute is not to be entertained, therefore, if any 
other interpretation be possible. 

Undoubtedly the grammatical construction of the section 
quoted at the beginning of this opinion would require that the 
phrase beginning "and it may send any such insane pauper in- 
mates to any state," etc., should include all those mentioned in 
the first part of the section; but for the reasons I have already 
given, I think the Legislature did not so intend. The primary' 
purpose of the section is to authorize the transfer of insane 
paupers, whether criminal or not, from one State institution to 
another. This may properly be done in the case of persons com- 
mitted thereto by order of a judge, without interfering with the 
authority of the court or with the pardoning power of the Gov- 
ernor. It is not a violent strain upon the language of the section 
to construe this as its primary object, and to limit the applica- 
tion of the last clause, authorizing the Board to send prisoners 
to their homes in other States, as applying only to such inmates 
of State hospitals as are under the complete jurisdiction of the 
Board itself. 

I am of opinion that this is the true construction of the section, 
and that, therefore, the section does not give your Board au- 
thority to send to other States, or even to any place within the 
State, persons committed to a lunatic hospital, but who are never- 
theless subject to the orders of the court. 



HOSEA M. KNOWLTON, ATTORNEY- GENERAL. 95 



Medical Examiners — Still-born Infants — Attorney- 
General. 

Medical examiners are not entitled to the opinion of the Attorney-General, and 
therefore are not bound by it. 

When a medical examiner receives notice that the dead body of a person, who is 
supposed to have come to his death by violence, has been found, he should 
not decline to view it because it is reported to him to be the body of a still- 
born infant. If upon viewing it he determines that it is a still-born infant, 
there appears to be no reason why he should hold an autopsy. 

Your letter of July 19 inquires as to the duties of a medical Examiner*for * 
examiner in the case of still-born infants. It raises the question county. 
whether the bodies of infants born dead, which could have had no septenAer26. 
existence independent of the mother, are ''dead bodies," within 
the meaning of the statute. The question is not one upon which 
the Attorney-General may give an authoritative opinion, for 
medical examiners are not entitled to his opinion, and are there- 
fore not bound by it. I am very glad, however, to submit my 
views upon this very interesting question. 

The successive proceedings provided by Pub. Sts., c. 26, in the 
case of dead bodies are: first, a view; second, an autopsy; and 
third, an inquest. A view is to be had whenever the medical ex- 
aminer "has notice that there has been found, or is lying within 
his county, the dead body of a person who is supposed to have 
come to his death by violence." An autopsy is to be held when, 
having viewed the body, and deeming "a further examination 
necessary," he is authorized in writing by the district attorney or 
town officers to perform it. An Inquest is to be held when he cer- 
tifies that, in his opinion, the death was caused by violence, and 
so reports to the district attorney and to the justice of the Dis- 
trict Court. 

It will be seen that the question whether there shall be an 
autopsy, and subsequently an inquest, depends, so far as the 
medical examiner is concerned, upon the opinion he forms as a 
result of his view of the body, and his inquiry into the circum- 
stances; but the view itself is to be had whenever he is notified 
that there is found the dead body of a person "who is supposed to 
have come to his death by violence." The statute does not 



96 OPINIONS OP^ THE ATTORNEY- GENERAL. 

specify upon whose supposition the view is to be had. It clearly 
is not the medical examiner, for he cannot form any opinion until 
he has viewed the body. It is obvious that the intention of the 
franiers of the act was to authorize any officer, or even a private 
citizen, to give information of dead bodies found or lying within 
the district, to the end of securing in all cases of doubtful death 
the official view of a medical examiner, it being deemed wdse in 
all doubtful cases that a view should be had. I have on other 
occasions expressed my sense of the importance of action by 
medical examiners in all doubtful cases. They are, it is true, not 
to incur expense needlessly or wantonly. But their principal 
function is to furnish evidence for the detection of crime, and it 
is of the first importance that in every case of doubt the examiner 
should see the body, that he may know definitely whether there 
may have been crime. 

This being so, I do not think the medical examiner is called 
upon to deal with the discussion of the subtle question whether 
the dead body of a still-born infant can be deemed to be a "dead 
body" within the meaning of the statute. It is, nevertheless, a 
human body. If the medical examiner is notified that such a 
body is found, and that the supposition exists in the minds of 
those interested that there has been violence, he is not to refrain 
from viewing the body by any consideration of the question 
whether the body of a still-born infant is scientifically the body of 
a person. Indeed, the first question to be determined is whether 
it is in fact a still-born infant. Even if, upon a view, such appears 
to be the case, there may have been a violation of law in conceal- 
ing its death if born a bastard. Other important questions may 
arise which can only be determined accurately by the inspection 
of a skilled physician. 

If upon viewing the body he definitely determines that it is a 
• still-born infant, there appears to be no reason why he should hold 
an autopsy; but I am clearly of the opinion that, when notice is 
received by him, as provided by the statute, that there has been 
found the dead body of a person who is supposed to have come to 
his death by violence, he should not decline to view the body for 
the reason that it appears to him upon the report received to be 



HOSEA M. KNOWLTOX, ATTORNEY-GENERAL. 97 

the body of a still-born infant; but that, on the other hand, he 
should view the body, in order to be able, among other things, to 
ascertain that fact beyond doubt. 



Registered Pharmacist — Revocation of Certificate — 
New Examination. 

The Board of Registration in Pharmacy is not required to examine an applicant 
for a certificate as a plaarmaeist, if it has revoked a license formerly issued 
to him. 

Your letter of September 29 requires the opinion of the Attor- to the Board 

1 c 11 • • II k • of Registration 

ney-General upon the loUowmg ciuestion: A registered phar- in Pharmacy, 
macist, holding a certificate of registration in pharmacy, issued O ctober 3. 
by this Board, the holder of said certificate having been notified 
and appearing before the Board upon a formal complaint, the 
nature of the evidence being of such a character as to warrant 
the revocation altogether of his certificate of registration in phar- 
macy, the Board having done so under the provision of the 
pharmacy law, — has the defendant any legal right to compel 
the Board of Registration in Pharmacy to grant him an examina- 
tion, in case the applicant should prove himself qualified to secure 
a second certificate of registration in pharmacy, thereby remov- 
ing his disability and restoring him to his former position as a 
registered pharmacist?" 

A literal construction of the statute (St. 1896, c. 397) would 
undoubtedly require you to examine a person applying therefor, 
and to issue to him a certificate a^ a pharmacist, if found qualified, 
even though a license previously granted to him had been revoked 
by your Board. I cannot advise you, however, that the Legis- 
lature intended such a nullification of the provisions of its own 
statute. 

If you are authorized to revoke permanently a license granted 
to a pharmacist, as the Legislature undoubtedly intended, you 
cannot be required to examine him for a new license. 

Whether such a law is constitutional, it is not necessary now 
to consider. My only purpose is to advise you how, in my judg- 
ment, the law should be construed so as to carry out the intent of 
the Legislature. 



98 



OPINIONS OF THE ATTORNEY-GENERAL. 



High School — Manual Training School — Tuition 

MENT BY Town. 



Pay- 



To the State 
IJoaifi of 
EdiK-ation. 

IS'.)'.) 

October 6. 



The Mechanic Arts High School of Springfield is not a high school within the ipean- 
ing of St. 1898, c. 496, § 3, and the town of East Longmeadow is not required 
to pay the tuition of a child residing therein and attending such school. If 
it sees fit to pay it, it cannot ask reimbursement therefor from the treasury 
of the Commonwealth. 

Your letter of September 15 requires the opinion of the Attor- 
ney-General upon two questions : — 

First. — "Is East Longmeadow, a town in which no high school 
or school of corresponding grade is maintained, compelled to ap- 
prove the attendance of a child at the Mechanic Arts High School 
at Springfield, and so to become responsible for the tuition of that 
child?" 

Second. — ''Can the State be called upon to reimburse the town 
for such payment?" 

Upon the facts stated in a supplementary letter from you, it 
appears that the town of East Longmeadow is within the provi- 
sions of St. 1898, c. 496, § 3, which provides that: ''Any town of 
less than five hundred families or householders in which a public 
high school or a school of corresponding grade is not maintained 
shall pay for the tuition of any child who resides in said town and 
who attends the high school of another town or city, provided the 
approval of such attendance by the school committee of the town 
in which the child resides is first obtained." The section further 
provides for the imposition of a penalty upon any town which 
refuses to pay the tuition in such cases, and upon a member of 
the school committee who refuses to approve the attendance of a 
child residing in such town in the high school of some other town 
or city, if qualified to enter such high school. 

Section 4 of the same statute provides that: "Eveiy town and 
city of twenty thousand or more inhabitants shall maintain as 
part of both its elementary and its high school system the teach- 
ing of manual training." East Longmeadow, being a town of less 
than twenty thousand inhabitants, is therefore not required to 
provide manual training for its children, either in its own schools 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 99 

or by paying tuition to towns in which manual training is re- 
quired. The city of Springfield, being required to provide for 
manual training both in its elementary and high school system, 
has established the Mechanic Arts High School therefor. It is a 
school in which manual training is made a specialty, although 
other branches are taught to some extent. The tuition for chil- 
dren attending from other towns is, as I am informed, the same as 
that required for attendance at the regular high school. 

I am of opinion that the term ''high school" in the statute is 
used in its ordinary and well-understood acceptation, and signifies 
the school described in § § 1 and 2 of the same statute ; that is to 
say, in which instruction is given in "such subjects designated 
in section one as it may be deemed expedient to teach in the high 
school, and in such additional subjects as may be required for the 
general purpose of training and culture, as well as for the special 
purpose of preparing pupils for admission to state normal schools, 
technical schools and colleges." The subjects designated in § 1, 
it is true, include manual training ; but I do not think a school in 
which the teaching of manual training is made the principal and 
special work is the sort of high school intended in the section re- 
quiring towns not maintaining such an institution to pay the 
tuition of scholars attending in towns where such schools are 
maintained. This is especially true in respect to such towns as 
East Longmeadow, in which manual training is not a required 
study. 

The answer to your second question follows from a considera- 
tion of the first question. The ^provision for reimbursement to 
towns for amounts expended for tuition from the treasury of the 
Commonwealth is in the same section (§ 3) and provides that 
" all necessary sums which have been actually expended for high 
school tuition under the provisions of this section ' ' shall be reim- 
bursed to the town within its provisions. The expression "all 
necessary sums" in my judgment refers to the sums which the 
towns are compelled to pay. If the town sees fit to expend money 
for tuition which it is not compelled to, it cannot ask reimburse- 
ment therefor from the treasury of the Commonwealth. 



100 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
Adjutant- 
General. 
1899 
November 15. 



State Officers — When entitled to Opinion of Attorney- 
General. 

Officers of the State government are entitled to the opinion of the Attorney-General 
only upon questions necessary or incidental to the discharge of the duties of 
their office. 

I have the honor to acknowledge your letter of November 2, 
propounding several questions for the Attorney-General, touch- 
ing the interpretation of St. 1893, c. 367, § 33. 

Officers of the State government are entitled to the opinion of 
the Attorney-General upon questions necessary or incidental to 
the discharge of the duties of their office. The questions stated 
in your letter are interesting and important, but I am unable at 
present to see how they in any way concern the performance of 
your duties as Adjutant-General. I must, therefore, beg to be 
excused from answering them. 



To the State 
Board of 
Education. 

1899 
November 15. 



Boston School for the Deaf — Sectarian Institution — 
Approval by Board of Education — Constitutional 
Law. 

A school for the instruction of the deaf is not a public school, within the meaning 
of the eighteenth amendment to the Constitution, and the tuition of deaf 
children attending such an institution, even if it is maintained by a religious 
denomination, may be paid by the Commonwealth. 

The State Board of Education may approve the Boston School for the Deaf as an 
institution to which such children may be sent at the expense of the Com- 
monwealth. 

Your letter of October 20 requires the opinion of the Attorney- 
General upon the question whether, under the provisions of St. 
1888, c. 239, the approval l^y the Board of Education of the 
Boston School for the Deaf would be in accordance with the Con- 
stitution and statutes of the Commonwealth, particularly with 
Art. 18 of the Amendments to the Constitution. 

The statute in question provides in § 1 that : " Upon the request 
of the parents or guardians and with the approval of the state 
board of education, the governor may send such deaf mutes or 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 101 

deaf children as he may deem fit subjects for education, for a term 
not exceeding ten years in the case of any pupil, to the American 
Asylum at Hartford in the state of Connecticut, the Clarke In- 
stitution for Deaf Mutes at Northampton, or to the Horace Mann 
School at Boston, or to any other school for deaf mutes in the 
Commonwealth, as the parents or guardians may prefer." The 
section further provides for the payment of the expenses of such 
children from the treasury of the Commonwealth. 

Your letter states that the Boston School for the Deaf is under 
the control of a religious denomination, although it is claimed 
that the instruction given in the school is entirely non-sectarian. 
For the purposes, however, of the present question, I do not deem 
it necessary to inquire whether this claim be true; for I am of 
opinion that no provisions of the Constitution, or amendments 
thereto, prohibit the approval by your Board of the school under 
consideration. 

The amendment in question 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 ex- 
pended in, no other schools than those which are conducted ac- 
cording to law, under the order and superintendence of the 
authorities of the town or city in which the money is to be ex- 
pended; and such moneys shall never be appropriated to any 
religious sect for the maintenance, exclusively, of its own school." 
This amendment was adopted in 1855. Its principal purpose, as 
appears from the history of the* proceedings of the convention of 
1853, was to insure permanently the expenditure of the income of 
the Massachusetts School Fund for the support of the common or 
public schools. It is sometimes said to have been adopted for the 
purpose of preventing the appropriation of public funds for the 
support of sectarian institutions of learning. Although this result 
undoubtedly follows from the fact that the common and public 
schools of the Commonwealth are non-sectarian, such does not 
seem to have been the primary purpose of the amendment, and 
such, indeed, is not its language. Excepting in the last clause, the 
amendment contains no restriction whatever as to sect. It pro- 



102 OPINIONS OF THE ATTORNEY-GENERAL. 

vides, in terms, that public moneys, raised for the support of pub- 
he or common schools, shall be expended only in schools carried 
on under the supervision of the authorities of the town or city in 
which the money is to be expended. 

The meaning of the terms "common" or "public" schools, as 
used in the amendment, is well settled. In Jenkins v. Andover, 
103 Mass. 94, 99, speaking of public schools and common schools, 
Chief Justice Chapman said: "These are the schools to which 
the eighteenth article applies, — schools which towns are re- 
quired to maintain, or authorized to maintain, though not re- 
quired to do so, as a part of our system of common education, and 
which are open and free to all the children and youth of the towns 
in which they are situated, who are of proper age or qualifications 
to attend them, or which adjoining towns may unite to support as 
a part of the same system. . . . This class of schools does not in- 
clude private schools which are supported and managed by indi- 
viduals; nor colleges or academies organized and maintained 
under special charters for promoting the higher branches of learn- 
ing, and not specially intended for, nor limited to, the inhabitants 
of a particular locality." 

Again, in Merrick v. Amherst, 12 Allen, 500, 508, Chief Justice 
Bigelow said: "The phrases 'public schools' and 'common 
schools' have acquired under the legislation and practice of this 
State a well-settled signification. They are never applied to the 
higher seminaries of learning, such as incorporated academies and 
colleges. These, in a certain broad and comprehensive sense, are 
public institutions, because they are controlled by corporations, 
and are usually open to all persons who are willing to comply 
with the terms of admission and tuition. But the broad line of 
distinction between these and the 'public or common schools' is, 
that the latter are supported by general taxation, that they are 
open to all, free of expense, and that they are under the im- 
mediate control and superintendence of agents appointed by the 
voters of each town and city. That the amendment was intended 
to apply only to these schools is manifest, not only from the terms 
in which it is expressed, but also from the history of its origin 
and adoption as part of the organic law." 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 103 

It is to such schools that the amendment relates. But the edu- 
cation of deaf mutes is no part of the common school system of 
the Commonwealth, and has never been so regarded by the Legis- 
lature. Special provisions from time to time have been made for 
the support and training of that class of children, and for many 
years an annual appropriation has been made therefor. But the 
provisions of the eighteenth amendment have no more to do with 
these matters than with any other of the great philanthropies of 
the Commonwealth. 

It is scarcely necessary to say that the last clause of the amend- 
ment, to wit: ''such moneys [meaning moneys appropriated by 
the State for the support of public and common schools] shall 
never be appropriated to any religious sect for the maintenance 
exclusively of its own school," is not intended to prohibit the 
State from paying for the education and support of its mutes in 
any institution carried on for that purpose, public or private, and 
whether under the control of a religious denomination or not. 

For these reasons, I am of opinion that there is nothing in the 
Constitution of Massachusetts which prevents your Board from 
approving the Boston School for the Deaf as an institution to 
which such children may be sent at the expense of the Common- 
wealth. 



Massachusetts Hospital for Epileptics — Sane Epileptics 
— Commitment — Constitutional Law. 

An epileptic who is not insane cannot be committed to the Massachusetts Hospital 
for Epileptics. » 

The Legislature has no constitutional authority to enact a law authorizing the com- 
mitment to and indefinite detention in a hospital or other place of detention 
of a sane person who has committed no crime. 

Your letter of October 13 requires the opinion of the Attorney- to the state 
General upon the question: "Whether an epileptic, who is not insanity. 
insane, may legally be committed to the Massachusetts Hospital De cembe r i. 
for Epileptics, in the same manner as applies to the commitment 
of an insane epileptic of the proper class. And whether such 
commitment conveys the same power of detention as in the case 
of an insane epileptic." 



104 OPINIONS OF THE ATTORNEY-GENERAL. 

The Hospital for Epileptics was established under the authority 
of St. 1895, c. 483. Section 8 of that chapter, as amended by St. 
1899, c. 211, § 1, is as follows: "When the buildings altered or 
constructed under the provisions of this act are so far completed 
that in the opinion of the trustees the admission of patients may 
properly be made thereto, said trustees shall so notify the gov- 
ernor, who shall thereupon issue his proclamation establishing 
the Massachusetts hospital for epileptics, and thereafter the trus- 
tees may receive into said hospital for care and treatment any 
person of the age of fourteen years or more, not a criminal, who 
is subject to epilepsy, provided such person be neither an idiot, 
an inebriate or violently insane." 

By § 9 of the same chapter it is provided that: "The pro- 
visions of the Public Statutes and amendments thereto consistent 
with this act, applicable to the state lunatic hospitals, regarding 
the commitment, detention, transfer and discharge of insane 
patients, are hereby made applicable to the Massachusetts hos- 
pital for epileptics, and insane epileptics may hereafter be com- 
mitted to the said hospital for epileptics, provided such persons 
are of the class mentioned in section eight." 

Section 10 relates to the reception and detention of persons at 
their own request, and is not material to the present inquiry. 

It will be seen that, under § 9 above quoted, only epileptics who 
are insane may be committed to the Hospital for Epileptics, in the 
same manner and under the same provisions as insane persons are 
committed to other lunatic hospitals. It is scarcely necessary to 
say that, 'even if the statute purported to provide otherwise, it 
would be unconstitutional. The Legislature may not enact a law 
authorizing the commitment to and indefinite detention in a hos- 
pital, or any other place of detention, of sane persons who have 
committed no crime. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 105 



State Highway — Street Railway — Alteration of Loca- 
tion — Assessment of Expense. 

St. 1898, c. 578, §§16 and 24, confer upon the Massachusetts Highway Commission 
authority to alter a location granted by the local authorities to a street railway 
company, before the street was taken as a State highway, and to assess the 
expense thereof upon the railway company, or upon the Commonwealth, or 
upon both. An assessment upon the Commonwealth must be paid out of the 
appropriation for the commission. 

No part of such expense can be assessed upon abutters. 

Jurisdiction to alter a location granted after the street was taken for a State high- 
way remains in the local authorities. 

Your letter of July 1 1 requires the opinion of the Attorney- to the 
General upon the question "as to what proportion, if any, of the coninnssioc. 
expense of altering the location of street railway tracks on State De cembe r e. 
highways, when done under the orders of the Massachusetts 
Highway Commission, may be borne by said commission, under 
the provisions of § 16, c. 578 of the Acts of 1898; also what in- 
terpretation should be put upon the phrase 'such party or par- 
ties,' in the last sentence of said section." 

The section in question was originally enacted in St. 1864, c. 
229, § 14. So much of this section as relates to alteration of the 
location of tracks is as follows: "The location and position of 
any tracks may be altered upon application of any party inter- 
ested, by the same authority, and in the same manner, as is herein 
provided for the original location. The expense of such alteration 
shall be borne by such party as the board of aldermen or select- 
men may determine." It is obvious that the Legislature did not 
contemplate that the expense of , such alteration should necessarily 
be borne in whole, or even in part, by the company. An exam- 
ination, moreover, of the proceedings which led to the enactment 
of this section, makes it clear that the Legislature had no such 
intent. An amendment was proposed in the House, the effect of 
which would be to impose the entire expense of alteration upon 
the corporation; but the amendment was rejected. But just who 
were intended to be included in the expression "such party" is a 
question of some difficulty. 

A change in the position of railway tracks upon a street may be 
of benefit to the railway company, to the municipality or to the 



lOG OPINIONS OF THE ATTORNEY-GENERAL. 

abutters, or even to all of them. It does not necessarily follow, 
however, that authority is given to the municipal board to assess 
the expense of alteration upon all these parties. Even if it were 
constitutional to tax abutters for such expenses, which may be 
doubtful, it is very clear that the statute does not intend that this 
should be done by the Board. Statutes authorizing assessments 
for local improvements upon estates especially benefited usually 
provide that such assessments constitute a lien which may be en- 
forced upon such estates. Furthermore, if the Legislature had 
intended that abutters should be assessed, it is probable that pro- 
vision would have been made for such assessment in the usual 
manner ; to wit, by providing some rule of proportion, based upon 
peculiar and special benefits to property, by which the local au- 
thorities should be governed. No rule of assessment is laid down, 
and the matter is left to the sole discretion of the local authorities. 
An assessment under this statute might be determined upon any 
ground which the local authorities deemed just and proper, and 
might not be founded, in any great degree, if at all, upon special 
and peculiar benefits, and might even, in any particular case, 
largely exceed such benefits. This fact would constitute no objec- 
tion to an apportionment between political sub-divisions of the 
Commonwealth. Sears v. Boston, 173 Mass. 71. But it would 
be sufficient to render the statute unconstitutional when applied 
to the case of individuals; for taxation by special assessment is 
constitutionally possible only when founded upon special and 
peculiar benefits to the property, on account of which the tax is 
laid, and then only to an amount not exceeding such special and 
peculiar benefits. Sears v. Street Commissioners, 173 Mass. 350; 
Sears v. Boston, 173 Mass. 71. 

None of these objections, however, may be urged against giving 
the Board authority to assess the whole or any portion of such 
alteration upon the city or town. Cases may and undoubtedly 
do often arise where the alteration is sought solely for the con- 
venience of the public, or to make it easier and more economical 
for the municipality to keep the street in repair. In such cases it 
is not difficult to conclude that the Legislature had in mind that 
the expense of altering the tracks might be properly imposed by 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 107 

the Board ordering the alteration upon such city or town. A 
municipal corporation, it is true, may not be charged with the 
burden of furnishing money other than for public purposes. 
Prince v. Crocker, 166 Mass. 347, 361. Agawam v. Hampden, 130 
Mass. 528, 536. But the expense of altering the location of rail- 
way tracks in a street may be an expense incurred for a public 
purpose. The original location of tracks in a public highway is 
granted wholly for the use and benefit of the public, and no ex- 
clusive or private rights are granted to the corporation. A loca- 
tion is merely a license to use the public highway for a special 
method of transportation of travellers thereon, and is in fact 
granted by the municipal body only after an adjudication that it 
is required by " the interests of the public." Pub. Sts., c. 113, § 7. 
See also: Metropolitan R.R. Co. v. Quincy R.R. Co., 12 Allen, 262; 
Attorney-General v. Metropolitan R.R. Co., 125 Mass. 515, 517; 
Howe V. West End Street Ry. Co., 167 Mass. 46, 49. The recent 
legislation authorizing the building of a subway by the city of 
Boston, and the leasing of it to a street railway company, was 
upheld on the ground that the expense incurred was for public 
purposes. Prince v. Crocker, 166 Mass. 347. 

Under the authority of the case last cited, it is obvious that an 
act authorizing a city or town to lay rails for street railways and 
lease them for such use would be constitutional. This being so, 
it is no less obvious that the expense of altering the location of 
street railway tracks from their original to a new location in the 
street may be an expense incurred for a public purpose, for which 
the public may be taxed. If the alteration of a location is neces- 
sary for the convenience of the public, and improves the highway 
for ordinary travel as distinguished from street railway travel, 
the work of alteration is undoubtedly for a public use, and the 
municipality may properly be assessed therefor. 

I have no doubt, therefore, that it was the intention of the 
original act to give to the Board having jurisdiction to order 
the alteration of tracks and the assessing of the expense therefor 
the right to determine also how far such expense should be borne 
by the railway company, and whether any part of it should be as- 
sessed upon the municipality; but, for the reasons above stated, I 



108 OPINIONS OF THE ATTORNEY- GENERAL. 

am of opinion that it was not the intention of the Legislature to 
authorize the assessing of any portion of such expense upon abut- 
ters, even though their estates may be benefited by such alter- 
ation. 

The section I have been considering (St. 1864, c. 229, § 14) was 
re-enacted in the Pub. Sts., c. 113, § 22, in substantially the same 
words; but in 1898 a new statute in relation to street railways 
was enacted (c. 578), and in that act some changes were made in 
the language of the section. The new section (§ 16) provides 
that the expense of the alteration "shall be borne by such party 
or parties, and in such proportions, as the board of aldermen or 
selectmen may determine." I do not think, however, that this 
change of language can be taken to indicate any change in the 
purpose of the Legislature as to the duty of the Board having 
jurisdiction to order such alteration and to assess the expense 
thereof; and what I have said as to the interpretation of the sec- 
tion as it was originally enacted, and as it appears in the Public 
Statutes, applies with equal force, in my opinion, to the section 
as it now stands. 

It remains to consider whether, under this section, the Com- 
monwealth, in the case of street railways located on a State high- 
way, may be a party benefited in the sense that a portion of the 
expense of altering the location of such tracks may be assessed 
upon it. The legislation concerning the jurisdiction respectively 
of the State Board and the municipal authorities over street rail- 
ways in State highways is by no means clear, and, to say the 
least, is somewhat inconsistent. 

The first statute relating to this question, so far as it concerns 
State highways, is St. 1896, c. 541, which provided in § 1 as 
follows: ''Whenever in the construction of a state highway it 
becomes necessary, in the opinion of the Massachusetts highway 
commission, to change the location, relay or change the grade of 
that part of any street railway located on said highway . . . said 
commission may . . . order the company owning or operating 
said railway to make such changes: provided, Jwwever, . . . the 
cost of making the same . . . shall be paid by said commission ; 
said cost with interest at a rate not exceeding four per cent, per 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 109 

annum shall be paid by said railway company to the Common- 
wealth in ten equal annual payments." By St. 1897, c. 355, § 4, 
the provisions of the section above quoted were made to include 
the repair of a State highway as well as the construction thereof. 

In August, 1896, the Highway Commission requested the 
opinion of the Attorney-General on the question: ''Do the select- 
men 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, c. 541?" The Attorney- 
General, in November, 1896, advised the commission that while 
a State highway was in process of construction the commission 
had exclusive jurisdiction under the statute in question to deter- 
mine what changes should be made in a street railway located on 
said highway; but that when the highway was constructed, the 
jurisdiction as to such changes, conferred upon the local author- 
ities by Pub. Sts., c. 113, § 22, revived. 1 Op. Atty.-Gen. 392. 

The statute of 1896, above quoted, was repealed by the street 
railway act of 1898. St. 1898, c. 578, § 26. St. 1897, c. 355, § 4, 
above referred to, was not in terms repealed; but the statute of 
which it was an amendment having been repealed, such repeal 
must, in my opinion, be deemed to have repealed the amendment 
as well. By the statute of 1898 the jurisdiction of the State High- 
way Commission over railways already located in State highways 
before the taking thereof for the purpose of a State highway is 
defined by § 24 of that act, which provides that: ''Whenever a 
street, road, bridge or other public way in which a street railway 
location has been previously granted by the local authorities is 
laid out, taken charge of or constructed by or under authority of 
the state highway commission, said commission shall thereafter, 
so long as it has charge thereof, have and exercise with regard 
to the location and maintenance of street railways therein the 
same authority, in the same manner and subject to the same 
provisions, as is conferred by this act upon boards of aldermen 
and selectmen, such authority to be exercised in the same manner, 
subject to the same provisions, and subject to the same rights on 
the part of abutters and street railway companies, as are herein 
provided with respect to the relocation and maintenance of street 



110 OPINIONS OF THE ATTORNEY-GENERAL. 

railways in public ways not under the jurisdiction or charge of 
said commission." 

It will be seen that the effect of this section is to give, to the 
Massachusetts Highway Commission, in cases where the location 
existed before the way was taken as a State road, all the authority 
as to the alteration of tracks in State highways and the assessment 
of the expense of such alterations as is conferred upon the local 
board in the case of town and county ways. In the case, however, 
of State highways, the Commonwealth, by force of the statutes 
creating your commission and authorizing the building of State 
highways, takes the place of the municipality. The whole expense 
of the construction and maintenance of State highways is borne 
by the Commonwealth. The burden resting upon municipalities 
with respect to ways within their borders is taken from them so 
far as concerns State highways, and devolves upon the Common- 
wealth. The same considerations which, in the case of ordinary 
ways, lead to the conclusion that the expense of alteration of 
street railway tracks may be assessed upon the municipality as 
the party benefited, constrain me to the opinion that, when the 
Commonwealth takes the place of the municipality, it may be 
subject to the same assessment; particularly as the matter of 
assessment is in the hands of a commission representing the Com- 
monwealth, charged with the duty of a maintenance of such 
ways, and which is granted annually an appropriation therefor. 

This section, however, is limited in terms to the case where a 
street railway had already been constructed upon a way taken for 
the purpose of a State highway. The language of § 24 is so clear 
and unmistakable that I am unable to construe it as applying to 
street railways located upon State highways after the same have 
been constructed. The jurisdiction of the State Board over street 
railways so located is, as I have already had occasion to advise 
the Board, one of approval only. By St. 1897, c. 355, § 1, it is 
provided that: "No opening shall be made in any such road, nor 
any structure placed therein, nor shall there be made any change 
or removal of structures already placed therein, except wdth the 
approval of and in accordance with a permit from said commis- 
sion, which shall exercise complete and permanent jurisdiction 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. Ill 

over state highways." I have advised the Board that this statute 
did not and was not intended to take away the jurisdiction of the 
municipal board in the matter of granting locations for street rail- 
ways in State highways. They are to pass, in the first instance, 
upon the question whether the convenience and necessity requires 
such a location; but their action, under the statute above quoted, 
is subject to the approval of your commission. See 1 Op. Atty.- 
Gen. 317, 489. 

I find no statute conferring jurisdiction upon the State Board 
in the matter of the location and alteration of location of street 
railways in State highways, locations for which have been granted 
after the construction of the same as State highways. The result 
is that, under St. 1898, c. 578, § 24, in the case of railways, loca- 
tions for which were granted upon State highways before the tak- 
ing of the same by the Commonwealth, the sole jurisdiction as to 
change of location is in your commission; while, on the other 
hand, in the case of railways located upon a State highway after 
it has been constructed, the jurisdiction remains with the munic- 
ipal board. I cannot think that this was the deliberate intent 
of the Legislature, and I submit to your Board whether it is not 
expedient to ask for additional legislation, to the end that this 
inconsistency may be removed. 

In cases, however, where your commission has jurisdiction to 
alter the location of street railway tracks, to wit, where such 
tracks have been laid before the construction of a State highway, 
I am of opinion, for the reasons hereinbefore stated, that the 
commission may determine, in its discretion, that an alteration 
of the position of street railway' tracks ordered by it in a State 
highway is for the benefit, in whole or in part, of the Com- 
monwealth, and may therefore direct that the expense of such 
alteration shall be paid out of the appropriation made for the 
maintenance of such ways and to be expended under its direction. 
All the expenditures made by the commission for the maintenance 
of a State highway are made for the benefit of the public ; and if 
the public are benefited by the alteration of street railway tracks 
more than the company whose tracks are altered, or if the public 
alone are benefited, and no benefit whatever accrues to the street 



112 



OPINIONS OF THE ATTORNEY-GENERAL. 



railway company, the commission may determine that the ex- 
pense shall be borne, in such proportions as seem reasonable, by 
the Commonwealth and by the company; or, in the case last sup- 
posed, by the Commonwealth alone. 

I have not overlooked the fact that one-fourth of the expense 
of the construction and maintenance of State highways is ulti- 
mately borne by the county in which such ways are located. St. 
1894, c. 497, § 5. I am of opinion, however, that the meaning of 
this statute is that the county is to pay one-fourth of whatever 
expense may be lawfully incurred by your commission ; and that 
this governs the expense of alteration of locations, so far as the 
same may be assessed upon the Commonwealth by your Board. 

Upon the whole, therefore, I am of opinion that your commis- 
sion, when it orders an alteration in the location of street railway 
tracks on a State highway, is authorized to assess the expense 
thereof upon the railway company or upon the Commonwealth 
(by payment therefor out of its appropriation) or upon both, in 
such proportions as it may determine. 



To the Con- 
troller of 
County 
Accounts. 

18<JS) 
December 16. 



Inquest — Stenographer's Bill — District Court Judge — 
District Attorney. 

A justice of a district court has no authority to employ a stenographer to report 
the evidence at an inquest held by him, at the expense of the county, except 
possibly in the case of an inquest into the conduct of an election, under St. 
1898, c. 548, §§ 304-310. 

District attorneys, by virtue of their general powers as prosecuting officers, may 
order the testimony taken at an inquest when crime is suspected, and written 
out for their subsequent use, at the expense of the countj\ 

Your letter of April 11 requires the opinion of the Attorney- 
General upon the following questions : — 

First. — ''Is a county treasurer authorized to pay a stenog- 
rapher's l)ill for services rendered in an inquest held by a justice 
of a district court when such bill is endorsed as examined and 
approved by such justice?" 

Second. — "If the approval of the justice does not legalize the 
payment by the treasurer, does the additional approval by the 
district attorney so legalize?" 



HOSEA M. KXOWLTOX, ATTOHXEY-GEXERAL. 113 

By St. 1896, c. 302, it is provided that: ''When a justice has 
reason to believe that an inquest to be held by him relates to the 
death by accident of a passenger or employee upon a railroad, or 
of a traveler upon a public or private way at a railroad crossing, 
or to a death by accident resulting from or connected with the 
operation of a street railway, he shall cause a verbatim report of 
the evidence given before him to be made. The accuracy of such 
report shall be sworn to by the person making the same, and the 
report and the reporter's bill for his services, after each has been 
examined and approved in writing by such justice, shall be for- 
warded without unnecessary delay to the board of railroad com- 
missioners. Bills for such services, when approved by the said 
board, shall be forwarded to the auditor of accounts, and shall 
be paid out of the treasury of the Commonwealth, and shall be 
assessed on the several corporations owning or operating the rail- 
roads or street railways on which the accidents occurred, and shall 
be collected in the manner provided in section twelve of chapter 
one hundred and twelve of the Public Statutes." 

A similar provision was first enacted as to railroad companies 
by St. 1888, c. 365; and afterwards as to street railway companies 
by St. 1889, c. 154. These two statutes are consolidated in St. 
1896, c. 302, above quoted. It is clear that as to such inquests a 
bill for the stenographic report of inquests is payable by the State 
Treasurer, when duly approved by the justice, and afterwards by 
the Board of Railroad Commissioners. 

St. 1898, c. 548, §§ 304-310, provide for inquests into the con- 
duct of elections in certain cases. In such cases § 307 authorizes 
the justice to employ a stenographer whenever he deems it neces- 
sary. Presumably the stenographer's bill in such cases is payable 
from the county treasury. 

There is no other statute authorizing the employment of a ste- 
nographer by a justice holding an inquest; and the inference is 
verj^ strong that where the statute does not specially authorize 
such employment the justice has no right to have the testimony 
taken at the expense of the county. If the general authority con- 
fided to him to conduct inquests included the power of emplo}dng 
a stenographer, there would be no occasion for the statutes above 



114 OPINIONS OF THE ATTORNEY-GENERAL. 

referred to. Moreover, excepting as required by the district attor- 
ney for his use in conducting criminal prosecutions, there is no 
more occasion for the employment of a stenographer in an inquest 
than in any other trial before the justice. 

I am of opinion, therefore, that a justice holding an inquest, 
excepting in cases where it is expressly authorized by statute, has 
no power to authorize the employment of a stenographer at the 
expense of the county. 

It is otherwise with district attorneys. The duties of those 
officers are general in their nature, and may be said to comprise 
whatever in their discretion they may deem necessary for the 
prosecution of crime and the conviction of the criminal. It is 
often of the utmost importance, in cases of homicide, that the 
testimony before the justice at the inquest be accurately reported 
and preserved for future use. One of the principal purposes, 
indeed, of such inquests is to obtain evidence bearing upon the 
question of the homicide, and to secure and preserve the state- 
ments of persons who may be familiar with the circumstances, 
particularly of those who, by reason of their interest in the de- 
fendant, may later be unwilling to furnish evidence against him. 
No statute expressly authorizes the incurring of such expenses; 
but it would be, in my judgment, a serious impairment of the 
usefulness of a district attorney to require him to find a definite 
statutory authority for every expense necessarily incurred by him 
in prosecuting criminals and punishing crime. He is the direct 
representative of the people, and is responsible to them for the 
efficient performance of his duty to prosecute and convict per- 
sons guilty of offences against the law. It has certainly been the 
constant practice of district attorneys to employ stenographers to 
take testimony in inquests, and have the same written out for 
their use ; and the assistance afforded by the testimony produced 
at the inquest has in many cases been of great value to the prose- 
cution. 

I am of opinion, therefore, that in his discretion the district 
attorney may direct that the testimony taken at an inquest where 
crime is suspected be taken stenographically, and written out for 
his use in the subsequent conduct of the case. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 115 

I do not deem it necessary to rely for this authority upon the 
provisions of Pub. Sts., c. 217, § 4, the language of which is: 
"All legal costs and expenses arising in criminal prosecutions, 
including the fees of grand and traverse jurors for travel and 
attendance therein, unless paid by the party prosecuted, shall be 
paid by the respective counties in which they occur." I am not 
at all sure that the fair construction of this language would in- 
clude the expense in question. I prefer to rest my conclusions 
upon the general powers of district attorneys as above stated. 



Medical Examiner — Bond — Condition. 

The bond of a medical examiner must be conditioned upon the "faithful perform- 
ance of his duties." 

Pub. Sts., c. 26, § 5, provides that a medical examiner, before TotheCon- 
entering upon the duties of his office, shall "give bond with sure- bounty 
ties to the treasurer of the county, in the sum of five thousand ]3e(.eiX!r2o 
dollars, for the faithful performance of such duties." It is not 
possible to misunderstand or misconstrue this provision. The 
condition of the bond must be the faithful performance of the 
duties of the office of medical examiner. I am of opinion that you 
should not accept any other form of condition. See 1 Op. Atty.- 
Gen. 229. 

The form of a fidelity company bond, referred to in your letter, 
is not in compliance with the statute. 



Savings Banks — Authorized Investments — Net Indebt- 
edness OF Counties. 

The net indebtedness of a county is not defined in St. 1894, c. 317, § 21, par. 2, 
cl. /, but, in accordance with the ordinary construction of the term, in com- 
puting the net indebtedness of a county, sinking funds available for the pay- 
ment of such indebtedness are to be deducted. 

Your letter of November 29 requires the opinion of the Attor- to the com- 
missioners of 
ney-General upon the proper construction of St. 1894, c. 317, § 21, savings^Banks. 

par. 2, cl. /, the language of which is as follows: "The term 'net December 21. 



116 OPINIOXS OF THE ATTORXEY-GENERAL. 

indebtedness' in this statute shall be construed to denote the 
indebtedness of any city, town or district, omitting debt created 
for supplying the inhabitants with water, and deducting the 
amount of sinking funds available for the payment of such in- 
debtedness." Paragraph 2, cl. d, of the same section, authorizes 
savings banks to invest in the bonds or notes of any county in any 
of the New England States (excepting Massachusetts, as to which 
other provisions govern) whose net indebtedness does not exceed 
three per cent, of its valuation. The precise question raised by 
your letter is whether, under cl. d, notwithstanding the omission 
of the word ''county" from cl. /, the net indebtedness of a county 
means the total indebtedness less sinking funds applicable to the 
payment of the same. 

Pub. Sts., c. 116, § 20, par. 2, permitted savings banks to invest 
their funds in ''the bonds or notes . . . of any city of the states 
of Maine, New Hampshire, Vermont, Rhode Island and Connecti- 
cut whose net indebtedness does not exceed five per cent. ... or 
of any county or town thereof whose net indebtedness does not 
exceed three per cent." This chapter contains no definition of the 
term "net indebtedness." By St. 1883, c. 127, it was provided 
that: "The term 'net indebtedness,' used of city, town or district 
in any statute limiting or regulating the investment of sinking, 
trust and other funds of the Commonwealth, the deposits in sav- 
ings banks and trust companies or other like funds shall be con- 
strued to denote the indebtedness of such city, town or district 
omitting debt created for supplying the inhabitants with water 
and deducting the amount of sinking funds available for the pay- 
ment of such indebtedness." Whatever doubt may exist as to 
the determination of the question under consideration arises from 
the fact that the word " count}'" is not used in this statute ; for it 
is obvious that the word "district" is not equivalent to and does 
not include a county. It undoubtedly refers to portions of mu- 
nicipalities incorporated for special purposes, like fire and water 
supply districts. St. 1894, c. 317, is a compilation of the existing 
statutes for the protection of savings banks; and the statute of 
1883, above quoted, was incorporated in § 21, par. 2, cl. /. 

It is to be observed, however, that the language of the section 



HOSEA M. KNOWLTON, ATTORNEY- GENERAL. 117 

incorporated into the act of 1894 is somewhat changed. The defi- 
nition of "net indebtedness" in the act of 1883 was limited in 
terms to cases where that expression was used of a "city, town or 
district;" whereas in the compilation the definition is applicable 
to all cases where the term is used in that statute. Inasmuch, 
however, as the net indebtedness of a county is mentioned in the 
statute of 1894, if cl. / refers to or includes such net indebtedness 
of a county, the fiteral reading of the clause would define the net 
indebtedness of a county to be "the indebtedness of any city, 
town or district," etc. This is manifest absurdity. It is obviously 
necessary, therefore, to interpolate words to give to the para- 
graph meaning, so that it would read, "The term 'net indebted- 
ness' in this statute [when used with reference to a city, town or 
district] shall be construed to denote," etc. If this be the correct 
construction of the section, it does not refer to the net indebted- 
ness of counties. It thus appears that neither the statute of 1883 
nor cl. /, where that statute is re-enacted, is intended to refer to 
or define the net indebtedness of a county. 

Is there any significance in the omission of the word "county" 
from these statutes? In other words, did the Legislature intend 
that, while sinking funds appHcable to the payment of debts 
should be deducted in the case of a city, town or district, they 
should not be so deducted in the case of a county? I have no 
hesitation in saying that I see no reason to suppose the Legis- 
lature so intended. The term "net indebtedness," as used in 
distinction from indebtedness, necessarily means the whole in- 
debtedness, less funds on hand specially appropriated to the 
payment of such indebtedness. This is the popular and well- 
understood signification of the term. 

Why, then, was the statute of 1883 limited in terms to cities, 
towns and districts? Clearly because the statute provided that, in 
computing the net indebtedness, debts incurred for the purposes 
of water supply were not to be reckoned. Cities, towns and dis- 
tricts may establish works for the supplying of their inhabitants 
with water, and borrow money therefor, even beyond the debt 
limit. Counties do not engage in the business of supplying water. 
The principal purpose, therefore, of the statute of 1883 was to 



118 OPINIONS OF THE ATTORNEY- GENERAL. 

provide that water debts should not be reckoned in the total net 
indebtedness; and that part of the section which refers to the 
deduction of sinking funds is surplusage, unless it be supposed 
that the Legislature intended that, in computing the net indebt- 
edness of cities, towns and districts, water debts should be omitted 
on the one side, and sinking funds applicable to water debts should 
be omitted on the other side. 

Upon this construction of the statutes, and of the intention of 
the Legislature regarding the same, I have no difficulty in advis- 
ing you that, for the purpose of computing the net indebtedness 
of a county, sinking funds appropriated to the payment of said 
indebtedness are to be deducted. 



Gypsy Moth — Agent to investigate Parasites of, Outside 
Limits of Commonwealth — Governor. 

The Board of Agriculture may not send an agent to Europe to study the habits of 
the parasites of the gypsy moth with a view to their introduction into tliis 
country. 

The Governor has no authority to appoint an agent for that purpose. 

Board ^f^^^ Your letter of November 20, 1899, requires the opinion of the 
^sn^J^ture. Attomey-Gcneral upon the question whether the Board of Agri- 
ja nuary 18. culturc has authority to send a person to Europe to study the 
habits of the parasites of the gypsy moth, with a view to their in- 
troduction into this country for the purpose of destroying the 
gypsy moth, in case it can be done with safety. 

St. 1891, c. 210, § 1, defines the duty and authority of the State 
Board of Agriculture. It provides as follows: "The state board 
of agriculture is hereby authorized, empowered and directed to 
provide and carry into execution all reasonable measures to pre- 
vent the spreading and to secure the extermination of the ocneria 
dispar or gypsy moth in this Commonwealth; and to this end 
said board shall have full authority to provide all necessary ma- 
terial and appliances, and to employ such competent persons, 
servants and agents as it shall from time to time deem necessary 
in the carrying out the purposes of this act." 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 119 

I have heretofore advised one of the commissions appointed 
by the Governor, that, in the absence of express authority, it is 
not to be presumed that the Legislature has intended that its offi- 
cers and servants should travel beyond the limits of the State. 
When such authority has been intended to be given, it has been 
conferred in express terms. 1 Op. Atty.-Gen. 382. 

I am of opinion that the reasons which led to the opinion I have 
referred to require me to answer your question in the negative. 

I know of no authority under which the Governor may appoint 
and send to Europe such an agent. 



Civil Service — Veterans Preference Act — Original Ap- 
pointments — Promotion. 

The provisions of St. 1896, c. 517, are applicable only to original appointments and 
to employment in the labor service. The repeal of the words "other quali- 
fications being equal," however, in the sixth clause of § 14, c. 320, St. 1884, 
has the effect to require the preference of veterans in promotion, subject to 
the provisions in the same section that such promotions shall be on the basis 
of ascertained merit and of such examination as the Civil Service Commission 
may deem proper. 

Your letter of December 14 requires the opinion of the Attor- to the civn 

'^ . . Service Com- 

ney-General upon the question whether the provisions of the ""^^^Oq^^- 
Veterans Preference Act (St. 1896, c. 517) apply to promotions; January 27. 
and, if so, to what extent. 

An examination of the civil service law (St. 1884, c. 320) shows 
that it is intended to deal with three distinct subjects, to wit: (1) 
the selection of persons to fill offices in the government of the Com- 
monwealth and of the several cities thereof, which are required 
to be filled by appointment; (2) the selection of persons to be 
employed as laborers in the service of the Commonwealth; and 
(3) promotions in office. In no section of the statute does the 
word "appointment" appear to be used to include promotion. 

Thus, § 2 provides that rules shall be prepared for the first two 
classes, to wit : the appointment of persons to office and the em- 
ployment of persons as laborers. Section 14 provides that rules 
shall be made providing : — 



120 OPINIONS OF THE AT'J'ORNEY-GENERAL. 

First. — For the classification of " the offices and employments 
to be filled;" 

Second. — For examinations by which to test "applicants for 
office, or for employment;" and 

Fourth. — For "promotions in office." 

The sixth clause of this section distinctly distinguishes between 
appointments and promotions. It provides for "giving prefer- 
ence in appointments to office and promotions in office" to vet- 
erans. 

Section 22 requires that the name of every person "appointed, 
employed or promoted," etc., shall be reported to the commis- 
sion. 

Doubtless the expression "appointment to office" could be con- 
strued broadly enough to include promotions from one grade to 
another, if the context permitted such construction. In view, 
however, of all the provisions of the statute, some of which I have 
quoted above, I have no doubt that it was the intention of the 
Legislature to use the word "appointment" as applicable only to 
the original selection of persons for office, and to distinguish be- 
tween such original selection and the promotion of persons already 
appointed to office under the civil service rules. 

The existing Veterans Preference Act (St. 1896, c. 517), as to 
which my opinion is desired, relates, in terms, solely to appoint- 
ments to office and employments in the labor service. No part of 
the law deals with promotions. I am of opinion that the word 
"appointment" is used, and is intended to be used, in the act in 
question in the same sense in which it was used in the original act. 
It follows that none of the provisions of the Veterans Preference 
Act relate to or are applicable to promotions. 

But the repealing clause of the act provides that the words 
"other qualifications being equal" shall be stricken out from cl. 
6 of § 14 of the civil service act. As originally enacted, the clause 
was as follows : — 

"Sixth. — For giving preference in appointments to office and 
promotions in office (other qualifications being equal) to appli- 
cants who served in the army or navy of the United States in time 
of war and have been honorably discharged therefrom." 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 121 

Inasmuch as this clause deals directly with promotions, it must, 
in my judgment, be regarded as having been the intention of the 
Legislature, by the repeal of the words above quoted, so far to 
modify the original statute as to require the giving of preference 
to veterans in terms. 

The fourth clause, however, of the same section, requires that 
the commissioners shall provide in their rules ''for promotions in 
office on the basis of ascertained merit and seniority in service and 
examination as may seem desirable." This clause must be con- 
strued in connection with cl. 6, requiring the rules to provide for 
preference to veterans in the matter of promotions. In other 
words, it is the duty of your commission, under the authority of 
these two clauses, taken together, to provide in your rules for pro- 
motions on the basis of ascertained merit and upon such examina- 
tion as you may deem desirable, and, at the same time, to provide 
that veterans shall be preferred, whether they stand equally with 
other candidates or not. 

So construed, the rules to be made as to promotions do not 
differ materially from those recjuired for appointments to office 
under § 2 of the Veterans Preference statute. That section per- 
mits veterans to be preferred, but only in cases where they have 
shown themselves capable of filling the office in question after 
examination. 

Replying specifically, therefore, to the question submitted in 
your letter, I have to say that I am of the opinion that the provi- 
sions of the Veterans Preference Act (St. 1896, c, 517) are, and 
are intended to be, applicable only to original appointments and 
employments in the labor service ; but that the repeal of the words 
"other qualifications being equal," in the sixth clause of § 14 of 
the original statute, has the effect to require the preference of 
veterans in promotions, subject to the provisions in the same sec- 
tion that such promotions shall be on the basis of ascertained 
merit and of such examination as your Board may deem proper. 



122 



OPIXIONS OF THE ATTORNEY-GENERAL. 



To the State 
Board of 
Insanity. 

1900 
January 27. 



Insane Persons — Escape — Duty of Superintendent of 
Hospital to recapture — Discharge — Trustees of 
State Insane Hospital. 

It is the duty of the superintendent of a hospital to which an insane person has been 
committed by the court to retake such person if he escapes. 

There is no statute or rule of law which limits the time witliin which such insane 
person may be legally retaken. 

If the facts required by Pub. Sts., c. 87, § 40, are found to be true, a person who 
has been committed to the State Insane Hospital may be discharged by the 
trustees, whether he is at that time actually in custody or has escaped. 

Your letter of January 9 requires the opinion of the Attorney- 
General upon the following questions, to wit : — 

First. — Whether an insane person who has been lawfully com- 
mitted to an insane hospital and has escaped therefrom may be 
lawfully apprehended and received back into said hospital with- 
out a new commitment ; 

Second. — Whether length of time affects the legality of such 
action; and 

Third. — Whether the trustees have authority to discharge 
such insane person while his whereabouts are unknown to them. 

First. — The commitment of a person to an insane hospital by 
a court of competent jurisdiction is based upon a finding by the 
court that the person so committed should by reason of his in- 
sanity be restrained of his liberty because the community would 
be in danger by reason of his being at large, or that his own wel- 
fare requires such commitment. The reasons which authorized 
the original commitment do not cease to operate because the per- 
son so committed has escaped; on the other hand, in most cases 
they are probably strengthened. The warrant of commitment 
prepared by virtue of St. 1898, c. 433, § 19, requires the superin- 
tendent to receive the patient into the hospital, "and there safely 
keep according to law." Moreover, Pub. Sts., c. 87, § 45, provides 
that the "expense of pursuing such pauper lunatics as escape" 
shall be, among other expenses, reimbursed to the trustees of the 
hospital. 

I have no hesitation in advising you that it is not only the right 
of the superintendent, but his duty, to retake a person committed 
by the court, who has escaped. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 123 

Second. — There is no statute or rule of law that limits the time 
within which an insane person who has escaped may legally be re- 
taken. 

Third. — Pub. Sts., c. 87, § 40, provides, in substance, that 
any two of the trustees of the State Insane Hospital "may dis- 
charge any person confined therein, if it appears that such person 
is not insane, or, if insane, will be sufficiently provided for by 
himself, his guardian, relatives, or friends, or by the city or town 
liable for his support, or that his confinement therein is not longer 
necessary for the safety of the public or his own welfare." Taken 
literally, this authorizes the discharge only of persons who are, in 
the words of the statute, "confined therein." I am of opinion, 
however, that the statute is not to be taken so literally, and that, 
if the facts required by the statute are found to be true, the person 
who has been committed may be discharged, whether at the time 
he is actually in custody or has escaped. 



Insurance — Foreign Insurance Company — Reinsurance 
— Resident Agent. 

a foreign insurance company doing business in this Commonwealth is not required, 
in case it desires to reinsure a risk, to take out its policy of reinsurance by and 
through an agent resident in this Commonwealth. 

St. 1894, c. 522, § 84, provides as follows: "Foreign companies xotheinsur- 
admitted to do business in the Commonwealth shall make con- missioner. 

1900 

tracts of insurance upon lives, property, or interests therein only Fe bruary e. 
by lawfully constituted and licensed resident agents." 

The last clause in the same section is as follows: "Whenever 
any company negotiating insurance effects a reinsurance of any 
part thereof, otherwise than through licensed resident agents, the 
entire tax thereon shall be paid by the original insuring company, 
and the tax commissioner shall make no deduction on account of 
such reinsurance." 

Your letter of December 28 requires my opinion upon the fol- 
lowing question: "If a foreign insurance company, authorized 
to do business in Massachusetts, issues a policy on property, lives 
or interests in this Commonwealth, which for any reason it desires 



124 OPINIONS OF THE ATTORNEY- GENERAL. 

to reinsure, must such company take out its policy of reinsurance 
by and through an agent resident in this Commonwealth, and 
must the policy of reinsurance be issued by such licensed resident 
agent?" 

I am of opinion that a foreign insurance company doing busi- 
ness in Massachusetts is not required, in case it desires to reinsure 
a risk, to take out its policy of reinsurance by and through an 
agent resident in this Commonwealth. I base this conclusion upon 
a number of considerations, among them the following : — 

The first clause of § 84, as above quoted, was originally enacted 
in St. 1887, c. 214, § 84. The last clause was first enacted in St. 
1888, c. 154, § 1, Upon the codification of the insurance laws 
the two clauses were put in the same section. The fact that the 
last clause was enacted after the first clause became a law indi- 
cates the intention of the Legislature that the first clause should 
not apply to reinsurance, as it plainly contemplates that con- 
tracts of reinsurance may be made "otherwise than through 
licensed resident agents." 

Furthermore, I am of opinion that the word "reinsurance," as 
used in the latter clause, is not intended to signify or include 
original insurance. The word "insurance" is defined in St. 1894, 
c. 522, § 3, as amended by St. 1897, c. 66, as "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, loss or injury of something in which the other party 
has an interest." While it would be possible to hold that this 
definition covers reinsurance by one company of a risk taken by 
another, it is not necessary so to strain the definition, especially 
in view of the fact that the words " insurance " and "reinsurance " 
are both used in the same connection in the clause in question. 

The purpose for which the latter clause was enacted points to 
the same conclusion. Insurance companies were by Pub. Sts., 
c. 13, § 33, required to pay a franchise tax based upon the amount 
of premiums received by them, deducting unused notes given for 
premiums, return premiums on cancelled policies, and the sums 
actually paid to other insurance companies incorporated under the 
laws of the Commonwealth, or to the agents of foreign companies 
for reinsurance. But, as it might be difficult for the taxing officer 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 125 

to verify the amounts so claimed to have been paid to a foreign 
insurance company for reinsurance, the clause in question was 
enacted as an amendment of § 33, with the obvious purpose of 
obviating such difficulty in case reinsurance is obtained otherwise 
than through licensed resident agents. If the reinsurance is 
obtained through a licensed resident agent, the amount so paid 
can be readily ascertained and deducted from the original pre- 
mium for the purpose of the tax. If, however, companies see fit 
to reinsure directly from the home office, the tax is imposed upon 
the entire original premium, leaving the parties effecting such 
reinsurance to apportion the tax among themselves as they see fit. 



Boston & Albany Railroad Company — Lease — Corpora- 
tion — Charter — Rights of Commonwealth to Regu- 
late Traffic and acquire Ppoperty of Railroad — 
Constitutional Law — Impairing Obligation of Con- 
tract — Interstate Commerce — Waiver — Assign- 
ment OF Lease — Public Policy — House of Repre- 
sentatives — Attorney-General. 

The House of Representatives has no authority to fix a limit of time within which 
the Attorney-General shall discharge his statutory duty of advising the 
General Court, or either branch of it. 

The Boston & Albany Railroad Company, incorporated under the laws of both 
New York and Massachusetts, is, so far as the restrictions, duties and obli- 
gations imposed upon the Boston & Worcester Railroad Company and the 
Western Railroad Company, its constituent domestic corporations by their 
charters, are concerned, within and subject to the jurisdiction of the Com- 
monwealth as though it were incorporated wholly under the laws. of Massa- 
chusetts. 

The jurisdiction of the State to regulate rates of traffic is limited to such traffic as 
begins and ends within its borders. 

The charters of the Boston & Worcester Railroad Company and the Western 
Railroad Company contained a contract whereby the Commonwealth agreed 
that it would not exercise its power of regulating rates of traffic so as to reduce 
the profits below ten per cent, per annum. The obligation of this contract 
subsists, notwithstanding the provision of Pub. Sts., c. 112, § 180, that traffic 
rates shall at all times be subject to alteration by the Legislatures, unless the 
corporation has waived its right under its original charters. 

By accepting the benefit of legislation giving it additional privileges during the 
existence of general laws inconsistent with its original charters, the corpo- 
ration has subjected itself to all the provisions of such general laws. The 
Commonwealth, therefore, has the right to regulate the rates on the Boston 
& Albany Railroad, although dividends are thereby reduced below eight 
per cent, per annum. 



126 



OPINIONS OF THE ATTORNEY-GENERAL. 



The Legislature may reserve this right to the Commonwealth, while ratifying the 
proposed lease of the Boston & Albany Railroad to the New York Central & 
Hudson River Railroad Company. 

The Commonwealth may acquire the property of the Boston & Albany Railroad 
either by eminent domain or by purchase. The compensation in the first 
case would be the fair net cash value of the property taken, wliich would 
include only the property necessary to the carrying on of the railroad busi- 
ness; in case of purchase, the Commonwealth must pay such sum as would 
reimburse to the road the "cost of making the railroad," with a net profit 
thereon of ten per cent, a year. 

If the Commonwealth assents to the proposed lease, it does not expressly or by 
implication waive or surrender any rights reserved to it under existing laws. 

The sum of $5,500,000, the proceeds of property belonging to the lessor sold by it 
to the lessee, should be deducted from the damages in case of taking, and 
from the price to be paid in case of purchase. 

Questions of public policy are peculiarly within the province of the Legislature, and 
the Attorney-General is not authorized to express an opinion upon them. 

The bonds acquired by the Boston & Albany Railroad under the terms of the lease 
and agreement, when ratified by the Commonwealth, will become the abso- 
lute property of the corporation; and the interest of the bonds may be divided 
among the stockholders, or the bonds may be sold and the proceeds divided. 

The lessee under the proposed lease has no authority to assign its lease or to under- 
let the lines of the Boston & Albany Railroad or any of the branches acquired 
by the lease. Such lease, though it may be annulled by the joint action of 
the contracting parties, cannot be modified, changed or amended by them 
without the consent of the Commonwealth. 

But quaere, as to the remedy of the Commonwealth if the lessee should assign the 
lease. 

Such obligations as are now incumbent upon the Boston & Albany Railroad under 
the Public Statutes will continue in full force under the proposed lease. The 
duty of complying with the provisions of St. 1893, c. 131, will fall upon the 
lessee, and not upon the lessor. 

It is not within the jurisdiction of the House of Representatives to require the 
Attorney-General "to prepare and furnish" to it "a list of all the special 
legislation affecting the Boston & Albany Railroad," such order not being 
a question of law within the meaning of Pub. Sts., c. 17, § 7. 



To the House 
of Representa- 
tives. 

1900 
March 16. 



I have the honor to acknowledge the receipt of two orders 
adopted by the House of Representatives, respectively on the 
thirteenth and fourteenth days of February last, requiring the 
opinion of the Attorney-General upon certain questions therein 
stated. 

"The orders purport to require the Attorney-General to return 
his answers to the questions submitted on or before March 15, 
1900. The Honorable House of Representatives is doubtless 
aware that it has no authority to fix a limit of time within which 
the Attorney-General shall discharge his statutory duty of advis- 
ing the General Court, or either branch thereof, under the statutes 



HOSEA M. IvNOWLTON, ATTORNEY- GENERAL. 127 

of the Commonwealth. In deference, however, to the expressed 
wishes of the House of Representatives, as indicated by the hmi- 
tation of time set forth in the orders, I have given such immediate 
consideration to the questions submitted as the other duties of 
this office have permitted, with a view to complying, so far as 
practicable, with the wishes of your Honorable body. 

Some general considerations affecting all the questions may 
properly be stated before proceeding to answer them in detail. 

1. The Boston & Albany Railroad Company is a corporation 
formed by the consolidation, under authority of St. 1867, c. 270, 
of the Boston & Worcester Railroad Corporation, incorporated by 
St. 1831, c. 72, and the Western Railroad Corporation, incorpo- 
rated by St. 1833, c. 116. By St. 1869, c. 461, it was further 
authorized to unite and consolidate with itself in one corporation 
the Albany & West Stockbridge Railroad Company and the Hud- 
son & Boston Railroad Corporation, incorporated under authority 
of and existing in the State of New York, under the name of the 
Boston & Albany Railroad Company. Legislation authorizing 
such a consolidation was also enacted in New York (N. Y. St. 
1869, c. 917). 

Under these statutes two corporations were created, one being 
the Boston & Albany Railroad Company, incorporated under 
authority of the statutes of Massachusetts, and the other being 
the Boston & Albany Railroad Company, incorporated under the 
statutes of New York. Both corporations were, and are, com- 
posed of the same persons and governed by the same officers. 
Together they acquired the ownership and control of, and have 
continued to own and control, a railway line extending from 
Boston to Albany. 

The effect of such a dual organization and the relative rights 
and jurisdiction of the several States under which it exists have 
been considered in many cases, both in the federal and State 
courts. I discussed the matter somewhat fully in an opinion given 
to the Senate and House of Representatives concerning the le- 
gality of the lease of the Old Colony Railroad Company to the 
New York, New Haven & Hartford Railroad Company, submitted 
March 16, 1894 (1 Op. Atty.-Gen. 118), in which I reached the 



128 OPINIONS OF THE ATTORNEY-GENERAL. 

conclusion, and so advised the Senate and House of Representa- 
tives, that, so far as concerned their relations to the sovereignty, 
they were two corporations; but that, so far as concerned the 
ownership of their property, the carrying on of their business and 
their relations to the public, they constituted, to all intents an 
purposes, one corporation, each, nevertheless, owing allegiance 
to the State granting its charter, and governed by the laws of 
such State in matters exclusively within its jurisdiction. 

It has been suggested that, in consequence of this dual incorpo- 
ration, the Commonwealth has lost some of the rights which it 
may have had over the corporations of which the consolidated cor- 
poration was composed. Under the New York statute, however, 
authorizing the consolidation (N. Y. St. 1869, c. 917), it was ex- 
pressly provided that "such act of consolidation shall not release 
such new corporation from any of the restrictions, disabilities or 
duties of the several corporations so consolidated." Similar pro- 
visions were contained in the Massachusetts statutes. If, there- 
fore, any such restrictions, duties or obligations were contained in 
the special acts referring to the consolidated corporations in Mas- 
sachusetts, or in general laws applicable to such corporations, I 
deem them to have been continued and to remain in force as to 
the consolidated corporation ; and am of the opinion that the con- 
solidated corporation is, so far as concerns the restrictions, duties 
and obligations imposed upon the constituent domestic corpora- 
tions by their charters, within and subject to the jurisdiction of 
the Commonwealth of Massachusetts, as though it w^re incorpo- 
rated only under the laws of this Commonwealth. 

2. It is to be observed, further, that, under the construction 
given by the federal courts to the commerce clause of the Con- 
stitution of the United States, and the interstate commerce laws 
enacted by Congress under authority thereof, the jurisdiction of a 
State to regulate rates of traffic is limited to such traffic as begins 
and ends within the State, and that it has no authority to regulate 
traffic beginning within the State and ending without the State, or 
vice versa, or traffic beginning and ending without the State. It 
cannot even regulate local traffic with reference to the revenues re- 
ceived by the railroad from interstate traffic, or impose upon inter- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 129 

state traffic an undue portion of the burden of operating expenses, 
so that a loss which may be incurred by the corporation from local 
traffic is left to be made up by the profits of interstate traffic. 
Consequently, whatever is hereafter said with reference to the 
regulation of rates of traffic by the Commonwealth is to be taken 
to refer to such traffic only as is within the jurisdiction of the Com- 
monwealth. 

Having in view these considerations, I beg to reply to the ques- 
tions submitted as follows : — 

1 (order of February 13). "Does the Commonwealth, under 
existing laws and charters, have the right to reduce rates on the 
Boston & Albany Railroad, if thereby dividends are reduced below 
eight per cent, per annum?" 

In order intelligently to consider this question, it is necessary 
to review the legislation of the Commonwealth looking to the reg- 
ulation of rates of traffic, so far as the same are applicable to the 
Boston & Albany Railroad Company. 

The charter of the Boston & Worcester Railroad Company (St. 
1831, c. 72) contained the following provision, to wit: — 

Section 5. Be it further enacted, That a toll be, and hereby is granted 
and established, for the sole benefit of said corporation, upon all passengers 
and property of all descriptions which may be conveyed or transported 
upon said road, at such rates per mile as may be agreed upon and es- 
tablished from time to time by the directors of said corporation. The 
transportation of persons and property, the construction of wheels, the 
form of cars and carriages, the weight of loads, and all other matters and 
things in relation to the use of said road, shall be in conformity to such 
rules, regulations and provisions, as the directors shall from time to time 
prescribe and direct, and said road may be used by any persons who 
shall comply with such rules and regulations: provided, however, that if, 
at the expiration of ten years from and after the completion of said road, 
the net income or receipts from tolls, and other profits, taking the ten 
years aforesaid as the basis of calculation, shall have amounted to more 
than ten per centum per annum upon the cost of the road, the Legislature 
may take measures to alter and reduce the rate of tolls and other profits, 
in such manner as to take off the overplus for the next ten years, calcu- 
lating the amount of transportation upon the road to be the same as the 
ten preceding years; and at the expiration of every ten years thereafter, 
the same proceedings may be had ; provided, further, that the legislature 



130 OPINIONS OF THE ATTORNEY-GENERAL. 

shall not at any time, so reduce the tolls and other profits as to produce 
less than ten per centum upon the cost of the said railroad, without the 
consent of said corporation. 

This statute was enacted June 23, 1831. The charter of the 
Western Railroad Company contained a section identical in its 
provisions with that contained in the charter of the Boston & 
Worcester Railroad Corporation above quoted. This charter was 
enacted in 1833 (St. 1833, c. 116). 

Shortly before these charters took effect, however, a general 
law was enacted (St. 1831, c. 81, approved March 11, 1831), 
which provided that ''all acts of incorporation which shall be 
passed after the passage of this act, shall at all times hereafter be 
liable to be amended, altered or repealed at the pleasure of the 
legislature, and in the same manner as if an express provision to 
that effect were therein contained; unless there shall have been 
inserted in such act of incorporation, an express limitation as to 
the duration of the same." 

This provision has continued in force substantially to the pres- 
ent time, and is now § 3 of c. 105 of the Public Statutes. 

The question thereupon at once arises whether this general 
law, subjecting all special charters thereafter enacted to amend- 
ment or repeal at the pleasure of the Legislature, is to be regarded 
as reserving to the Legislature the right to amend the provisions 
of § 5 of the charter of the railroad company, above quoted. 
There can be no doubt that as a general rule the statute above 
quoted, reserving to the Legislature the right to amend, alter or 
repeal charters, is to be regarded as being incorporated in subse- 
quent charters, governing and limiting their provisions. On the 
other hand, however, it is equally certain that the Legislature 
may grant a charter which shall not be subject to the provisions 
of this general law. No Legislature can bind its successor; and 
it is clearly within the power of the General Court to enact a law 
containing an unalterable contract, notwithstanding the restrain- 
ing provisions of a prior general statute like the one in question. 
A striking illustration of the exercise of this power is to be found 
in St. 1897, c. 500, relating to the Boston Elevated Railway Com- 
pany. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 131 

There is much ground for the contention that the prior general 
law, reserving to the Legislature the right to repeal or amend all 
charters subsequently granted, is to be regarded as incorporated 
by implication into every subsequent charter, controlling it to the 
extent that, however absolute its provisions, they are enacted 
subject to the right of amendment by the Legislature. The ques- 
tion has been more than once discussed by the Supreme Judicial 
Court, but never determined ; and it may be that when it becomes 
necessary the court may adopt the construction suggested. Should 
it be so held, there is nothing to prevent the Legislature from 
regulating rates of traffic upon the Boston & Albany Railroad, 
excepting certain general constitutional restrictions upon its au- 
thority, which will be hereafter considered. 

Inasmuch, however, as the Honorable the House of Representa- 
tives is entitled to the opinion of the Attorney-General, however 
difficult or uncertain the question submitted, I am constrained to 
say that in my opinion the section relating to tolls and fares, 
above quoted, in the charter of the Boston & Worcester Railroad 
Company, was intended to constitute, and did constitute, a con- 
tract between the Commonwealth and the railroad company, 
which could not be annulled except by the waiver or consent of 
the company. The same is true of the similar provisions in the 
charter of the Western Railroad Company. At the time these 
charters were granted, railroad transportation was in its infancy. 
Experience furnished no guide as to the probable profits which 
might accrue from such methods of transportation. The section 
in question was obviously a declaration by the Legislature that 
ten per centum upon the cost of the road should be regarded as 
a reasonable compensation, and the section in question so de- 
clared. It provided, upon the one hand, that from time to time 
rates of traffic might be regulated so as to reduce the profits of 
the company to ten per centum, and, on the other hand, that 
such regulation should not reduce profits below that figure. In 
consideration, therefore, of the reservation of authority to regu- 
late fares so as to reduce profits to the percentage named, the 
Commonwealth agreed that it would not exercise its power of 
regulation so as to reduce such profits below that amount. This, 



132 OPINIONS OF THE ATTORNEY-GENERAL. 

being accepted by the company, clearly amounted to a contract. 
The fact that the estimate of reasonable and proper profits was a 
large one, and that consequently the bargain turned out to be an 
improvident one on the part of the Commonwealth, does not alter 
the question. Being such a contract, the State became subject 
to the provisions of the Constitution of the United States, that 
no State shall pass any law impairing the obligation of contracts. 

The next inquiry is, whether this law has been amended or re- 
pealed by the consent, express or implied, of the corporation. 
The Revised Statutes, in c. 39, § 83, provided substantially that 
the Legislature might regulate rates of toll upon any railroad, 
but with the proviso that such tolls should not be reduced so as 
to produce less than ten per centum per annum net profit to the 
corporation. The language of this section differs somewhat 
from the provisions of the charters of the railroad in question; 
but as, in my opinion, it could not operate to repeal the provisions 
of the charters, it is unnecessary to consider it further. 

The provisions of the Revised Statutes remained substantially 
in force as the law of the Commonwealth until 1870, when in con- 
sequence of the recommendation of the Railroad Commissioners, 
it was provided (St. 1870, c. 325, § 1) that "any railroad corpora- 
tion may establish for its sole benefit, fares, tolls and charges upon 
all passengers and property conveyed or transported on its rail- 
road, at such rates as may be determined by the directors thereof, 
and may from time to time, by its directors, regulate the use of its 
road: provided, that such rates of fares, tolls and charges and 
regulations, shall at all times be subject to revision and alteration 
by the legislature, or such officers or persons as the legislature may 
appoint for the purpose, anything in the charter of any such rail- 
road corporation to the contrary notwithstanding." This section 
has continued in force as the law of the Commonwealth until the 
present time, and is incorporated in the Public Statutes as c. 112, 
§ 180. 

This was clearly an attempt by the Legislature to repeal all 
charter provisions limiting the power of the Legislature to regulate 
rates of traffic. But, for the reasons I have already stated, I am 
of opinion thgit it was ineffectual to repeal any such limitations as 



1 



1 



HOSEA M. KNOWLTON, ATTORXEY-GENERAL. 133 

amounted to a contract between the Commonwealth and a corpo- 
ration, like the sections in the charters of the Boston & Worcester 
Railroad Company and the Western Railroad Company, relating 
to their right to regulate tolls, if those sections were then still in 
force. 

I have examined with some care all the provisions of the stat- 
utes, general and special, prior to the year 1870, relating not only 
to the Boston & Worcester Railroad Company and to the West- 
ern Railroad Company, but to the other corporations which, by 
consolidation with it, became the Boston & Albany Railroad Com- 
pany; and I do not find therein anything which can, in my judg- 
ment, be regarded as a waiver of the contract on the part of the 
railroad company. On the contrary, all the statutes so enacted 
appear clearly to have preserved, and to have intended to pre- 
serve, the special rights and contracts secured to it under its 
charter. 

In my opinion, therefore, the provisions limiting the authority 
of the Legislature to regulate rates of traffic on the Boston & 
Albany Railroad Company, contained in the charters of the com- 
panies from which it was formed, remained in force and binding 
upon the Commonwealth until the statute of 1870. 

It remains to consider whether anything has happened since 
that time to bring the corporation within the provisions of the 
laws giving to the Legislature full authority to regulate rates of 
traffic on railroads within its jurisdiction. There can be no doubt 
that the corporation may waive its right under the original 
charter, and subject itself to the provisions of the general laws. 
If it has accepted the benefit of legislation giving it important 
additional rights and privileges granted during the existence of 
general laws which are inconsistent with its original charter, the 
acceptance of such grants and privileges may well be deemed to 
be a consent that it shall be governed by such laws rather than 
by the terms of the original contract, entered into under different 
conditions and different laws. 

I find that since the year 1870 many such statutes have been 
enacted. The most striking instance of such legislation is per- 
haps St. 1889, c. 163, authorizing the Boston & Albany Railroad 



134 OPINIONS OF THE ATTORNEY-GENERAL. 

Company to increase its capital stock by an amount not exceed- 
ing ten millions of dollars, and authorizing a capital of thirty 
millions of dollars in the whole. This act was accepted by the 
company, and its capital stock has been increased, although not 
to the full amount authorized by the act. 

What was the effect of the acceptance of this act (and other 
like acts) by the company? When it was enacted, the general 
laws of the Commonwealth (St. 1870, c. 325, § 1, re-enacted in 
St. 1874, c. 372, § 179, now Pub. Sts., c. 112, § 180) gave to 
the Commonwealth the power to regulate rates and fares without 
regard to the amount of dividends to be earned upon the capital 
stock of railroad corporations, and declared that this right should 
be reserved to the Commonwealth, anything in the charter of any 
railroad company to the contrary notwithstanding. The corpo- 
ration might have continued to stand upon its original charter 
and to adhere to the terms of its original contract; but, when, 
under general laws inconsistent with its charter, it accepted a 
grant of additional capital, it must be taken, in my judgment, to 
have accepted such grant subject to the general laws applicable 
to the increased capital stock so granted. The charter of a rail- 
road corporation is not merely the original act, but all the acts 
passed with reference to the corporation. I find no difficulty, 
therefore, in reaching the conclusion that, at least as to such 
additional stock, there existed no right to the corporation to 
earn upon it a ten per cent, dividend ; and that, as to such addi- 
tional stock, the provisions of the original charter are inap- 
plicable. 

It may be contended, however, that, even if it be conceded that 
stock issued under the authority of laws in force after 1870 must 
be taken to be subject to the general laws then in force, the rights 
of the original stockholders, for whose benefit the original charter 
was granted, are still preserved. But it is difficult if not impossi- 
ble, to separate the corporation, which has accepted the benefit of 
general laws enacted since 1870, from its stockholders or any part 
of them, or to classify those stockholders so that a portion have 
rights that others do not have. Such a distinction is not possible. 
The different issues of stock have not been kept distinct. The 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 135 

holder of a share of the Boston & Albany Railroad stock of to-day 
has no way of knowing whether the share was part of the original 
issue or of some increase; nor would the corporation itself, if 
such a distinction should be attempted, have any method of deter- 
mining who among its shareholders are entitled to the benefits 
of its original charter and who are subject to the provisions of 
the general laws. It would, moreover, be unreasonable to sup- 
pose that it was the intention of the Legislature, or even the cor- 
poration, that there should be a distinction between increased 
stock, so that original stock should have the right to earn ten 
per cent, dividends, while as to stock authorized after the statute 
of 1870 the Legislature may regulate rates of traffic so that it 
could not earn that amount. Such a division of profits would be 
impracticable. 

I am of opinion, therefore, that, when the corporation accepted 
the benefit of statutes enacted in its favor by the Commonwealth, 
which were in fact amendments of original charter, it brought 
itself within the provisions of its general statutes in force at the 
time of such amendments, even though those statutes were incon- 
sistent with its original charter. 

There are no direct adjudications by the court on this question; 
but in Attorney-General v. Old Colony Railroad, 160 Mass. 62, 
Field, C.J., in delivering the opinion of the majority of the court, 
says (p. 85): "In view of the many changes in the charters of 
nearly all the railroad corporations of the Commonwealth occur- 
ring since the year 1870, which have been accepted by the 
corporations, it may well raise a doubt whether these corpora- 
tions have not consented to be subject to any laws which the 
Legislature, under its general powers, may constitutionally enact 
concerning fares or tolls." In the same case, Knowlton, J., 
delivering the opinion of the minority, says (p. 95): ''By St. 
1870, c. 325, § 1, . . . the Legislature terminated the right of 
these railroad corporations to go on expending money and in- 
creasing the cost of their railroads under a contract which per- 
mitted them, without the possibility of legislative interference, 
to charge fares which would give them an income of ten per 
cent, on the cost of the road, if such a right had previously 



136 OPINIONS OF THE ATTORNEY-GENERAL. 

existed." These extracts, while not to be taken as determining 
definitely the question under discussion, may yet be said to indi- 
cate clearly the views of the court in the matter; and I have 
little doubt that, if the question were directly presented, the 
Supreme Judicial Court would have no difficulty in coming to 
the conclusions above indicated. 

Assuming, therefore, that there are no special restraining stat- 
utes now in force, the Boston & Albany Railroad Company is 
subject to the general statutes (Pub. Sts., c. 112, § 180) authoriz- 
ing the Legislature to fix tolls. There is no doubt of the consti- 
tutionality of the statute. The only limitation upon the power of 
the Legislature is that rates shall not be fixed so low as entirely 
to deprive the corporation of any profitable use of its property. 
In other words, they must be such as to permit the corporation to 
earn a reasonable profit. What is a reasonable profit must be 
finally determined by the courts. It can scarcely be questioned 
however, that a profit of something less than eight per cent, per 
annum would be a reasonable profit. 

1 am of opinion, therefore, that the Commonwealth, under exist- 
ing laws and charters, has the right to reduce the rates on the 
Boston & Albany Railroad, if thereby dividends are reduced below 
eight per cent, per annum. 

2 (order of February 13). "If so, would such right be in any 
way impaired by the Commonwealth's ratifying the proposed 
lease of the Boston & Albany Railroad to the New York Central 
& Hudson River Railroad Company; and, if so, in what manner 
and to what extent?" 

In the absence of any limitation upon the consent of the Com- 
monwealth, I am of opinion that, having authorized the imposi- 
tion of the burden of rentals equivalent to an eight per cent, 
dividend upon the stock of the Boston & Albany Railroad, subse- 
quent legislation so fixing traffic rates of the leased railroad as 
will make it impossible for the lessee to earn the amount so fixed 
would be a violation of that clause of the Fourteenth Amendment 
which forbids a State to deprive a person or corporation of prop- 
erty without due process of law, and would therefore be beyond 
the power of the Commonwealth. 



HOSEA M. IvNOWLTON, ATTORNEY-GENERAL. 137 

I have examined, however, House Bill No. 36, which is the bill 
with reference to which the questions submitted by the Honorable 
House of Representatives relate ; and I am of opinion that, under 
the second section of said bill, the right is reserved to the Com- 
monwealth to fix rates to the extent and in the manner now 
enjoyed notwithstanding the proposed lease. Such a reservation 
is clearly within the power of the Legislature, and is binding 
upon the parties to the lease. 

3 (order of February 13). " By what method or methods, and 
at what probable price, under existing laws and charters, could the 
Boston & Albany Railroad be bought by the Commonwealth on 
March 1, 1900?" 

1 (order of February 14). "What are the rights of the Com- 
monwealth in the matter of taking, by purchase or otherwise, the 
property and franchises of the Boston & Albany Railroad Com- 
pany; how much would such purchase or taking cost the Com- 
monwealth ; and how and to what extent would those rights and 
said cost be changed, if at all, by the ratification of the lease as 
proposed in the bill now before the General Court?" 

The foregoing questions may conveniently be considered 
together. 

There are two ways in which the Commonwealth may acquire 
the property of the Boston & Albany Railroad Company, to wit, 
by taking or by purchase. 

The Commonwealth has the undoubted right to take the prop- 
erty of any individual or corporation, including a railroad corpo- 
ration, for public uses. Under the authority of the Constitution 
the Commonwealth may at any time take the property of the 
Boston & Albany Railroad, if the public exigencies so require, 
paying therefor a reasonable compensation. This compensation 
is the fair net cash value of the property taken. Such a taking by 
right of eminent domain would not, in my opinion, include the 
cash assets or choses in action of the corporation, but only the 
property necessary to the carrying on of the railroad business. 
On the other hand, it would not impose upon the Commonwealth 
any obligation to assume or pay the indebtedness of the corpora- 
tion. This must be discharged by the corporation out of the 



138 OPINIONS OF THE ATTORNEY-GENERAL. 

damages recovered by it for the taking. The same rules would 
govern the compensation to be paid upon such taking as are appli- 
cable to any case of any taking by right of eminent domain. The 
cost of the property, its condition, its earning capacity, its pro- 
spective value, and perhaps other elements, would be proper mat- 
ters to be considered in arriving at its value. 

Pub. Sts., c. 112, § 8, expressly enacts that the Commonwealth 
may at any time '' take and possess the road, franchise and other 
property of a railroad corporation after giving to it one year's 
notice in writing; and shall pay therefor such compensation as 
may be awarded by three commissioners, to be appointed by the 
supreme judicial court, who shall be sworn to appraise the same 
justly and fairly, and shall estimate and determine all damages 
sustained by it by such taking; and a corporation aggrieved by 
the determination of said commissioners may have its damages 
assessed by a jury of the superior court in the county of Suffolk, 
in the same manner as is provided by law with respect to damages 
sustained by reason of the laying out of ways in the city of Bos- 
ton." This section, however, is merely declaratoiy of the rights 
secured to the Commonwealth under the Constitution, and cannot 
be said to enlarge or diminish those rights. 

Another method by which the Commonwealth may acquire the 
property of the Boston & Albany Railroad Company is by pur- 
chase under the authority of general or special statutes. This 
right of purchase differs inherently from the constitutional author- 
ity to take property by right of eminent domain, in that it is con- 
ferred by a contract contained in the statute, may be exercised 
regardless of public exigencies, and the price to be paid is fixed 
by the statute. 

The charter of the Boston & Worcester Railroad Company 
provides, in St. 1831, c. 72, § 14, as follows: "It shall be in the 
power of the government, at any time during the continuance of 
the charter hereby grar^ted, after the expiration of twenty years 
from the opening for use of the railroad herein provided to be 
made, to purchase of the said corporation the said railroad and all 
the franchise, property, rights and privileges of the said corpora- 



HOSEA M. KXO^AXTOX, ATTORN EY-GEXERAL. 139 

tion, on pajdng therefor the amount expended m making said rail- 
road, and the expenses of repaii's and all other expenses relating 
thereto, Tsith interest thereon at the rate of ten per cent, per 
annum, deducting all sums received by the corporation from tolls 
or any other source of profit, and interest at the rate of ten per 
cent, per annum thereon, that shall have been received by the 
stockholders.'' By St. 1832, c. 153. relating to the same corpora- 
tion, this right was modified in favor of the railroad corporation, 
so that the amoimt to be deducted from the interest to be paid on 
the cost of making the railroad should not m any event exceed ten 
per cent, per annum, the original section requiring the deduction 
of all amounts received even if the same amounted to more than 
ten per cent, per annum. 

The charter of the Western Raiboad Company (St. 1833, c. 116) 
contained a proAdsion relating to the purchase of the Western 
Railroad Company by the Commonwealth. It was similar m all 
respects to St. 1832, c. 153, above referred to, relatmg to the pur- 
chase of the Boston & Worcester Company. A subsequent statute 
superseded the pro\dsions for purchase contained in the original 
charter. By St. 1839, c. 70. the Commonwealth authorized an 
issue of scrip to aid in the construction of the Western Railroad 
Company. Section 5 of this statute provided as follows: "The 
Commonwealth may, at any time after this act shall take effect, 
purchase of the said corporation the said Western Railroad, and 
all the franchise, property, rights and privileges of said corpora- 
tion, by pajing them therefor such a sum as will reimburse them 
the amount of capital paid in. with a net profit thereon of seven 
per cent, per annum, from the times of the pa}^nent thereof by the 
stockholders, to the time of such purchase. And if. on said pur- 
chase, the Commonwealth shall have paid, or shall then pay or 
assume to pay the scrip issued by them by ^■i^tue of this act, or of 
the act passed the twenty-first day of February, in the year one 
thousand eight hundred and thirty-eight, or any part thereof, the 
amount which they shaU have so paid, or shall pay or assume, 
shall not be deemed to be a part of the cost of the road, or of the 
capital paid in, for which the Commonwealth shall pay a net profit 



140 OPIXIOXS OF THE ATTORXEY-GEXERAL. 

as above; excepting, however, such part of said scrip as the said 
corporation shall, at the time of such purchase, have actually 
paid." 

It is to be observed that the words relating to the price to be 
paid in the original charter were "the amount expended in mak- 
ing said railroad;" whereas in the act of 1839 the language was 
''the amount of capital paid in." Upon consideration, however, 
of all the provisions of § 5 above quoted, I am of opinion that the 
two expressions were intended by the Legislature to be identical, 
and to mean the amount of money actually expended by the 
stockholders in the construction of the railroad. Section 5, which 
designates the amount to be paid as ''capital paid in," further 
provides that, in case the railroad is purchased by the Common- 
wealth, and its scrip is outstanding, and is assumed by the Com- 
monwealth, the amount of scrip so outstanding "shall not be 
deemed to be a part of the cost of the road, or of the capital paid 
in, for which the Commonwealth shall pay a net profit as above; 
excepting, however, such part of said scrip as the said corpora- 
tion shall, at the time of such purchase, have actually paid." 
From these words it is obvious that by the use of the word 
"capital" in St. 1839, c. 70, the amount which the Common- 
wealth was to pay for the purchase of the road was intended to 
be the actual amount expended by the stockholders either from 
the proceeds of shares issued, or in repaying the loan of the 
Commonwealth made for that purpose. 

By St. 1867, c. 270, the Boston & Worcester Railroad Company 
and the Western Railroad Company were authorized to consoli- 
date into one corporation, the corporation so formed to be called 
the Boston & Albany Railroad Company. Section 4 of this stat- 
ute provides as follows: "If any such consolidation takes place 
as is provided in the first and third sections of this act, the corpo- 
ration so formed shall have, hold, possess and enjoy all the powers, 
privileges, rights, franchises, property, claims, demands and es- 
tates which, at the time of such union, may be held and enjoyed 
by either of the said existing corporations, and be subject to all 
the duties, restrictions, obligations, debts and liabilities to which, 
at the time of the union, either is subject in severalty." 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 141 

Section 17 of the same act provides: "The Commonwealth 
may at any time purchase of the Boston & Albany Railroad Com- 
pany its road and all its franchise, property, rights and privileges, 
by paying therefor such sum as will reimburse it the amount of 
capital paid into the several corporations composing it, and to the 
Boston & Albany Railroad Company, with a net profit thereon of 
ten per cent, a year, from the times of the payment thereof by the 
stockholders of said corporations respectively, to the time of the 
purchase." 

It might well be that, under the language of § 4, above quoted, 
the Commonwealth could claim the right to purchase so much of 
the consolidated company as had formerly been owned by the 
Western Railway Company, by paying it such a sum as would 
reimburse it the amount of capital paid in with a net profit 
thereon of seven per cent, interest, were it not for the special 
provision set forth in § 17 of the same act. The provisions of 
§ 17, however, amounted to a new contract between the con- 
solidated corporation and the Commonwealth, and superseded 
the contractual rights previously existing between the Common- 
wealth and the defunct Boston & Worcester and Western Rail- 
road companies. 

The language relating to the price to be paid, in the charter of 
the Boston & Worcester Railroad Company, was ''the amount 
expended in making said railroad and the expense of repairs, and 
all other expenses relating thereto." In the statute of 1832, mod- 
ifying the provisions of the original charter, and in the charter 
of the Western Railroad Company, the language again was ''the 
amount expended in making said railroad." The language in 
St. 1839, c. 70, above referred to, relating to the Western Rail- 
road Company, was "such a sum as will reimburse them" (the 
corporation) "the amount of capital paid in." Substantially the 
same phrase was used in St. 1867, c. 270, which provided for 
the payment of "such sum as will reimburse it the amount of 
capital paid in." 

In view of the fact, as before stated, that it was contemplated 
that the roads when built should be paid for out of the capital 
stock of the company, I have no reasonable doubt that all the 



142 OPINIONS OF THE ATTORNEY-GENERAL. 

phrases quoted have substantially the same meaning; and that 
it was the intention of the Legislature that the Commonwealth in 
the event of purchase should be required to pay to the corpora- 
tions all moneys expended in the construction of the railroad and 
its equipment. It would be unreasonable to hold that the Com- 
monwealth could acquire the property of a railroad company built 
in part by the proceeds of money borrowed therefor under au- 
thority of the Commonwealth, and pay only such portion of the 
cost as w^ould be represented by the capital stock, leaving the 
corporation to discharge its own indebtedness. The words 
''capital paid in," therefore, in St. 1867, c. 270, § 17, are not to 
be taken as equivalent to the amount of capital stock outstand- 
ing, but signify the whole amount expended by the corporation 
in the construction and equipment of its railroad. 

In addition to the special legislation upon the subject, the gen- 
eral laws provide a method by which the Commonwealth may 
purchase any railroad within its jurisdiction. Pub. Sts., c. 112, 
§ 7, is as follows: "The Commonwealth may at any time during 
the continuance of the charter of a railroad corporation, after 
the expiration of twenty years from the opening of its road for 
use, purchase of the corporation its road and all its franchise, 
property, rights and privileges, by paying therefor such sum as 
will reimburse to it the amount of capital paid in, with a net 
profit thereon of ten per cent, a year from the time of the pay- 
ment thereof by the stockholders to the time of the purchase." 

This section was first enacted in substantially the same form in 
Rev. Sts., c, 39, § 84, and was practically contemporaneous with 
the early special statutes upon the subject of purchase. I am of 
opinion, therefore, for the reasons already stated, that the ex- 
pression "capital paid in" in this section does not mean simply 
the amount of capital stock outstanding, but that it is to be con- 
strued like similar expressions in the special statutes, as meaning 
the net amount expended in the construction of the road and its 
equipment, whether raised by issue of shares or by loans. This 
being so, the section of the Public Statutes under consideration 
does not differ essentially from the provisions imposed in the con- 
solidation statute of 1867 relating to the Boston & Albany Rail- 



HOSE A M. KNOWLTOX, ATTORNEY-GENERAL. 143 

road ; and what I have said in reference to the construction of the 
special statute appHes in all respects to the general provision 
above quoted. 

The amount to be paid for the Boston & Albany Railroad in 
case of purchase may be stated, therefore, as follows: the Com- 
monwealth must pay such a sum as will reimburse the road the 
" cost of making the railroad," with a net profit thereon of ten per 
cent, a year. For the purpose of this computation, it is of no con- 
sequence whether this cost was paid from the proceeds of shares, 
or from bonds issued or loans effected by the corporations. By 
"cost" is meant the actual amount of money expended in the 
construction of the railroad and its equipment, regardless of debts 
outstanding and regardless as well of the amount or value of the 
capital stock outstanding at the time of such purchase. 

There are doubtless many difficult questions of detail to be met 
with in the application of these general rules. It would be im- 
possible to state, much less to meet and consider, such questions 
until they arise ; and I have not attempted in this opinion to do 
more than to set forth what in my opinion are the general rules of 
compensation to be paid in event of such purchase. 

Question 3, in the order of February 13, inquires: "At what 
probable or approximate price, under existing laws and charters, 
could the Boston & Albany Railroad be bought by the Common- 
wealth on March 1, 1900?" Question 1, in the order of February 
14, inquires, referring to the taking or purchase of the road by 
the Commonwealth, "How much would such taking or purchase 
cost the Commonwealth?" 

These are not questions of law. I have set forth above the 
basis upon which the cost in either method is to be ascer- 
tained; further than this I do not feel authorized or required 
to go. 

Question 1, in the order of February 13, above quoted, further 
inquires, relating to the taking by purchase or otherwise of the 
property of the Boston & Albany Railroad Company, "How and 
to what extent would those rights and said cost be changed, if at 
all, by the ratification of the lease as proposed in the bill now 
before the General Court?" 



144 OPINIONS OF THE ATTORNEY- GENERAL. 

The right of taking by eminent domain is based upon the Con- 
stitution, and cannot be annulled or hampered as to any Legis- 
lature by the acts of a previous Legislature. The right, therefore, 
of taking the property for public uses under the Constitution is 
not affected by the ratification of the proposed lease. 

I am further of the opinion that the ratification of the proposed 
lease does not deprive the Commonwealth of its rights to purchase 
reserved to it in the charters of the corporations and the special 
laws above set forth. The exercise of that right is no more incon- 
sistent with the rights of the lessee than it would be with those of 
the lessor if no lease had been made. The contracting parties are 
presumed to have had in mind the existence of the rights reserved 
to the Commonwealth, and to have executed their lease subject 
thereto. If the Commonwealth assents to the lease, it does not 
expressly, or in my opinion by implication, waive or surrender 
any rights reserved to it under existing laws. 

In case the Commonwealth should exercise its rights of pur- 
chase, I do not see how the question of cost would be affected by 
the existence of the lease, excepting in respect to the property 
proposed to be purchased by the lessee for the sum of $5,500,000, 
the questions arising upon which will be considered hereafter. 
In case the property should be taken by the Commonwealth in 
the exercise of the right of eminent domain during the continuance 
of the lease, the lessee would undoubtedly have the right to re- 
cover the damages, if any, accruing to it by the destruction of 
its leasehold interest. 

4 (order of February L3). "Could the Commonwealth, after 
the ratification of the proposed lease and the carrying out of the 
supplemental agreement, buy the Boston & Albany Railroad for 
as much less than before said ratification and carrying out as is 
the amount ($5,500,000 in bonds) to be paid by the New York 
Central & Hudson River Railroad Company for the property ex- 
cepted from the lease and described in schedule A annexed 
thereto?" 

The sum of $5,500,000 referred to in this question is the pro- 
ceeds of property belonging to the lessor sold by it to the lessee. 
Upon the consummation of the lease and sale the property will 



HOSEA M. KNOWLTON, ATTOKNEY- GENERAL. 145 

cease to be a part of the railroad property which would be included 
in the taking of such property by the Commonwealth in the exer- 
cise of its right of eminent domain, or in the purchase thereof 
under its statutory rights. The value of the property so sold 
should, in my opinion, be deducted from the damages in the case 
of taking, and from the price to be paid in the case of purchase. 
In the latter case, the price to be paid is the cost of making the 
railroad. Whatever sums have heretofore been expended for the 
property so sold should be credited upon this cost. This credit 
would not necessarily be the price for which the property is sold 
to the New York Central & Hudson River Railroad Company, but, 
as to the land at least, its actual cost when acquired by the rail- 
road company. If it had been acquired at a less cost than the 
said sum of $5,500,000, the railroad would be entitled to the bene- 
fit of the increase; correspondingly, if the cost of the land was 
greater, the loss would fall upon the railroad company. 

5 (order of February 13). "Is it in accord with public policy, 
as declared in legislation of the Commonwealth and the decisions 
of its Supreme Judicial Court, that the property (and especially 
the parcel of land) included in schedule A, annexed to the pro- 
posed lease, and described in the first clause of the lease as 'not 
needed for the railroad purposes' of the New York Central & 
Hudson River Railroad Company, should be sold to said com- 
pany, and in the manner prescribed in the supplemental agree- 
ment? " 

The proposed transaction referred to in this question is the sale 
of certain property of the lessor, a domestic railroad corporation, 
to the lessee, a foreign railroad corporation. 

Upon such investigation as I have been able to make, I have 
not discovered that any such transaction has heretofore taken 
place in this Commonwealth ; and I am not aware of any case in 
thp courts of the Commonwealth in which such a transaction has 
been discussed, nor of any legislation, enacted or proposed, in 
relation to such a transaction. There is, therefore, no declared 
policy of the Commonwealth upon the subject. 

The foregoing appears to answer the question proposed, so far 
as the same can be answered. I may properly add, however, that 



146 OPINIONS OF THE ATTORNEY-GENERAL. 

it is doubtful whether the question submitted is one of law, the 
duty of answering which is incumbent upon the Attorney-General. 
Questions of public policy are peculiarly within the province of the 
Legislature. The term ''public policy" may be defined to mean 
whatever is declared by the Legislature, within its authority 
under the Constitution, to be wise or expedient. That body is not 
and cannot be, bound or even guided by declarations of a preced- 
ing Legislature. This being so, the question submitted is, in 
essence, as a matter of public policy, should the Legislature 
authorize the transaction proposed? Upon such a question it is 
unnecessary to observe that the Attorney-General would not be 
authorized to express an opinion. 

6 (order of February 13). "Under the first clause of the pro- 
posed lease, and the supplemental agreement, could the Boston & 
Albany Railroad Company distribute annually among its stock- 
holders the interest ($192,500) received from the $5,500,000 
bonds?" 

7 (order of February 13). ''Under the first clause of the pro- 
posed lease, and the supplemental agreement, could the Boston & 
Albany Railroad Company sell the $5,500,000 bonds and dis- 
tribute the proceeds among its stockholders?" 

The bonds referred to in the foregoing questions are the pro- 
ceeds of certain property to be sold by the Boston & Albany 
Railroad Company to the New York Central Railroad Company, 
upon the execution of the proposed lease. It is declared in the 
first article of the lease that the property so sold is "not needed 
for the railroad purposes of the lessee." It is obvious that, if the 
lease be executed, the property will not be needed for the railroad 
purposes of the lessor, and will become assets in the hands of the 
Boston & Albany Railroad Company, to be disposed of as it sees 
fit, unless restrained by some provision of law. 

The only statute bearing, even remotely, upon the subject, is 
St. 1894, c. 350, which is substantially a re-enactment of Pub. 
Sts., c. 112, § 61. The first section of the statute referred to pro- 
vides as follows: "No . . . steam railroad . . , company 
established under the laws of this Connnonwealth shall declare 
any stock or scrip dividend, or divide the proceeds of the sale of 



HOSEA M. IvNOWLTOX, ATTORNEY-GENERAL. 147 

stock or scrip among its stockholders; nor shall any such com- 
pany create any additional new stock, or issue certificates thereof 
to any person, unless the par value of the shares so issued is first 
paid in cash to its treasurer." 

In 1882 the Commonwealth, in accordance with the provisions 
of St. 1882, c. 121, assigned to the Boston & Albany Railroad 
Company about 24,000 shares of the capital stock of the corpo- 
ration, receiving in exchange therefor five per cent, bonds of the 
corporation. The corporation held the stock until September 27, 
1883, on which day it voted to distribute about 17,000 shares of 
the stock so purchased from the State among its stockholders. A 
bill in equity was brought by the Attorney-General to restrain 
this issue. He relied principally upon the provisions of the stat- 
utes above referred to. It was held by the court, however, that, 
although literally the division of the stock so purchased was a 
stock dividend, yet, in view of the fact that under the terms of 
the statute authorizing the sale the shares so purchased belonged 
to the corporation, with the right to hold and dispose of the same 
as its absolute property, the provisions of the Public Statutes, 
which, as I have already stated, were substantially re-enacted in 
the statute of 1894, were not effectual to restrain the company 
from dividing property, which it held free of all trusts, among its 
stockholders. Covi. v. B. & A. R.R. Co., 142 Mass. 146. 

I am of the opinion that the doctrine of this case, as well as the 
general principles of law applicable to corporations and corporate 
property, are conclusive of the questions submitted, and that 
the bonds acquired by the Boston & Albany Railroad under the 
terms of the lease and agreement, when ratified by the Common- 
wealth, will become its absolute property, and that the interest 
of the bonds may be divided among its stockholders; and that 
it may also sell the bonds and divide the proceeds among the 
stockholders. 

8 (order of February 13). "Under the proposed lease, and 
especially the third clause thereof, could the New York Central & 
Hudson River Railroad Company assign the lease, or underlet the 
main line of the Boston & Albany Railroad or the main line of 
any of the branches of the latter, by obtaining the consent in 



148 OPINIONS OF THE ATTORNEY-GENERAL. 

writing of the latter and without obtaining the consent of the 
Commonwealth? ' ' 

9 (order of February 13). ''Under the proposed lease, and 
especially the tenth clause thereof, could the New York Central 
& Hudson River Railroad Company and the Boston & Albany 
Railroad Company modify, change, amend, annul or cancel the 
lease by mutual agreement and without obtaining the consent of 
the Commonwealth?" 

The third clause of the proposed lease is as follows: "The 
lessee shall not assign its lease nor underlet either the main line 
of the lessor's railroad or the main line of any of its branches 
without the consent in writing of the lessor." 

The tenth clause is as follows: "Nothing herein contained 
shall prevent the lessor and lessee from modifying, changing, 
amending, annulling or cancelling this lease by mutual agree- 
ment." 

I am of opinion that the consent of the Commonwealth to the 
proposed lease, though containing the terms above quoted, does 
not operate as a repeal of the laws of the Commonwealth in rela- 
tion to the leasing of railroad corporations. The Commonwealth 
is not a party to the lease, and does not become so in the sense 
that it is estopped from executing its own laws, excepting, of 
course, that it suspends its general prohibitions so far as to con- 
sent that the Boston & Albany Railroad may be leased to the 
lessee named. The stipulations in the lease itself, relating to the 
rights of the parties as to assigning, underletting, annulling or 
altering the lease, are binding upon the parties thereto. But they 
are deemed to be entered into in view of the laws of the Common- 
wealth governing these subjects, none of which is waived in favor 
of the parties by the consent of the Commonwealth to the execu- 
tion of the lease. The rights of the parties, therefore, upon this 
question, depend, so far as the Commonwealth is concerned, not 
upon the terms of the lease, but upon the laws of Massachusetts. 
It is scarcely necessary to say that the State of New York has no 
power to enact a law authorizing the leasing of a railroad in 
Massachusetts in violation of the laws of the Commonwealth. 

It is well settled in this Commonwealth that railroads within its 



i 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 149 

jurisdiction may not be leased excepting by its consent. Railroad 
corporations cannot divest themselves of the obligations to the 
public which they assumed when they accepted their charters by 
turning over such obligations so imposed to be performed by 
others, whether by lease or otherwise. The only exception is the 
express statute provision (Pub. Sts., c. 112, § 220) authorizing a 
railroad connecting with another railroad to lease its road to the 
connecting corporation. With this exception, any contract, such 
as a lease, by which a railroad corporation undertakes to divest 
itself of the duties imposed upon it by its charter is ultra vires, 
and, consequently, void. 

These considerations govern the questions submitted. The 
underletting or sub-leasing of a railroad by a lessee is, in effect, a 
transfer of the obligations of the lessee to another party. If a 
lease is authorized by the sovereign, the lessee succeeds to the 
duties of the original company, and has no more right to divest 
itself of those duties than had the original company itself. It 
follows that the lessee in the proposed lease has no authority to 
assign its lease or to underlet the lines of the Boston & Albany 
Railroad or any of the branches acquired by the lease. 

For the same reasons, the lease cannot be modified, amended or 
changed by the contracting parties without the consent of the 
Commonwealth. Such changes, modifications or amendments 
would constitute a new lease, and the principles of law governing 
leases would be in force as to such new lease. 

It is the inherent right of parties to a contract, in the absence 
of any statutory provisions to the contrary, and whether so 
formally expressed in the contract or not, to cancel by mutual 
agreement any contract into which they may have entered. 
There is nothing in the laws of the Commonwealth which forbids 
the annulling by the parties of a railroad lease. I am of opinion, 
therefore, that the lease proposed may at any time be annulled by 
the joint action of the parties thereto. 

Although it is not within the scope of the question submitted, I 
may further say that the question of what remedy the Common- 
wealth may have, should the lessee assign its lease, especially to 
another foreign corporation, is one of more difficulty. As I have 



150 OPINIONS OF THE ATTORNEY-GENERAL. 

before said, such an assignment of the lease would be ultra vires 
and void. I have referred, in my answer to a succeeding ques- 
tion, to the statutes conferring jurisdiction upon our courts to 
entertain a suit by the Commonwealth against the lessee for viola- 
tion of its duties to the Commonwealth. The assignee of the 
lessee, if a foreign corporation, would be subject to the provisions 
of the same statutes. The federal courts in the jurisdictions of 
the foreign corporations would also be open to the Commonwealth. 
Whether these provisions are sufficient, and whether it is wise to 
make further provisions guarding the rights of the Common- 
wealth in the case of such an attempted assignment or sub-letting, 
is a matter properly for the consideration of the Legislature 
rather than of the Attorney-General. 

2 (order of February 14). "If the property and franchises of 
the Boston & Albany Railroad Company are leased to the New 
York Central & Hudson River Railroad Company, with the assent 
of the Commonwealth, as proposed in said bill, and the law in 
regard to returns to the Board of Railroad Commissioners remains 
as it is, will either of said corporations thereafter be compelled to 
make such returns showing the receipts, expenses and profits 
from the operation of the Boston & Albany Railroad?" 

There are two statutes relating to returns by railroad corpora- 
tions, viz., Pub, Sts., c. 112, §§ 81-83, and St. 1893, c. 131. It 
does not appear that the latter statute is intended to be a repeal 
of the provisions in the Public Statutes. 

Pub. Sts., c. 112, § 81, provides, among other things, that 
every railroad corporation shall annually, on or before the first 
Wednesday of November, transmit to the Board of Railroad 
Commissioners a report of its doings for the year ending on the 
thirtieth day of September preceding, to be called the annual 
return. Such report shall include a detailed statement of all 
particulars respecting the railroad, its business, receipts and 
expenditures during the year, in such form as shall be, from time 
to time, prescribed by the Board, under § 26 of the same chapter. 
' When a domestic corporation leases the railroad of another 
domestic corporation, the returns prescribed by § 83 shall be 
made by the lessee, and during the continuance of the lease the 



HOSEA M. KXOWLTON, ATTORNEY-GENERAL. 151 

lessor is not required to make such returns. The section further 
provides, however, that, ''if a railroad in this Commonwealth is 
leased to a corporation or party in another State, the lessors in 
this Commonwealth shall make the annual return." 

The clause quoted applies to the parties to the proposed lease. 
I do not think, as has been suggested, that, in case the lease is 
effected, the Boston & Albany Railroad Company will discharge 
its duty by making returns merely of the rent received under the 
leiase and the payments of dividends, bond interest and organiza- 
tion expenses. Such returns are sufficient in the case of corpora- 
tions whose roads are leased to other domestic corporations, 
because in such cases all the detailed returns of the business of the 
road are to be made by the lessee. This lease being to a foreign 
corporation the statute imposes upon the lessor the whole burden 
of the annual returns, and I am of opinion that all the obligations 
now incumbent upon the Boston & Albany Railroad under the 
Public Statutes will continue in full force in the event of the exe- 
cution of the proposed lease. Whether the returns provided for 
by the sections in question are sufficient to show the "receipts, 
expenses and profits from the operation of the Boston & Albany 
Railroad," I am not informed. If they are so now, they will none 
the less be so after ratification of the proposed lease, for they must 
then still be in the same form and must contain the same details. 

How the Boston & Albany Railroad Company may supply itself 
with information to make the returns required is not pertinent to 
the present inquiry. It appears, however, to have attempted to 
guard itself by art. 6 of the lease, which provides that the lessee 
shall "furnish the lessor with such statements and accounts in 
its possession and control as are requisite to enable the lessor to 
make all returns by law required of it ; and shall permit and afford 
suitable facilities for the officers of the lessor, by themselves or by 
agents appointed by them, to examine the demised property once 
each year, so far as may be necessary to ascertain the condition 
thereof." The lease further provides, in art. 9, that the contract 
may be annulled by the lessor upon neglect or failure of the lessee 
to perform either of the covenants of the lease. This would seem 
to give to the Boston & Albany Railroad Company full power to 



152 OPINIONS OF THE ATTORNEY-GENERAL. 

obtain all facts necessary to make the returns required of railroad 
companies by the commissioners. 

St. 1893, c. 131, provides as follows: "Every railroad corpora- 
tion operating a railroad within this Commonwealth shall, within 
fifty days after the expiration of each quarter of the calendar year, 
transmit to the board of railroad commissioners a quarterly state- 
ment of. its business and financial condition, made up in such form 
and with such detail as said board may require; and such state- 
ment shall at reasonable times be open to public inspection. A 
railroad corporation neglecting to make and transmit any such 
quarterly statement within the time above prescribed shall forfeit 
fifty dollars for each day's neglect." 

If the lease goes into effect, the New York Central & Hudson 
River Railroad Company will become the railroad corporation 
operating the railroad within the meaning of this act. The duty 
of complying with the provisions of this statute, consequently, 
will fall upon the lessee and not upon the lessor. 

A further question arises whether this statute can be enforced 
against the lessee, a foreign corporation. The penalty for neglect 
to comply with the provisions of the statute is a forfeiture of fifty 
dollars per day. By Pub. Sts., c. 217, § 2, a forfeiture accruing 
to the Commonwealth may be recovered in an action of tort. 
Such action, however, cannot be maintained in the courts of the 
Commonwealth unless jurisdiction be obtained against the foreign 
corporation, by attachment of property or by the consent of the 
corporation. 

St. 1884, c. 330, § 1, provides that every foreign corporation 
having a usual place of business in this Commonwealth shall 
appoint, in writing, the Commissioner of Corporations to be its 
attorney for the service of process, and shall agree that any 
process served on such attorney shall be of the same legal force 
and validity as if served upon the company. Section 3 of the 
same chapter provides that every officer of the corporation which 
fails to comply with the requirements of this act, and every agent 
of such corporation who transacts lousiness as such in this Com- 
monwealth, shall, for such failure, be liable to a fine not exceed- 
ing five hundred dollars. Under this statute it will be the duty of 



HOSEA M. KXOWLTOX, ATTORNEY-GENERAL. 153 

the lessee corporation to appoint an attorney and enter into such 
agreements as will give the courts of this State jurisdiction to 
entertain suits against it, including, of course, actions of tort for 
failure to make returns. If it fails to appoint such attorney, every 
agent of the corporation within this State is liable to the fine 
prescril^ed. 

Whether these provisions of law are sufficient to enable the 
Commonwealth and its officers to secure the returns required, and 
whether additional restrictions should be imposed by the Legis- 
lature looking to an increase of the power of the Commonwealth 
to enforce the provisions of its laws as against the lessee, are ques- 
tions peculiarly for the consideration of the Legislature, rather 
than of the Attorney-General. 

It should be further said that by the sixth article of the pro- 
posed lease the lessee expressly agrees that it will "make all re- 
turns by law required of it." This provision, however, enures to 
the benefit of and may be enforced by the lessor, and may not be 
availed of by the Commonwealth. 

3 (order of February 14). "Prepare and furnish to the House 
of Representatives a collection of all the special legislation affect- 
ing said railroad, or the corporations operating the same, from the 
time of and including the charters thereof." 

While entertaining the highest respect for the authority of the 
Honorable House of Representatives, I am of opinion that the 
foregoing order is not a question of law within the meaning of Pub. 
Sts., c. 17, § 7, making it the duty of the Attorney-General to 
"give his opinion upon cpestions of law submitted to him by 
either branch of the General Court, or by the Governor and Coun- 
cil," and that it is not within the jurisdiction of the House of Rep- 
resentatives to require of the Attorney-General the performance of 
the duty imposed by this order. 

I beg to inform the Honorable House of Representatives, how- 
ever, that for my own use in answering the questions submitted I 
have caused to be prepared elaborate and detailed schedules, not 
only of the "special legislation affecting the Boston & Albany 
Railroad, and the corporations operating the same from the time 
of and including the charters thereof," but of many of the general 



154 OPINIONS OF THE ATTORNEY-GENERAL. 

railroad laws affecting the questions submitted. These schedules 
are at the service of the House of Representatives, or of such 
committees of the Legislature as may desire to use them, and for 
that purpose are herewith transmitted. 



Medfield Insane Asylum — Appropriation. 

The appropriation of $25,000, under St. 1897, c. 205, for the use of the trustees of 
the Medfield Insane Asylum in completing the asylum, is not governed by 
the statutes relating to annual appropriations, providing that if not expended 
within two years such appropriation shall lapse. 

A reservation of $2,000, made by the trustees and not by the Legislature, becomes, 
when the purposes for which it was reserved are accomplished, available 
for use in accordance with the original purposes of the appropriation. 

of^'hlMedS I have your letter of the 29th, stating that after settling all 
Asylum. possible claims for land damages, $2,000 of the appropriation 

April 4. granted your commission under St. 1897, c. 205, which had been 

reserved to pay such damages, is now available; and requiring 
my opinion upon the question whether it can be used for extend- 
ing the water system of the asylum and supplying the stock barn. 
The statute in question appropriated the sum of $25,000 for the 
use of the trustees in completing the asylum. There is nothing in 
the act which requires you to set aside any balance for land dam- 
ages, although, of course, it was your duty to see that they were 
paid from the appropriation. The reservation of $2,000 therefore, 
being voluntary and not made by the Legislature, becomes, when 
the purposes for which you have reserved it are accomplished, 
available for use in accordance with the original purposes of the 
appropriation, and may be so expended. 

This appropriation is not governed by the statutes relating to 
annual appropriations, providing that they shall be expended 
within two years, and if not so expended shall lapse. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 155 



Boston, Cape Cod & New York Canal Company — Issue 
OF Stock not representing -Cost of Construction — 
Watered Stock. 

A bill to amend the charter of the Boston, Cape Cod & New York Canal Company, 
instead of providing for the authorization of stock and bonds from time to 
time, as the needs of construction require, and for the expenditure of the pro- 
ceeds only in such construction, requires the joint board provided for in the 
charter to ascertain in advance the entire cost of the canal, and to authorize 
the issuance of the whole amount of stock and bonds needed to cover the cost 
so ascertained. If the actual cost of construction should be less than such 
estimate by the joint board, the balance of stock not required for purposes 
of construction would become the property of the corporation, and, in so far 
as it did not stand for nor represent capital actually invested, would be 
"watered stock." 

I have the honor to acknowledge the receipt of a copy of the to the senate. 

^ ' ^-'^ 1900 

order adopted by the Honorable Senate April 5, requiring the Aprne. 
opinion of the Attorney-General upon the following question, to 
wit: "Would the enactment of House Bill No. 976, being an act 
relative to the Boston, Cape Cod & New York Canal Company, as 
amended by the House and by the Senate on April 4, 1900, afford 
to the Boston, Cape Cod & New York Canal Company under any 
circumstances the opportunity in the issue of their securities to 
practice what is commonly known as stock watering?" 

Inasmuch as the original charter of the company (St. 1899, c. 
448) provides that the stock and bonds authorized therein shall 
be issued under the provisions of St. 1894, c. 462 (being what is 
commonly called the anti-stock-watering act relating to steam and 
street railways), I assume that the purpose of the question sub- 
mitted is practically to require the opinion of the Attorney- 
General on the question whether the amendment excepting the 
company from certain of the provisions of that act so far modifies 
the act as to make it possible for the company to issue stock not 
representing capital actually invested. 

I understand stock watering to be the issuance of stock not 
based upon capital actually invested. The anti-stock-watering 
act, to which I refer (St. 1894, c. 462), is intended to prevent the 
possibility of such over-issuance. It provides, in substance, that 



156 OPmiONS OF THE ATTORNEY-GENERAL . 

railroad and street railway companies shall "hereafter issue only 
such amounts of stock and bonds as may from time to time, upon 
investigation by the board of railroad commissioners, be deemed 
and be voted by them to be reasonably requisite for the purposes 
for which such issue of stock or bonds has been authorized." The 
act further provides that the "vote of the board approving such 
issue shall specify the respective amounts of stock and l^onds 
authorized to be issued for the respective purposes to which the 
proceeds thereof are to be applied." And to make it certain that 
such stock and bonds shaU represent only expenditures actually 
incurred, the act further provides that "no company included in 
the terms of this act shall apply the proceeds of such stock or 
bonds to any purpose not specified in such certificate." 

The present bill amends the original charter by modifying cer- 
tain of the provisions of the anti-stock-watering act in their 
apphcation to this company. Instead of providing for the au- 
thorization of stock and bonds from time to time, and only as 
needs of construction require, and providing that the proceeds 
shall be expended only in such construction, it requires the joint 
board to ascertain in advance the entire cost of the canal and its 
equipment, and to authorize, in the first instance, the issuance 
of the whole amount of stock and bonds which will be needed to 
cover the cost so ascertained. It contains no provision for can- 
cellation of any stock which shall prove not to be required, in case 
it shall turn out that the estimate of the joint board was in excess 
of the actual cost. 

If the joint board is able to ascertain definitely the cost of con- 
struction and equipment of the canal, there appears to be no more 
liability to stock watering in the present bill, as amended, than in 
the original charter. If, however, the actual cost of construction 
shall prove to be less than the estimate so fixed in advance by the 
joint board, the balance of stock in the hands of the State Treas- 
urer not required for the purposes of construction will become 
the property of the corporation, and, in so far as it does not stand 
for nor represent the cost of construction, will be, as I understand 
the term, watered stock. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 157 

In this aspect of the case, the question, therefore, is one of fact 
rather than of law. In case the board shall be able to estimate 
correctly the cost of the canal, and shall authorize the issuance of 
only so much stock and so many bonds as are equivalent to such 
cost, there will apparently be no opportunity for stock watering. 
But, if, on the other hand, the board overestimates the cost, there 
being no provision for cancellation of stock and bonds which 
prove to be not actually needed for the purpose of construction, 
the issuance of the whole stock having been authorized in ad- 
vance, the result will be that the surplus stock and bonds to which 
the company may so become entitled will be stock not represent- 
ing capital actually invested, and will come within the definition 
of what I understand to be watered stock. 



Insurance — Reinsurance — Form of Contract. 

A contract of reinsurance is not a contract of insurance "on property" within the 
meaning of St. 1894, c. 522, § 60, and such contracts entered into by insur- 
ance companies need not be in the standard form required by tlaat section. 

Your letter of April 3 requires the opinion of the Attorney- to the insur. 

. 1 '11 1- • ance Com- 

General upon the question whether contracts ot reinsurance en- missioner. 

. . . 1900 

tered into by insurance companies must be in the standard form ^prii e . 
provided by St. 1894, c. 522, § 60. 

The section in question provides that insurance companies mak- 
ing contracts of insurance "on property" must issue them in the 
standard form. A contract of reinsurance, however, is not a con- 
tract of insurance on property, within the meaning of that sec- 
tion. The original policy is such an insurance upon property, but 
reinsurance is merely a contract between two companies that the 
reinsuring company will assume the whole or a portion of the risk 
taken by the original company. There is no statute, therefore, 
requiring the contract of reinsurance to be in the standard form, 
or in any other particular form. 

The lav/ requiring contracts of insurance to be made in the 
standard form is for the benefit of insured who might otherwise 



158 OPINIONS OF THE ATTORNEY-GENERAL. 

not easily understand all the provisions contained in the policy 
which they receive. Contracts of reinsurance, however, are en- 
tered into between insurance companies who are able to protect 
themselves, and may therefore make such contracts as they see fit. 



Pauper — Married Woman — Domicile — Settlement. 

In Pub. Sts., c. 83, § 1, cl. 7, which pro\ddes that only such married women as have 
not a settlement "derived by marriage" may gain a settlement by residence, 
the words "derived by marriage" signify an existing marriage. 

Therefore, a married woman settled under a previous marriage, which has been 
terminated by the death of the husband, is not prevented from acquiring a 
new settlement by residence. Where a wife, deserted by her husband, remains 
for a period of more than twenty years where their joint domicile had been, 
she will not be debarred from gaining a settlement by the fact that he has 
had no settled place of residence since the time of such desertion. 

To toej^iiper- Your letter of January 11 requires the opinion of the Attorney- 
f.*'^^^ Adult General as to the settlement of a female, upon the facts stated in 
Ajriie. a history annexed to the letter, which is substantially as fol- 

lows : — 

The female in question was born in Northampton, in 1847. 
She was married in 1868 to a man who had a military settlement 
in Shutesbury. This husband died in 1869. In 1871 she was 
married a second time, and removed with her husband in 1873 to 
Worcester, where she has since resided. She had aid in 1886 for 
her child by her first husband. This aid was furnished by Worces- 
ter, and for it Worcester was reimbursed by Shutesbury. 

Her second husband abandoned his family in Worcester in 1875. 
"He has not lived with his wife since, and has done nothing for 
her support. He has resided most of the time since leaving her in. 
New York and Washington, D. C. He has made occasional visits 
to Massachusetts, but never to remain over two or three weeks. 
His wife saw him in Amherst, on the street, in 1896. He has 
gained no settlement in his own right." 

The woman in question acquired a settlement in Shutesbury 
through the military settlement of her first husband in that place. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 159 

After his death, in 1869, she came within the provisions of Pub. 
Sts., c. 83, § 1, els. 6 and 7, which are as follows: "Sixth, Any 
woman of the age of twenty-one years, who resides in any place 
within this state for five years together, shall thereby gain a set- 
tlement in such place." "Seventh, The provisions of the preceding 
clause shall apply to married women who have not a settlement 
derived by marriage under the provisions of the first clause, and to 
widows; and a settlement thereunder shall be deemed to have 
been gained by an unsettled woman upon the completion of the 
term of residence therein mentioned, although the whole or a 
part of such term has already elapsed." If she had remained a 
widow, she would have acquired a settlement in Worcester by 
her residence in that city for five years after 1873. Her second 
marriage being to a man who had no settlement, and from 
whom, consequently, she could derive no settlement, her right 
to acquire a settlement by residence was not defeated by such 
marriage. It is true the language of clause 7 makes the provi- 
sions of clause 6 apply to "married women who have not a settle- 
ment derived by marriage." These words, however, obviously 
are to be taken to signify a settlement derived by an existing 
marriage, and do not prevent married women settled under a 
previous marriage, which has been terminated by the death of 
the husband, from acquiring a new settlement by residence. 

Nor was she debarred from gaining a new settlement in Worces- 
ter by reason of the fact that her husband has had no settled 
place of residence since 1875. He was domiciled in Worcester 
until that time, and after his desertion of her, she remaining 
where their joint domicile had been, I am of opinion that her dom- 
icile cannot be taken to have shifted with his throughout his wan- 
derings. The former rule, that a wife's domicile must, in all 
cases, be identical with her husband's, is now subject to many 
exceptions. 2 Op. Atty.-Gen., 15. See also Burtis v. Burtis, 161 
Mass. 508. Notwithstanding his changes of residence, I am of 
opinion that she resided in Worcester within the meaning of that 
word as used in the statutes relating to settlement. 



160 OPINIONS OF THE ATTORNEY-GENERAL. 

It is scarcely necessary to say that the aid furnished to the 
child of her first marriage in 1886 does not affect the question. 
The child's settlement followed that of his father, which was in 
Shutesbury. 



Residence — Enlistment. 

A person is, in general, a resident of Massachusetts who lives in the Commonwealth 
with the intention of having his home there. A person so residing in Massa- 
chusetts, who was mustered into the regular army, whether naturalized or 
not, comes within the pro\'isions of St. 1898, c. 561, § 1. 



To the 
Treasurer 



Replying to your letter of April 4, I have to say that, in my 
Genemf """■ Opinion, the word ''residents," as used in St. 1898, c. 561, § 1, 
Apriii2. providing that there shall be paid "to residents of Massachusetts 

mustered into the regular army or na\7" or into the volunteer 
brigade of engineers of the United States during the present war, 
the sum of seven dollars per month," is not limited to persons 
who are citizens of Massachusetts. The act is remedial, and is to 
be liberally construed ; and I am clearly of the opinion that the 
inducements to enlistment held out by the act were intended to 
be for the benefit of all persons living in the Commonwealth, 
whether naturalized or not. 

What constitutes residence is largely a question of fact. I can 
only say, in general, that a person is a resident of Massachusetts 
who lives in the Commonwealth with the intention of having his 
home here. A person who was living in Massachusetts, making it 
his home, and while so residing was mustered into the regular 
army, comes wdthin the provisions of the act. 

Although this general definition of residence may serve your 
purpose, it may, perhaps, be better, where the conclusions to be 
drawn from the facts seem to you to be doubtful, to refer the 
case to this office for more specific consideration. 



HOSEA M. KXOWLTON, ATTORNEY-GENERAL. 161 

City of Holyoke — Holyoke Water Power Company — 
Contract — Annual Payment by City fixed by Valua- 
tion of Property — Assessors. 

The approval by the Legislature of a contract between the city of Holyoke and the 
Holyoke Water Power Company, providing that the company shall have 
certain rights "subject to such provisions of the general laws of Massachusetts 
now in force" as relate to such rights, will not serve to exempt the company 
from the operation of such laws thereafter enacted as affect any rights or 
duties of the company as they exist under the laws now in force. 

A clause in such contract which provides that the price fixed in a lease for the use 
of lighting apparatus shall be increased or decreased as the values put upon 
the property by the assessors increase or diminish, is not in conflict with the 
general laws of the Commonwealth relating to taxation, since it does not 
bind the assessors, who are not agents of the city, but a board of public 
officials acting under the authority of the statutes of the Commonwealth. 

I have the honor to acknowledge the receipt of a copy of a ioint Tothe senate 

^ ^ r.; J r^J^^X House of 

order of the Legislature, adopted April 10, requiring the opinion j^l^'J^^*^"^"- 
of the Attorney-General upon certain questions touching the con- A^rn 13. 
struction of a contract which has been executed between the city 
of Holyoke and the Holyoke Water Power Company, in which 
contract it is stipulated that it shall be in force only when ap- 
proved by the Legislature. 

The contract provides that "the party of the second part shall 
have the right to maintain and use an overhead system of lighting, 
and the right to lay down and maintain its pipes in said highways 
for the distribution of gas, subject to such provisions of the gen- 
eral laws of Massachusetts now in force (and of the present re- 
vised city charter of said city of Holyoke) as relate to the erection 
and maintenance of said overhead system and the laying and 
maintaining of said pipes." The joint order requires the opinion 
of the Attorney-General upon the question whether "the effect 
of this clause would not be to exempt the company from the 
operation of all general laws relating to gas pipes and overhead 
wires which may be enacted by future legislation during the 
period covered by the contract." 

I presume it may be contended that the Legislature, by approv- 
ing the contract, so far becomes a party thereto that the use of the 
expression in the contract "general laws of Massachusetts now in 



162 OriNIONS OF THE ATTORNEY-GENERAL. 

force" binds the Commonwealth as a contracting party not to im- 
pair the obhgation of its contract so created by making any 
changes in existing general laws which shall affect any rights or 
duties of the company as they exist under the laws now in force. 

I am of opinion, however, that this contention is not well 
founded. The approval of the contract in question does not 
amount to a contract between the Commonwealth and the 
Holyoke Water Power Company that it will not amend or repeal 
existing laws relating to gas pipes and overhead wires. The con- 
tract itself is between the city and the company, and the effect of 
the clause in question is to estop the city from objecting to the 
maintenance by the company of gas pipes and overhead systems 
of lighting such as are authorized by existing laws. As a contract, 
it binds only the parties thereto. The Commonwealth, by an act 
approving the contract, authorizes the parties so to bind them- 
selves, but does not bind or estop itself. 

The Legislature has, under the Constitution, the right to 
"make, ordain and establish, all manner of wholesome and reason- 
able orders, laws, statutes, and ordinances, directions and instruc- 
tions, either with penalties or without; so as the same be not repug- 
nant or contrary to this constitution, as they shall judge to be for 
the good and welfare of this Commonwealth." Const, of Massa- 
chusetts, c. 1, § 1, art. 4. The power granted by this clause is 
frequently referred to as the police power of the Legislature. The 
clause itself has been considered in many cases before the Supreme 
Judicial Court, and has almost uniformly been construed liberally 
as a grant of power to the Legislature. I am of opinion that the 
approval of the existing contract cannot be construed as a re- 
straint upon the power of the Legislature granted to it by the 
article of the Constitution quoted, and that it may, at any time, 
notwithstanding this contract, enact such general laws relating 
to gas pipes and overhead wires as it deems to be for the welfare 
of the Commonwealth and its citizens. 

The second question contained in the order is whether "the 
provisions in the said contract which relate to taxation and tax 
valuation are not in conflict with the laws of the Commonwealth 
relating to these matters." 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 163 

The clause referred to in this question is as follows: "The fore- 
going prices are based upon the valuations for taxation on the 
tax list of the said city of Holyoke, for the year 1898, of the 
electric light and gas plants belonging to said Holyoke Water 
Power Company within the city of Holyoke, including the valu- 
ation of the pipes and structures within the limits of the highways. 
If any of said valuations are hereafter increased or decreased, 
with the result that the taxes to be paid by said Holyoke Water 
Power Company upon said properties are increased or decreased, 
then the gross amount to be paid annually thereafter by the city 
for said lighting shall be increased or decreased by the amount of 
said increase or decrease of said taxes: provided, however, that 
this clause shall not apply to any general increase in valuation for 
the purpose of taxation of property throughout the city in which 
increase the said Holyoke Water Power Company shall share pro 
rata, nor to any extensions and improvements in said gas and 
electric light plants since May 1, A.D. 1898, nor to any new build- 
ing on said plants which shall be erected in lieu of or for the pur- 
pose of taking the place of present buildings connected with said 
plants, provided such new buildings exceed in value the present 
buildings, in which case this clause shall not apply to such excess 
of value." 

This clause is not in conflict with the general laws of the Com- 
monwealth relating to taxation. It does not modify nor affect 
them. It merely provides that the prices fixed in the lease for the 
use of lighting apparatus shall be increased or decreased as the 
values put upon the property by the assessors of Holyoke are in- 
creased or diminished. It does not and cannot bind the assessors 
in any way. They are a board of public officers, acting under the 
authority of the statutes of the Commonwealth. They are inde- 
pendent of and are not the agents of the city of Holyoke. The 
municipality, which is the only party to the contract in question, 
has nothing to do with the matter of taxation. The contract does 
not attempt to fix the valuation, but only the price as dependent 
on such valuation. 

I therefore answer both questions submitted by the order in the 
negative. 



1(34 OPINIONS OF THE ATTORNEY-GENERAL. 

Charitable Corporation — Boston Lying-in Hospital — 
Patient having no Settlement within the Common- 
wealth. 

The Boston Lying-in Hospital is not a city hospital within the meaning of St. 189S. 

c. 391. 
The State Board of Charity may approve a bill for a "reasonable expense" for 

care of a patient having no settlement within the Commonwealth. 

To the State Youi' letter of April 9 requires the opinion of the Attorney- 

^S' ■ General upon the question whether the State Board of Charity is 

Aprins. authorized to approve bills rendered by the city of Boston for 

the confinement of women having no settlement in this State, 
who are sent by the city of Boston to the Boston Lying-in Hos- 
pital, to be treated there during their confinement. Your letter 
further states that the precise inquiry is whether the Board is 
limited under the statutes to an allowance of $5 per week in such 
cases, the hospital in question being a charitable corporation, re- 
ceiving no support from the city of Boston except as said city pays 
for individual cases sent to it. The charges of the hospital are in 
excess of $5 per week. 

St. 1898, c. 391, which governs the case, provides that: "The 
reasonable expense incurred by a city or town under the pro- 
visions of the preceding section . . . shall be reimbursed by the 
Commonwealth . . . and not more than five dollars a week 
shall be allowed for the support of a person in a city or town hos- 
pital." The Boston Lying-in Hospital is not a city hospital, 
within the meaning of that expression as used in the statute. The 
hospital was incorporated by St. 1832, c. 21. The charter gave to 
it the powers usually granted to such corporations, but made it in 
no way subject to or dependent upon the city of Boston. 

I am of opinion, therefore, that the Board of Charity may 
approve a bill for a "reasonable expense," as provided in the 
statute, and that the Commonwealth's liability is not limited to $5 
per week. 



HOSEA M. KNOWLTOX, ATTORNEY-GENERAL. 165 



Registered Pharmacist — Revocation of Certificate — 
New Examination — Mistake of Fact. 

The Board of Registration in Pharmacy may, in its discretion, grant a new exam- 
ination to a person whose certificate of registration as a pharmacist has been 
duly revoked by the Board. 

Where the Board has regularly revoked a license, it has no authority to reconsider 
such decree and to grant a new license without a new examination. 

The Board may, however, reconsider a revocation decreed through mistake of fact. 

Your letter of April 4 requires the opinion of the Attorney- xo the Board 

^ , , , • i • , of Registration 

General upon two questions, to wit : — in Pharmacy. 

1. Can the Board of Registration in Pharmacy lawfully grant April 2 1. 
an examination, as provided in § 5, c. 397, Acts of 1896, to a per- 
son whose certificate of registration as a pharmacist has been 
revoked altogether, as provided in § 9 of said act? 

2. When the certificate of a registered pharmacist has been re- 
voked altogether, as provided in § 9, c. 397, Acts of 1896, can the 
Board reconsider, revoke, change or modify its decision or sen- 
tence, the same having gone into effect? 

St. 1896, c. 397, governs the action of the Board in relation to 
the examination of persons desiring to do business as pharma- 
cists. The material sections are as follows: — 

Section 5 [as amended by St. 1899, c. 422]. Any person desiring to do 
business as a iDharmacist shall upon payment of a fee of five dollars be 
entitled to examination, and if found qualified shall be registered as a 
pharmacist, and shall receive a certificate signed by the president and 
secretary of said board. Any person may be re-examined after the ex- 
piration of three months, at any regular meeting of the board, upon the 
payment of a fee of three dollars. All fees received by the board under 
this act shall be paid by the secretary of the board into the treasury of 
the Commonwealth. 

Section 9. If the full board sitting at such hearing shall find that the 
person complained against is guilty of the acts charged against him, said 
board may suspend his registration as a pharmacist and his certificate 
thereof, for such term as the board in their judgment, after due consider- 
ation of the facts, may deem for the best interest of the public, or may 
revoke it altogether, but the license or certificate of registration of a 
registered pharmacist shall not be suspended or revoked for a cause 
punishable by law until after conviction by a court of competent juris- 
diction. 



166 OPINIONS OF THE ATTORNEY-GENERAL. 

In a communication to your Board, dated October 3, 1899 
(2 Op. Atty.-Gen., 97), I stated it as my opinion that, notwith- 
standing the absence of any express provision to the contrary, 
your Board could not be compelled to examine a person as an 
applicant for a certificate as pharmacist after you had duly re- 
voked his license. I see no reason, however, why you may not, 
in the exercise of your discretion, grant a new examination to 
such person. The fifth section above quoted provides, among 
other things, that "Any person may be re-examined, after the 
expiration of three months, at any regular meeting of the board, 
upon the payment of a fee of three dollars." This is not, in my 
opinion, to be construed as making it compulsory upon you to 
grant a re-examination, but to authorize you to do so in your 
discretion. 

Inasmuch as you have no right to grant a license excepting 
after examination, I am of opinion that after a license has been 
regularly revoked you have no authority to revoke your decree 
and grant a new license without a new application and examina- 
tion. The certificate of the Board is a license to the holder thereof 
to do a business which the Legislature has seen fit to regulate 
under its authority to make laws for the good and w^elfare of the 
citizens of the Commonwealth. The Legislature has vested in 
the Board the authority of executing those laws. No man has the 
right to do the business of a pharmacist until he has satisfied the 
Board that he is qualified. A judgment of the Board revoking 
his license is a judgment that the good and welfare of the com- 
munity would be endangered by his continuing to do business as 
a pharmacist. If such judgment has been entered for good cause, 
as prescribed by the Legislature, and without any mistake of 
fact, I am of opinion that it is final, and that the Board has no 
authority to revoke it. 

It should be said, however, that it is the inherent right of every 
judicial body to correct mistakes of fact. If, therefore, a revoca- 
tion has been decreed through a mistake of such a character, and 
without such cause as the statute recognizes as sufficient, your 
Board may undoubtedly reconsider the revocation and correct its 
error. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 167 



Insurance — Surrender of Policy — Rebate. 

Where an insurant holding an assessment pohcy has contributed $10 per $1,000 
of insurance to a "safety fund," in which both the insurant and the insuring 
company have interests, a transaction by which the pohcy holder receives a 
new "old line" policy as of the date of his assessment policy in consideration 
of the surrender of the latter, and an allowance of $10 per $1,000 of new in- 
surance upon his first premium in consideration of the surrender of his interest 
in the safety fund, is not a "rebate" within the meaning of St. 1894, c. 522, 
§68 

The facts upon which you require my opinion, as stated in your to theinsur- 

^ ^ 1 ./ 1 7 J ance Com- 

letter of February 24, are substantially as follows: — ""fljo''*^'^' 

The Hartford Life Insurance Company was organized in 1867 ^^f^'^- 
as a regular stock life insurance corporation, with a paid-up cap- 
ital of $250,000. Under a special charter, granted by the State of 
Connecticut in 1880, it began operating as an assessment insurance 
corporation, continuing its stock business, however, as a separate 
and distinct department. In August, 1885, it was admitted to 
transact the business of assessment insurance in Massachusetts. 
December 31, 1898, it discontinued the assessment business and 
applied for admission to do a legal reserve business under St. 1894, 
c. 522, and its certificate of authority was issued in September, 
1899. 

While engaged in the business of insurance on the assessment 
plan, it devised and used what it called a "safety fund system." 
To this fund each person insured in that class contributed $10 on 
each $1,000 of insurance denoted by his policy. The provisions 
in relation to this safety fund are somewhat complicated. It is 
sufficient, however, for the purpose of your inquiry, to state that 
it is held in trust for the protection and security of insurers in the 
class contributing to the fund, and that, when the purposes set 
forth in the agreement with the trust company have been fully 
accomplished, the fund is to become the absolute property of the 
company. The agreement further provided that when the fund 
reached the sum of $300,000, thereafter there shall be a pro rata 
division of interest semi-annually among the policy holders of this 
class who had contributed their stipulated portion of the fund, five 
years prior to the date of such division; and that, whenever the 



108 OPINIONS OF THE ATTORNEY-GENERAL. 

fund reached the sum of $1,000,000, all payments to such fund 
thereafter should be divided like the interest. It was also pro- 
vided that, as long as there should be a policy of this class out- 
standing, the trust fund, excepting as aforesaid, should remain 
intact. 

The company desires to wind up its assessment business and to 
have all those who hold policies of assessment insurance exchange 
them for regular insurance policies. To this end the company 
proposes that, if an insured will surrender his assessment policy, 
it will issue to him an old line policy with the premium based on 
the age of original entry, take a lien thereon, or a premium note, 
for the amount of the reserve which would have accumulated had 
the policy been written originally as an old line policy, and pay 
him $10 for each $1,000 old line insurance so taken, deducting the 
same from the first premium on this new policy. The question 
stated by your letter is, whether that transaction constitutes a 
rebate within the meaning of that word as used in St. 1894, c. 522, 
§68. 

The section in question is as follows: ''No life insurance com- 
pany doing business in Massachusetts shall make or permit any 
distinction or discrimination in favor of individuals between 
insurants of the same class and equal expectation of life in the 
amount or payment of premiums or rates charged for policies of 
life or endowment insurance, or in the dividends or other benefits 
payable thereon, or in any other of the terms and conditions of 
the contracts it makes ; nor shall any such company or any agent 
thereof make any contract of insurance, or agreement as to such 
contract, other than as plainly expressed in the policy issued 
thereon; nor shall any such company or agent pay or allow, or 
offer to pay or allow as inducement to insurance, any rebate of 
premium payable on the policy, or any special favor or advantage 
in the dividends or other benefit to accrue thereon, or any valu- 
able consideration or inducement whatever not specified in the 
policy contract of insurance." 

It is contended that, inasmuch as the safety fund is the prop- 
erty of the corporation, and that, as is claimed, the policy holder 
has no interest in the fund, the payment of $10 to the policy 



HOSEA M. KNOAVLTOX, ATTORNEY-GENERAL. 169 

holder at the time of paying his first premium, by deducting it 
from his first premium, amounts to a rebate within the meaning 
of that word as used in the statute. If it were true that the policy 
holder had no interest in the fund, the proposed transaction might 
amount to a rebate ; but it clearly appears, upon an examination 
of the trust agreement, that he has an interest in the safety fund, 
which he loses when he surrenders his assessment policy. As 
stated above, he is entitled to a semi-annual interest payment 
from the fund, varying in amount according to the size of the 
fund, so long as his policy remains outstanding. How long the 
fund will be so held cannot now be determined. These interest 
payments he loses by surrendering his policy; while, on the other 
hand, the insurance company is clearly the gainer by the sur- 
render of his policy, for the reason that all obligations attached to 
the safety fund are discharged when all such policies are sur- 
rendered, so that the fund will be so far the absolute property of 
the corporation that it may be divided among the stockholders or 
invested for their benefit. Even if the policy holder should not 
take out new insurance, it would be an advantageous contract for 
the company to offer to pay him the same sum proposed, as an 
inducement to him to surrender his policy. 

It follows, therefore, that the proposition of the company is not 
made, primarily at least, as an inducement to insure, but to secure 
his release of his interest in the safety fund. He has acquired, 
under his old policy, a valuable interest in that fund, which, by 
his acceptance of the offer of the company, he gives up; while, on 
the other hand, the company, by the cancellation of his old poUcy, 
is relieved, so far as his policy is concerned, from the conditions 
upon which the fund is held. One of the considerations, there- 
fore, for the payment of the $10 is the surrender of the old policy, 
and, by consequence, the interest of the policy holder in the safety 
fund. The mere fact that, for convenience, the amount is de- 
ducted from his first premium in the new policy, does not change 
the essential character of the transaction. 

It is true that, upon a voluntary surrender of his old policy by 
the insured, the company pays nothing for a release of his interest. 
There is no reason why it should, the surrender being voluntary 



170 OPINIONS OF THE ATTORNEY-GENERAL. 

and without consideration. It is also true that the offer is limited 
to such old policy holders as exchange them for new policies. 
Notwithstanding these facts, it remains true that the release by 
the insured of his interest in the safety fund is, in part at least, a 
consideration for the payment of the $10. 

The whole transaction is a barter between the company and one 
of its policy holders, under the terms of which the insured remains 
a policy holder, gives up certain rights which he has, and in the 
place of them acquires new rights; while, on the other hand, the 
company pays the sum of $10, and acquires certain releases of 
value to it from him. Such a transaction, in which there are con- 
siderations of various natures on each side, although one of them 
involves the taking out of a new policy in exchange for an old 
policy, is not, in my judgment, within the terms of the statute 
forbidding the payment of a rebate as an inducement to persons 
to take out insurance. 

It ought to be added, however, as a necessary consequence of 
the foregoing considerations, that, if the deduction of $10 is made 
from the first payment of one who formerly held an assessment 
policy, but whose policy has lapsed so that he no longer has any 
interest in the safety fund, such a deduction would be within the 
terms of the statute prohibiting rebates, unless, under the terms of 
his former policy, he has the right to have it, revived. 



Residence — Evidence of Intention — Enlistment, 

A person actually living in a city within the Commonwealth, who has filed his 
primary declaration of intention to become a citizen of the United States, 
describing himself as a resident of such city, and who enlists therefrom, is 
prima facie a resident of this Commonwealth, and is entitled to the benefits 
of St. 1898, c. 561. 

The length of such residence is not material under the statute, except so far as it 
is confirmatory evidence of the intention of the party. 

To tiie^^ ^ Your letter of May 3 requires my opinion upon the question 

g" nc^ii'r'^ '^'^' whether John Kennelly, upon the facts submitted with your let- 
May's, ter, was a resident of Massachusetts at the time of his enlistment, 
within the meaning of that word as used in St. 1898, c. 561, so as 
to entitle him to the benefits of the provisions of that chapter. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 171 

It appears by the facts submitted that he came to this country 
from some foreign port, arriving in New York on the twenty- 
second day of June, 1898, which, as it happens, was the day on 
which the act in question was signed. He subsequently came to 
Springfield, where, on the nineteenth day of July of the same year, 
he filed his primary declaration of intention to become a citizen of 
the United States, describing himself as a resident of Springfield. 
He enlisted on the twenty-fifth day of July. 

Prima facie he was a resident of Springfield at the time of his 
enlistment. He was there, and described himself as of that place. 
If he came there only for the purpose of enlistment, and not to 
become a resident of that city, he would not be within the act; 
but unless you are able to show otherwise, his removal to Spring- 
field, declaration of intention and enlistment in that city are suffi- 
cient, in my opinion, to constitute him a resident and to entitle 
him to the benefits of the act in question. The length of time of 
residence is not material under the statute, excepting so far as it 
is confirmatory evidence of the intention of the party. 



New England Cotton Yarn Company — Private Corpo- 
ration — Stock Watering — Capital Stock — Commis- 
sioner of Corporations. 

The enactment of the bill to incorporate the New England Cotton Yarn Company, 
a private corporation, would afford no greater opportunity for the practice 
of "stock watering" than is given to such corporations in the general laws 
of this Commonwealth. 

Corporations formed for the carrying on of private business, except for the require- 
ment that they begin such business upon a fully paid capital are left free 
under the general laws from any supervision over the investment of their 
capital stock. 

Stock watering is the issuance of capital stock that does not represent full value 
paid in, either in cash or in property. Since the Commissioner of Corpo- 
rations has the final decision upon the value of property taken in exchange 
for shares (Pub. Sts., c. 106, § 48), the issuance of watered stock depends 
upon the ability of the commissioner to determine accurately the value of 
such property. 

I have the honor to acknowledge the receipt of a copy of an to tiie House 
order adopted by the Honorable House of Representatives, April tives'^^'^^^^'^ '^" 
26, 1900, requiring the opinion of the Attorney-General upon the May*. 



172 OPINIONS OF THE ATTOUNEY-GEXEKAL. 

following question: "Would the enactment of the 'Bill to incor- 
porate the New England Cotton Yarn Company/ now before the 
House, afford said corporation, under any circumstances, the 
opportunity, in the issue of its securities, to practise what is com- 
monly known as stock watering?" 

Massachusetts has for many years undertaken to prohibit the 
issuance of stock by corporations organized under its laws except- 
ing for equivalent value in cash or property. Pub. Sts., c. 106, 
§§ 47, 48. Before 1894 it had never attempted to regulate the 
investment or disposition of the capital stock so paid in; but in 
that year certain statutes were enacted, commonly called the anti- 
stock-watering statutes, which undertook, as to certain public- 
service corporations, to regulate not only the paying in, but, to a 
certain extent, the expenditure, as well, of the capital stock of 
such corporations. They are: St. 1894, c. 450, relating to gas 
and electric light companies; c. 452, relating to telegraph, tele- 
phone, aqueduct and water companies; c. 462, relating to railroad 
and street railway companies; and c. 472, relating to the increase 
of the capital stock of the foregoing corporations. These statutes 
provide, in substance, that only so much capital stock be issued 
by such corporations as is shown to the satisfaction of the board 
having charge of such corporations to be necessary for the pur- 
poses for which it is authorized, and also that it shall not be ex- 
pended for any other purpose. 

On the other hand, corporations formed for the carrying on of 
private business, in which citizens generally are interested only as 
possible creditors, are, under our general laws, left free from any 
supervision or interference by the Commonwealth in the conduct 
of their business. The State requires only that they begin busi- 
ness with a fully paid capital stock. How they shall expend 
proceeds of the stock so paid in, is left to the officers of such 
corporations, under the supervision of their stockholders, and 
with the right, in certain cases, of investigation by creditors if 
there has been improvidence or fraud. For example: when a 
cotton mill is organized, the general laws undertake to require 
that the corporation shall not begin business until its capital 
stock is fully paid in; but how it shall expend its money, how 



HOSEA M. KXOWLTON, ATTORNEY-GENERAL. 173 

much it shall pay for plant, for supplies or for labor, are questions 
left wholly to the regulation of the corporation and its officers, so 
far as the State is concerned. Another example of this distinction 
may be found in the bill under consideration. Section 5 provides 
for the redemption, at the election of the corporation, of its pre- 
ferred shares at a fixed value. This provision, however, has to do 
only with the expenditure of the capital stock and not with the 
original paying in of such stock. 

It is entirely possible, therefore, under our laws, for a corpora- 
tion to begin business with a capital fully paid in, and yet after- 
wards so to mismanage its affairs and misspend its capital that the 
property which its capital stock is supposed to represent disap- 
pears in whole or in part. But this is not stock watering, in the 
strict sense of that term, which means only the issuing of stock 
which does not represent value received, at the time it is issued. 

When, if ever, the State enters upon the difficult task of super- 
vising the conduct of the business of private corporations, as it 
already has of public-service corporations, and of the investment 
of their capital stock, it will undoubtedly be by general laws ap- 
plicable to all such corporations. In view of this well-settled 
policy of the Commonwealth, I assume that the question sub- 
mitted by your honorable body relates only to the paying in of 
the original capital stock and of any increase thereof, and has 
nothing to do with the possible results of the carrying on of its 
business, — results common to this and to all other private cor- 
porations. So interpreted, the question submitted is, practically, 
whether the bill permits the corporation to issue capital stock 
that does not represent full value paid in, either in cash or in 
property. 

The proposed corporation is expressly made subject by the bill 
to all the duties, restrictions and liabilities contained in all general 
laws now or hereafter in force relating to such corporations, except 
as therein provided. The exceptions referred to are: first, that 
by the second section the original capital stock is fixed at one 
million dollars; whereas, under the general statutes, the capital 
stock of a manufacturing corporation is fixed by the incorporators, 
and may be any sum not less than five thousand dollars; and, 



174 OPINIONS OF THE ATTORNEY-GENERAL. 

second, that the capital stock may be divided into preferred and 
common shares, as the corporation may determine. The general 
law contains no reference to preferred shares. The bill also au- 
thorizes the corporation to purchase the property of the New 
England Cotton Yarn Company, a corporation organized under 
the laws of the State of New Jersey. So far as this purchase is to 
be made by the issuing of shares of stock, it is governed by the 
general provisions of law relating to the paying in of capital stock. 
None of these special provisions affect the question submitted; 
and it is, therefore, to be determined by a consideration of the 
provisions of the general laws relating to such corporations, and 
how far they are effectual to prevent the issuance of stock for less 
than the par value thereof. 

Pub. Sts., c. 106, § 46, provides, in substance, that no manu- 
facturing corporation shall commence the transaction of business 
until the whole amount of its capital stock has been paid in, and a 
certificate to that effect and of the manner in which the same has 
been paid in, and at the time of making the certificate been in- 
vested or voted by the corporation to be invested, signed and 
sworn to, has been filed in the office of the Secretary of the Com- 
monwealth. 

Section 48 provides that ''conveyance to the corporation of 
property, real or personal, at a fair valuation, shall be deemed a 
sufficient paying in of its capital stock to the extent of such value, 
if a statement, made, signed and sworn to by its president, treas- 
urer, and a majority of its directors, giving a description of such 
property and the value at which it has been taken in payment, in 
such detail as the commissioner of corporations shall require or 
approve, and endorsed with his certificate that he is satisfied that 
said valuation is fair and reasonable, is filed with the Secretary of 
the Commonwealth." 

These provisions apply to the original capital stock of the pro- 
posed corporation, and, by § 4 of the bill, they govern any increase 
of capital stock which may from time to time be made by the 
corporation. It follows that both the original capital stock and 
any increase thereof must be made in cash or in property the 
equivalent of cash, at a fair valuation; the question of such fair- 



HOSEA M. IvNOWLTOX, ATTORNEY-GEXERAL. 175 

ness being submitted to the determination of the Commissioner of 
Corporations, whose decision in the matter is final and binding 
upon all parties. 

Whether stock may be issued which does not represent full 
value depends in this case, as in the case of all manufacturing cor- 
porations organized under the general law, upon the ability of the 
commissioner to determine accurately the value of the property 
taken in exchange for shares issued. If the valuation fixed by 
him is the true value of the property taken, the stock issued there- 
for will be fully paid for. If he fixes too high a value upon the 
property conveyed, the stock issued in exchange therefor to that 
extent will be watered stock, in the sense that it does not repre- 
sent actual equivalent property. How far the provisions I have re- 
ferred to, have been found to be effectual to prevent manufactur- 
ing corporations from issuing watered stock, and how far they will 
operate to the same end in the case of the corporation in question, 
are questions of fact which it is not my province to determine. 



Metropolitan Water Board — Citizen Labor — Prefer- 
ence — Nine-hour Law — Weekly Payments. 

The word "preference," as used in St. 1895, c. 488, § 31, requires the employment 
of citizens only when they can be employed upon as advantageous terms as 
aliens. 

Where laborers are regularly employed by contractors upon public works for more 
than nine hours per day, payment being per hour for the time during which 
they actually work, it is not a violation of St. 1894, c. 508, § 7. 

Even where the laborers are told that they can only be employed upon their agree- 
ment to work more than nine hours per day, for so much per hour, and they 
accept the employment upon such terms, ft is not a violation of that statute. 

The statute requiring the weekly payment of employees (St. 1894, c. 508, §§ 51-54, 
amended by St. 1899, c. 247) does not include the employment of labor by 
the Commonwealth or its officers. 

While, under existing statutes, your committee has no right to to the Joint 
the opinion of this office, the questions you submit relate to a mitteeofthe 

^ ; T. J Legislature. 

1900 
Mar 14. 



matter specially committed to you by the Legislature, and appear 
to me to be fairly entitled to my consideration. 

1. ''Section 31 of c. 488 of the metropolitan water act provides 
that in the construction of the metropolitan water works ' prefer- 



17(5 OPINIONS OF THE ATTORNEY-GENERAL. 

ence in employment shall be given to citizens of this Common- 
wealth.' If it appears that citizen labor of this Commonwealth 
can be hired in sufficient numbers at not less than $1.50 per day 
per laborer, and ecjually efficient alien labor at $1.35 per day, does 
the clause referred to above require that, other things being equal, 
employment shall be given by the Metropolitan Water Board in 
doing its work, to citizen laborers?" 

To this I answer No, for reasons stated in my reply to the next 
question. 

2. "Please state what is meant by the clause 'preference in 
employment shall be given to citizens of this Commonwealth.' " 

In my judgment, the word "preference" as used in the statute 
referred to requires the employment of citizens when such labor 
can be employed upon as advantageous terms as alien labor. If 
aliens are willing to do as good work more cheaply, the duty of 
preference does not require the employment of citizens at a higher 
rate of wages. 

3. "Is the employment of laborers by contractors on public 
works more than nine hours per day, regularly, a violation of the 
law, the laborers being paid so much per hour for the time during 
which they actually work?" 

To this question I answer No. St. 1894, c. 508, § 7, which 
provides that "Nine hours shall constitute a day's work for all 
laborers," etc., refers only to employment by the day. It does 
not and is not intended to prohibit the employment of labor by 
the hour, if the laborer is willing to be so employed. 

4. "Is such employment of laborers unlawful if the continuance 
of their employment is dependent upon their willingness to work 
more than nine hours per day?" 

If a laborer is told that he can only be employed upon his 
agreement to work more than nine hours per day at a given rate 
per hour, and accepts the employment upon such terms, such 
employment is an evasion of law, but not, in my judgment, a vio- 
lation of it. Being a penal law, it is to be construed strictly. A 
person so employed, however powerful the inducement, is, never- 
theless, in contemplation of law, working voluntarily, and the 
case, so far as the statute is concerned, is the same as though no 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 177 

such threat were held out to him. Employment by the hour is 
not within the statute. 

5. "Is the payment by the Metropolitan Water Board of the 
persons directly employed by the Board monthly, or in any other 
way than weekly, unlawful?" 

St. 1894, c. 508, §§ 51-54, as amended by St. 1899, c. 247, do 
not include the employment of labor by the Commonwealth or its 
officers. 



State Highway — Filing of Plans — Lay-out — Discon- 
tinuance — Errors. 

The Massachusetts Highway Commission, after a State higliway has been laid out 
and the required plans and certificates have been filed in the offices of the 
town and county clerks, have no authority to discontinue such highway or 
any part of it. 

In general, however, mere clerical errors may be corrected at any time. 

Your letter of November 17, 1899, requires the opinion of the TotheMassa. 

' ' ^ '^ . cluisetts 

Attorney-General as to the powers of the Massachusetts Highway Highway 

■^ ^ o J Commission. 

Commission with reference to correcting errors or making changes ^^^^i. 
in State highway lay-outs after the plans and other papers have 
been filed in the offices of the town and of the county clerks. 

I am informed that the specific case which gave rise to this ques- 
tion is as follows : Your connnission filed a plan defining the width 
of land taken for a State highway. Since the plan was filed, the 
commission have determined that the width defined is greater 
than is necessary for the purpose of the highway; and, as the 
abutters are willing to have the surplus width reconveyed to them, 
the commission are desirous, if permissible, to abandon such land 
as they find to be unnecessary for the highway. 

St. 1897, c. 355, § 1, amending St. 1894, c. 497, § 2, provides 
that " Said highway commission shall consider such petition . . . 
and, if they deem that the highway should be laid out or be taken 
charge of by the Commonwealth, shall file a certified copy of a 
plan thereof in the office of the county commissioners 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 high- 
way in accordance with said plan, and shall file a copy of the plan 



178 OPINIONS OF TUE ATTORNEY-GENERAL.- 

and location of the portion lying in each city or town in the office 
of the clerk of said city or town, and said highway shall, after the 
filing of said plans, be laid out as a highway ... by said commis- 
sion, at the expense of the Connnonwealth." 

The plans and certificate so filed in accordance with the pro- 
visions of this section constitute the only record of the taking of 
the land by the Highway Commission. They are not working 
plans, for they do not purport to give detailed information as to 
grade, etc.; they only define the bounds of the land taken. No 
other act of taking is provided by the statutes; and I am of 
opinion, therefore, that the filing of the plans and certificate must 
be deemed to be the act of taking by eminent domain of the lands 
so defined, and that the taking is complete upon the filing of such 
plans and certificate. 

The section quoted provides in the first instance for a deter- 
mination by the commissioners that the highway should be "laid 
out;" and, as soon as such determination is reached, for carrying 
it into effect by filing plans and certificates therewith. The term 
"lay out" has acquired a technical meaning when used in connec- 
tion with the highways in the legislation of this Commonwealth. 
"* Laying ' out is . . . the appropriate expression for locating and 
establishing a new highway." Foster v. Park Commissioners, 133 
Mass. 321 (329). In the same case it is said by the court that "It 
is unnecessary to say that, after a way has been laid out, no addi- 
tional order or adjudication is necessary to construct it." By the 
use of the expression "lay out as a highway," the Legislature 
means the passage of the order so to do. Hitchcock v. Springfield, 
121 Mass. 382 (385). The filing of the plans, therefore, may be 
taken to be the technical "laying out" of the highway by the com- 
mission. The title to the land is then complete and the land taken 
has become a State highway. The same section, it is true, later 
provides that after the filing of the plans the State highway is to 
"be laid out as a highway;" but, inasmuch as no technical act of 
laying out is provided thereafterwards, I am of opinion that the 
words "lay out as a highway ' ' are to be interpreted as meaning the 
actual construction of the way. Such a use of the term "lay out" 
is not wholly unknown to the statutes or to the decisions of the 



HOSEA M. KNOWLTON, ATTORNEY-GEXERAL. 179 

courts. See St. 1871, c. 382, § 1, and Hitchcock v. Springfield, 121 
Mass. 382. 

The statutes contain no provision for discontinuance of a State 
highway by the Highway Commission. In this respect the stat- 
utes differ from the Pubhc Statutes relating to the laying out 
of ways by county commissioners and by town officers. These 
statutes (Pub. Sts., c. 49) contain full provisions for discontinu- 
ing county or other ways. It must, therefore, be taken to be the 
intent of the Legislature that your Board should have no author- 
ity to discontinue or to give up a highway under the control of the 
Commonwealth. Having no power to discontinue a State high- 
way, you have no power to discontinue any portion of it. 

The question submitted inquires also as to the power of the 
commissioners to correct errors, which I understand to mean cler- 
ical or topographical errors. But upon the facts of the specific 
case submitted, it is not necessary to consider this branch of the 
question. In general, mere clerical errors may at any time be cor- 
rected, and I have little doubt of your power to do so, provided 
the substance of the original lay-out is adhered to. 



State Highway — Street Railway — Alterations — Ap- 
portionment OF Cost. 

The Massachusetts Highway Commission cannot, under St. 1898, c. 578, § 16, make 
any apportionment of the cost of changes in location or alterations of street 
railway tracks ordered by the commission before the passage of that statute. 

Your letter of March 16 states that the Highway Commission, to the Massa- 
in laying out a State highway in the town of Merrimac, in Sep- Highway 
tember, 1897, ordered the tracks of a street railway company to laoo 

be removed from the centre of the location and relaid at a lower 

grade, and that this relocation involved the building of a retain- 
ing wall; that, the railway company having refused to build the 
v/all, the commission, under the provisions of St. 1896, c. 541, 
made a contract for the building of the wall, and transmitted to 
the Auditor the bill for the amount, to be collected from the street 
railwa}^ company. 

The commission now desire to know whether, acting under the 



160 OPINIONS OF THE ATTORNEY-GENf:RAL. 

provisions of St. 1898, c. 578, § 16, the commission have any 
authority to make any allowance to the street railway company 
on this bill. 

St. 1896, c. 541, provides that ''Whenever in the construction 
of a state highway it becomes necessary, in the opinion of the 
Massachusetts 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 different material between its tracks, or 
to make any other change in the location and construction of said 
railway, said commission may, in the manner provided in section 
twenty-two of chapter one hundred and thirteen of the Public 
Statutes for making such changes by boards of aldermen and 
selectmen, order the company owning or operating said railway to 
make such changes." The section further provides that the cost 
of making such alterations, whether by the railway company or 
by the commission, shall be paid by the commission and assessed 
by the Auditor upon the railway company. The commission ob- 
\4ously followed the provisions of this statute. The matter of 
payment of the bill is now in the hands of the Auditor and the 
Tax Commissioner, and the commission have no further respon- 
sibility, duty or rights in the matter. 

St. 1898, c, 578, it is true, authorizes the commission, under 
certain circumstances, to apportion the cost of such alterations as 
may seem reasonable ; but this statute is not retroactive, and does 
not affect rights and liabilities fixed before its enactment. 



Pauper — Settlement — Repeal of Statute — Effect of 
Repeal on Liability of City or Town. 

A settlement gained under Gen. Sts., c. 69, § 1, cl. 5, and completed before the enact- 
ment of the repealing statute, which expressly saves "all acts done or rights 
accruing" before the repeal takes effect, is not lost or affected by such repeal. 

If by reason of a settlement a city or town has become liable for the support of a 
pauper, such liability is not taken away nor is the right of another city or 
town, or of the Commonwealth, to enforce such liability, destroj'ed because 
of the repeal of the statute under which the settlement was gained, if such 
repeal is not retroactive. 

Board o^** The material facts in the New Bedford case, as to which your 
^ wofV^" letter of April 24 requires the opinion of the Attorney-General, 

are as follows : — 



May -21. 



HOSEA M. IvNOWLTON, ATTORNEY-GENERAL. 181 

The pauper in question, at present in the Epileptic Hospital, 
was born in New Bedford March 26, 1873. He has never acquired 
a settlement in his own right. His father was born in Whately in 
1833, where he resided until 1859, then in different places, without 
acquiring a settlement in any of them, until 1865, when he re- 
moved to New Bedford, where he remained until some time after 
May 1, 1874. He only acquired a settlement, if at all, by his resi- 
dence in New Bedford, where, from and including 1867, up to and 
including 1873, he was assessed for and paid taxes to an amount 
sufficient to bring him within the provisions of Gen. Sts., c. 69, § 1, 
cl. 5, which provided that "Any person of the age of twenty-one 
years, being a citizen of this or any other of the United States, and 
having an estate, the principal of which shall be set at two hun- 
dred dollars, or the income at twelve dollars in the valuation of 
estates made by assessors, and being assessed for the same, to 
state, county, city or town taxes, for five years successively in the 
place where he dwells and has his home, shall thereby gain a set- 
tlement therein." , 

The grandfather of the pauper was settled in Whately, dying in 
1863, so that no settlement could be derived from him. The 
mother of the pauper had no settlement excepting that of her 
husband. 

Upon the foregoing facts, the father of the pauper clearly ac- 
quired a settlement in New Bedford under the provisions of Gen. 
Sts., c. 69, § 1, cl. 5, above quoted; and the pauper, not having 
acquired any settlement of his own, took by derivation the settle- 
ment of his father under the provisions of Pub. Sts., c. 83, § 1, 
cl. 2. I understand, however, that it is claimed on behalf of 
New Bedford that the provisions in the General Statutes, above 
referred to, under which he acquired his settlement, having been 
repealed, the settlement became void, and that, at least, what- 
ever rights might have accrued to the Commonwealth against 
New Bedford under it, cannot now be enforced. 

St. 1878, c. 190, which repealed the section in question, pro- 
vided in the repealing clause (§ 5) for saving "all acts done, 
or rights accruing, accrued or established, or proceedings, doings 
or acts ratified or confirmed, or suits or proceedings had or com- 
menced, before the repeal takes effect." This statute of 1878 



ib2 



OPINIOXS OF THE ATTORNEY-GENERAL. 



was re-enacted in the Public Statutes as c. 83, and it is expressly 
provided, in Pub. Sts., c. 223, § 4, that the repeal of prior acts 
''shall not affect any act done, or any right accrued or estab- 
lished, etc., before the repeal takes effect." 

The settlement of the father, having been completed before 
the enactment of the statute of 1878, is, therefore, not affected 
or lost by the repeal of the section under which it was acquired. 

I am unable to understand the force of the further contention 
that, although the settlement may still exist as to the pauper, 
the Commonwealth has no means of enforcing rights under it as 
against municipalities. If a city or town has become liable for 
the support of a pauper by reason of a settlement in such city 
or town, its liability for such support is not taken away, nor is 
the right of another town or of the Commonwealth to enforce 
such liability destroyed, because of the repeal of the statute, the 
repeal not being retroactive. 



To the Massa- 
chusetts 
llighway 
Cominission. 

1900 
May 20. 



State Highway — Street Railw^ ay — Alteration of Loca- 
tion — Requirement of Paving. 

The Massachusetts Highway Commission has no authority to require of a street 
railway, upon a relocation of its tracks ordered by the commission, that 
"the space between the rails, and eighteen inches on the outside of each rail, 
shall be paved with block paving." 

Your letter of December 30, 1899, encloses a copy of a decree 
issued by the commission to the Wakefield & Stoneham Street 
Railway Company, dated November 10, 1899, referring to the 
location and care of its tracks on the State highway in Reading, 
which decree was amended by vote of the commission passed 
December 1, 1899. The question submitted by your letter is 
whether that part of the decree which, as amended, provides 
that ''Where said tracks cross the State highway the space be- 
tween the rails and eighteen inches outside of each rail, for the 
width of twenty-one feet over the State highway macadam 
and shoulders, shall be paved with block paving," is within the 
jurisdiction of the commission. I am informed that a location 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 183 

had been granted to the railway in question before the way 
was taken in charge by the Highway Commission as a State 
highway, and that its tracks had been laid thereon under a 
franchise granted by the selectmen of Reading. The decree 
in question is for a relocation of said tracks, made upon petition 
of the selectmen of the tow^n of Reading, after due notice and 
public hearing. 

The commission undoubtedly has general jurisdiction to order 
a relocation of tracks which were upon a State highway before 
the same was laid out as a State highway. By St. 1898, c. 578, 
§ 24, the State Highway Commission is given the same authority 
with regard to the location and maintenance of street railways 
located before the street is taken charge of by the commission 
as is conferred upon boards of aldermen and selectmen, "such 
authority to be exercised in the same manner, subject to the 
same provisions, and subject to the same rights on the part of 
abutters and street railway companies, as are herein provided 
with respect to the relocation and maintenance of street railways 
in public ways not under the jurisdiction or charge of said com- 
mission." The Board, therefore, has the power vested by the 
statute of 1898 in selectmen of towns as to street railways, but 
no more; and the reply to the question contained in your letter 
is determined by a consideration of the powers vested in munic- 
ipal boards relating to such matters. 

St. 1898, c. 578, § 16, contains the authority for the action of 
your Board, it being the section which authorizes municipal 
boards to alter the location of tracks. It authorizes the alteration 
of the location of tracks "in the maimer and subject to the pro- 
visions contained in section fifteen." Section 15, which relates 
to the extension of street railway locations, authorizes municipal 
boards to grant such extensions, to prescribe the manner in which 
the tracks shall be laid, and the kind of rails, poles, wires and 
other appliances which shall be used. It provides, further, that 
the board "shall not impose as terms. or conditions of such grant 
any obligations other than or in addition to those applying to all 
street railways under the general law in force at the date of the 
passage of tliis act, or such as may have been imposed in the 



184 OPINIONS OF THE ATTORNEY-GENERAL. 

original grant of location to such company in such city or town 
subsequent to the passage hereof." As this location was granted 
prior to the passage of the statute of 1898, no ol)ligation may 
under this section be imposed upon the street railway company 
other than or in addition to those applying to all street railways 
as the law stood before the passage of the act. 

It becomes necessary, therefore, to decide whether so much of 
the order of your Board as requires that the space between the 
rails, and eighteen inches on the outside of each rail, shall be 
paved with block paving, is an obligation authorized by the 
general statutes relating to street railways prior to 1898. I 
know of no such authority. There was nothing in the general 
street railway law (Pub. Sts., c. 113) which imposed upon street 
railway companies any duty of paving either between the rails 
or outside thereof. Section 32 required them to keep in repair 
the paving and other surface material of the portions of streets, 
roads and bridges occupied by their tracks; and, if such tracks 
occupied unpaved streets, to keep in repair eighteen inches on 
each side of the portion so occupied by the tracks. This, however, 
was very far from imposing upon street railway companies the 
duty of paving between their rails or outside of them. 

It has without doubt been commonly understood by munic- 
ipal boards that in granting franchises under the street railway 
law they had the right to impose obligations upon the company 
receiving the franchise. Many franchises have been granted in 
which the company was required to pave not only the portion of 
the track between the rails, but a part or the whole of the way 
outside the rails. Other franchises have imposed pecuniary 
obligations of various kinds. All these, however, were, in my 
judgment, without authority of law. In granting locations and 
extensions of locations they were authorized only to impose such 
restrictions as they deem the interest of the public might require. 
Pub. Sts., c. 113, §§ 7, 21. Regardless of what the practice has 
been under this section, I am of opinion that an obligation involv- 
ing the expenditure of money or a tax in any form upon the street 
railway company is not a restriction within the meaning of that 
word as used in the sections referred to. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 185 

In granting street railway locations under the old law, munici- 
pal boards acted solely as agents of the public. No city or town 
was ever given the authority to grant street railway franchises 
in its streets. Such streets are not the property of the cities and 
towns in which they are situated, — they belong to the public. 
They are free to all citizens, and the absolute power of authority 
over them belongs to the Commonwealth, — the only corporation 
authorized to represent the public. At first street railway loca- 
tions were made the subject of express grant by the Legislature. * 
Later, as they became more frequent, it was deemed expedient to 
provide for the establishment of a tribunal which would represent 
the Commonwealth, having authority to grant or to refuse loca- 
tions, as the interests of the public might require. 

The delegation of this authority to boards of aldermen in cities 
and to selectmen in towns did not confer any rights in respect to 
such grants upon cities and towns themselves. The officers so 
delegated act not as agents of the cities and towns, but as repre- 
sentatives of the Commonwealth, guarding the interests of the 
public. They had no right to bargain and sell street railway 
franchises, nor to make terms with street railway companies which 
should accrue to the financial benefit of the cities and towns in 
which the locations were given. They could not make a binding 
contract, either for a time limit of the franchise or for the pay- 
ment of any revenue directly or indirectly to the Commonwealth 
or to a city or town. 

A comparison of the old with the new railroad law may serve 
to illustrate this distinction. Under the old law (Pub. Sts., c. 113, 
§ 7), the municipal boards were authorized to grant or refuse 
locations ''under such restrictions as they deem the interests of 
the public may require." Similar language governs their action 
in respect to extensions of the original location. The present law 
(St. 1898, c. 578, § 13), on the other hand, expressly authorizes 
the municipal boards to ''impose such other terms, conditions 
and obligations in addition to those applying to all street railways 
under the general proxdsions of law as the public interest may in 
their judgment require." The distinction between the two is 
material. The word "restrictions," as used in the former law. 



186 OPINIONS OF THE ATTORNEY-GENERAL. 

was obviously intended to signify such limitations upon what 
otherwise would be an unrestricted grant, as they might deem to 
be for the interest of the public. For example, provisions as to 
the kind of rails to be used, the time of completion of the work, 
the rates of fares to be charged, the number of cars to be run, 
and the portions of the streets in which tracks should be -laid, 
would be "restrictions" for the benefit of the pubhc, and which 
municipal boards under the old law would be authorized to 
impose. 

The existing law, on the other hand, was undoubtedly framed 
to give the right to municipal boards to make contracts for the 
location of franchises which should enure to the benefit of the 
cities and towns in which such locations were granted. It was 
obviously intended to legalize what had been the practice of 
municipal boards under the former law, and to allow boards, in 
granting franchises, to put such burdens upon the railway com- 
panies for the benefit of the municipalities as they deem wise. 

It follows, therefore, that, under the law prior to the statute of 
1898, municipal boards had no authority to impose upon street 
railway companies the burden of paving any portion of the streets 
in which locations were granted to them, and that in requiring 
such an obligation your Board has exceeded its authority. By 
§ 11 of the later law, whenever the tracks of a street railway com- 
pany are altered and the surface material is thereby disturbed, 
the company must at its own expense replace the surface material 
with the same form of construction as that disturbed. No other 
duty is incumbent upon it, and no other obligation can be imposed 
relating to the surface of the way. 



Civil Service — Veterans Preference Act. 

The provisions of the -civil service legislation relating to soldiers and sailors are 
limited to such soldiers and sailors as served during the civil war in the army 
or navy of the United States, and were honorably discharged therefrom. 

To the Civil gt. 1896, c. 517, is a general act relating to the preference of 

Service Com- ; 7 e> o i 

'"loolf"' veterans in the civil service. It repeals all previous legislation 

on the subject, excepting so much of the original civil service 



May '28. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 187 

act (St. 1884, c. 320) as relates to such exemptions. In the orig- 
inal statute (St. 1884, c. 320, § 14, cl. 6) the language is: ''appli- 
cants who served in the army or navy of the United States in 
time of war, and have been honorably discharged therefrom." 
In the statutes of 1896 the word ''veteran," which is used through- 
out the statute, is defined in the first section of the statute to 
mean "a person who served in the army or navy of the United 
States in the time of the w^ar of the rebellion, and was honorably 
discharged therefrom." 

Your letter of May 18 submits the question whether the ex- 
pression above quoted, as used in the original statute, is to be 
taken to have the same meaning as the word "veteran" used in 
the statute of 1896; or whether the term is to be construed, as it 
may be literally, to include those who served in the recent war 
with Spain, and have been honorably discharged from such 
service. Your letter inquires further as to whether the existing 
difficulties in the Philippine Islands amount to war v/ithin the 
definition of that term, as used in the statute first above quoted. 
In view of the conclusions at which I have arrived upon the 
main proposition submitted, it is not necessary to consider the 
latter question. 

The expression originally used in St. 1884, above quoted, to 
wit, "applicants who served in the army or navy of the United 
States in time of war and have been honorably discharged there- 
from," was used again in St. 1887, c. 437. In St. 1889, c. 473, 
the language was: "Persons . . . who have served in the army 
or navy of the United States in time of war and been honorably 
discharged therefrom." In St. 1894, c. 519, the language is: "No 
person who has served in the United States army or navy in time 
of war, and been honorably discharged therefrom," etc. This 
act is entitled "An Act relative to veterans employed in the civil 
service of cities." This is the first use of the word "veterans" 
in civil service legislation. 

The next statute relating to the subject was St. 1895, c. 501. 
This chapter was declared imconstitutional by the Supreme 
Judicial Court in Brown v. Russell (166 Mass. 14), but may 
properly be considered with the other acts upon the subject in 



188 OPINIONS OF tup: attorney-general. 

ascertaining the intent of the Legislature. In this act the word 
"veteran" was defined in the same terms as in the statute of 
1896, above quoted. By St. 1896, c. 517, above referred to, 
this statute was amended to conform to the opinion of the court 
in Brown v. Russell. 

All these statutes are to be regarded as one body of legislation, 
relating to the same subject, enacted for the same purpose and 
for the benefit of the same class. 

The language originally used might be so construed as to 
include not only those who had served in the army or navy in time 
of war before the passage of the act, but any one who after its 
passage had so served and should thus be brought within the 
designation of the act. In view, however, of all the attendant 
circumstances, this cannot be said to have been the intent of the 
Legislature. There can be no doubt that the Legislature had 
only in mind the veterans of the civil war. It is not conceivable 
that they were legislating for the future. But, even if the earlier 
legislation left this in doubt, all ambiguity is removed by the 
later statutes referring to the same subject-matter, enlarging the 
benefits of the earlier statutes, and being in effect a continu- 
ance of previous legislation. These expressly defined the word 
"veteran" in such a way as to make it clear that all the legisla- 
tion is, and is intended to be, only for the benefit of the veterans 
of the civil war. For example, St. 1884, c. 320, § 14, cl. 6, speaks 
of persons "who served in the army or navy," etc., and the 
statute of 1896 of "veterans." If the first statute referred to 
one class of persons and the last statute to another, the result 
would be an absurdity which I cannot believe the Legislature 
could have intended, 

I am of opinion, therefore, that no part of the civil service 
legislation relating to soldiers and sailors is to be construed to 
mean those who since its passage have served in the army or 
navy in time of war, but that its provisions are limited to those 
who served in the army or navy during the civil war, and were 
honorably discharged therefrom. 

This conclusion receives much confirmation from the fact that 
the General Court of 1899 enacted a statute extending the ex- 



I 



HOSEA M. IvNOWLTOX, ATTORNEY-GENERAL. 189 

emptions in favor of veterans in the civil service statutes to 
those who served in the Spanish war. This act was vetoed by 
the Governor, and his veto was sustained by the Legislature. 
Another bill to the same end has recently been rejected by the 
Legislature now in session. While these proceedings do not 
authoritatively settle the true construction of the earlier statutes, 
they are of importance, as strengthening the view that all the 
provisions of the civil service acts relating to the subjects had 
to do only with the veterans of the civil war. 



Parole Law — Convict — Successive Sentences. 

A convict who has received successive sentences, imposed either prior to the expi- 
ration of, or previous to his commitment upon, his first sentence, is not enti- 
tled to the provisions of St. 1894, c. 440. 

Your letter of May 10 submits two questions touching the Tothecom- 

c m -I r-,r\ 1 J ir\ • niissioners of 

construction ot bt. 1894, c. 440, to wit: — prisons. 

"First. — Is a prisoner who has received two sentences, each ^ay 29 . 
of which was imposed prior to the expiration of his first sentence, 
entitled to the provisions of this act? 

"Second. — Is a prisoner who has received two sentences, each 
of which was imposed previous to his commitment upon his first 
sentence, entitled to the provisions of this act?" 

The statute in question has been amended, and the law as 
amended appears in St. 1897, c. 206, as follows: "When it shall 
appear to the commissioners of prisons that any prisoner 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 sentence, upon such terms and con- 
ditions as they deem best, and they may revoke said permit at 
any time previous to its expiration." 

In a letter submitted to the Prison Commissioners, dated April 
4, 1896 (1 Op. Atty.-Gen., 324), I stated it as my opinion that 
the "statute is inapplicable to the first sentence, taken by itself. 
It cannot be presumed that the Legislature intended that a 
prisoner should be at large, engaged in the business of reformation, 



VJO 



OPINIONS OF THE ATTORNEY-GENERAL. 



for a period of years, at the expiration of which he should return 
to enter upon a second sentence." 

The statute is in terms inapphcable to the second sentence, for 
at the time he is serving his second sentence it cannot be said 
that he is held in state prison upon his first sentence. 

I beg to repeat the suggestions contained in my former opinion, 
to wit, that ''the matter of successive sentences seems not to 
have been considered in this law," and that "there seems to 
be need of further legislation upon the subject." 



To the Board 
of Savings 
Bank Com- 
missioners. 

1900 
May 21). 



Trust Company — Loan to Single Individual. 

Under St. 1888, c. 413, § 17, a trust company may not loan to one indi\'idual, 
whether a person, firm or corporation, more than twenty per cent, of the 
capital stock of the company, even though a portion or the whole of the in- 
debtedness is secured by pledge of marketable collateral. 

St. 1888, c. 413, § 17, is as follows: "The total liabilities to 
such corporation of any person, firm or corporation, other than 
cities or towns, for money borrowed, including in the liabilities 
of a company or firm the liabilities of its several members, shall 
at no time exceed one-fifth part of such amount of the capital 
stock of this corporation as is actually paid up. But the discount 
of bills of exchange drawn in good faith against actually existing 
values, and the discount of commercial or business paper actually 
owned by the person negotiating the same, shall not be consid- 
ered as money borrowed." 

I am of the opinion that, in view of the prohibition of the sec- 
tion quoted, a trust company may not loan to one individual 
more than twenty per cent, of the capital stock of the company. 
Even if a portion or the whole of the indebtedness is secured by 
pledge of marketable collateral, it is still a liability of the person 
signing the note, within the meaning of the section. 

A loan secured by a pledge of marketable collateral is not 
within the exceptions of the section. It is not a discount of a 
bill of exchange drawn against actual existing values, or a dis- 
count of commercial paper owned by the person negotiating 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 191 

the same. Both these exceptions are well understood in com- 
mercial affairs, and neither of them includes ordinary loans upon 
collateral security. 

State Board of Agriculture — Tree Wardens — Desig- 
nation OF Public Shade Trees. 

St. 1899, c. 330, a codification of the laws relative to the preservation of shade 
trees, which makes it obligatory upon towns to elect a tree warden, super- 
sedes the authority over such trees conferred by earlier statutes upon select- 
men or other town officers. 

Since c. 330, defines public shade trees as "all shade trees within the limits of any 
public way," it has the effect to relieve the Board of Agriculture from the 
obligation, imposed by St. 1890, c. 196, as amended by St. 1891, c. 49, to 
supply M-spikes to towns for the purpose of designating such shade trees as 
are to be considered public shade trees. 

St. 1899, c. 330, is entitled "An Act to codify and amend the to the state 

• I- ) ) 1 • 1 f 1 Board of 

laws relative to the preservation of trees. The act itself does Agriculture, 
not follow the older and better custom of specifically repealing Junea. 
the statutes which are superseded by its provisions, nor even 
the more recent method of repealing all acts inconsistent there- 
with. But the title of an act may assist in its interpretation; 
and I have no doubt that the intention of the Legislature is 
sufficiently expressed, both in the body of the act and in the 
title, to enact a new and general law relating to shade trees in 
towns and thereby to supersede all previous statutes, unless they 
relate to some matter clearly not covered by the codifying 
statute. 

The statute in question makes it obligatory upon towns to 
elect a tree warden, and authorizes him and his deputies to have 
the entire charge of public shade trees within the limits of the 
town. It must be taken, therefore, to supersede the authority 
conferred by earlier statutes upon selectmen or other town 
officers. It cannot be supposed that the law intended conflicting 
jurisdiction. 

Referring specifically to the statutes mentioned in your letter : 
St. 1893, c. 78, which is an act relating to the extermination of 
insect pests, is re-enacted in § 4 of the statute of 1899. St. 1893, 
c. 403, relating to and prohibiting the affixing of posters, labels, 



192 OPINIONS OF THE ATTORNEY-GENERAL. 

etc., upon public shade trees, is superseded by §§ 5, 6, and 7 of 
the later statute. St; 1893, c. 423, which is a general act relative 
to the powers and duties of town officers, provides, in the section 
relating to the duties of the superintendent of streets, that he 
shall have full charge of the care and preservation of shade 
trees. This is, of course, repealed by the codifying statute in 
question. St. 1896, c. 190, provided for the election of a tree 
warden. This obviously is no longer in force since the enact- 
ment of St. 1899, c. 330. The same may be said of St. 1897, 
c. 428, relating to the powers of tree wardens and park com- 
missioners in towns. 

On the other hand. Pub. Sts., c. 52, § 10, as amended by St. 
1885, c. 123, § 2, relates only to the cutting down of such trees 
and shrubbery, etc., as interfere with public travel. This is 
not affected by the statute of 1899, except so far as it concerns 
shade trees. 

My attention has also been called to St. 1897, c. 254, entitled 
"An Act to provide for the further protection of trees and for 
the prevention of fires in woodlands." This act establishes the 
office of forester in towns accepting its provisions, and makes it 
his duty, among other things, to have charge of all trees wdthin 
the limits of a public highway. In respect to such duties the act 
is superseded by the codification of 1899. The only portion of the 
act thus affected is the last part of § 1 and the whole of § 2. The 
codification does not repeal the statute in other respects. 

Your letter further inquires as to the effect of the codifying 
statute in question upon St. 1890, c. 196. This act authorizes the 
mayor and aldermen of cities and the selectmen of towns to desig- 
nate and preserve trees within the limits of the highways for the 
purposes of ornament and shade. It further requires the officers 
named to drive into the trees so designated a spike with a head 
with the letter M plainly impressed upon it. The act also pro- 
vides a penalty for interference with the spikes so affixed. 

This statute is still in force as to cities, for the statute of 1899 
refers only to towns. But I am of opinion that it is no longer 
applicable to towns. St. 1899, § 2, expressly defines shade trees 
as follows: "All shade trees within the limits of any public way 



IIOSEA M. KNOWLTON, ATTORNEY-GENERAL. 193 

shall be deemed public shade trees." There is, therefore, no 
further need of designating shade trees by any such distin- 
guishing mark; and, under the powers granted to the tree war- 
dens, the selectmen have no longer any right of interference 
or control. I am of opinion, therefore, that you are not called 
upon to furnish M-spikes to towns, but that as to cities the law 
remains unaffected. 



Board of Harbor and Land Commissioners — West's 
Beach Corporation — License to construct Pier — 
Ultra Vires Act. 

The Board of Harbor and Land Commissioners may grant to the West's Beach 
Corporation a hcense to construct a pier on and over its beach into tide water, 
for the purpose of increasing the landing faciUties for boats. 

Wlietlier the construction of such wharf, as proposed by the corporation, would be 
tdtra vires, is not a question within the scope of tlie duties of the Board. 

There would seem to be no reason, however, why the corporation may not, if 
licensed by the Board, construct such wharf, its object being merely to facili- 
tate the members of the corporation in their lawful occupation of the beach. 

West's Beach Corporation was incorporated by St. 1852, Jf'nartoflnd 
c. 157. The object of its formation was to enable the holders nit8°*?oneJ^". 
of common rights on West's Beach to preserve their rights and june u. 
prevent encroachment by others. Section 2 of said act provided 
that: "The said corporation are hereby authorized to take and 
hold all that portion of the sea-shore, beach and flats at Beverly 
farms in said town of Beverly, which is included within the 
following limits;" a description of the territory by metes and 
bounds follows. Section 3 is as follows: ''The members of said 
corporation may use and occupy said described portion of sea- 
shore, beach, and flats, for the purpose of gathering drift-stuff and 
sea-weed, and of boating and bathing, as said premises have here- 
tofore been used and occupied by them and their predecessors." 

The charter was amended by St. 1866, c. 131, but not in a way 
to affect the question submitted by your letter ; which is, whether 
your Board has the right to grant to the corporation a license to 
construct a pier on and over its beach into tide water, for the 
purpose of increasing its landing facilities for boats. 



194 



OPINIONS OF THE ATTORNEY-GENERAL. 



Your Board has authority to grant such a hcense under Pub. 
Sts., c. 19, § 9, and the provisions of that section would appear to 
dispose of the question submitted. But I understand, from 
statements, by members of your Board, that the real question is, 
whether the construction of a wharf, as proposed by the corpora- 
tion, would be beyond the powers and privileges granted to it. 

I doubt very much whether the question of ultra vires as to the 
corporation is for the consideration of your Board. It touches the 
construction of its charter, and can properly be raised only by 
the sovereign granting the charter. The scope of the duties of 
your Board does not embrace such questions. 

However, I have no hesitation in saying that I see no reason 
why, if duly licensed by your Board, the corporation may not 
build the wharf proposed; its object being merely to facilitate the 
purpose of its incorporation, by affording better facilities of land- 
ing from row boats, sail boats and such craft as the members of 
the corporation may use in their lawful occupation of the beach. 



To the State 
Board of 
Charity. 

1900 
June 14. 



Member of Legislature — Eligibility for Other Office — 
Inspector of Almshouses. 

The provisions of c. 2, § 33, of the PubUc Statutes, do not prevent the State Board 
of Charity from appointing a member of the Legislature as its agent to in- 
spect almshouses, in accordance with St. 1900, c. 215, since such office is not 
a public office within the meaning of that section. 

Pub. Sts., c. 2, § 33, is as follows: ''No member of the senate 
or house shall, during the term for which he is elected, be eligible 
to any office under the authority of the commonwealth created 
during such term, except an office to be filled by vote of the 
people." 

Chapter 215 of the Acts of the present year authorizes the 
State Board of Charity to visit and inspect all almshouses main- 
tained by the several cities and towns in the Commonwealth, 
and to report annually upon their condition and management, 
with such suggestions and recommendations as the Board may 
deem expedient. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 195 

Acting under the authority of Pub. Sts., c. 79, § 2, which 
authorizes the Board to assign any of its powers or duties to 
agents appointed for the purpose, and to execute any of its 
functions by such agents, I understand that your Board desires to 
appoint a member of the General Court of this year to be inspector 
of ahnshouses, — an office created by the Board, in consequence 
of the enactment of the statute of this year. 

The statute of this year creates no new office. It merely im- 
poses additional duties upon public officers already in the service 
of the Commonwealth. Those officers had already been author- 
ized by a previous statute to employ agents to assist them in the 
performance of their duties, but the agents so employed are not 
public officers, within the meaning of that term as used in the 
Public Statutes. Your letter states that the person to be ap- 
pointed will be inspector of almshouses. There is, however, no 
such office known to the statutes; it is an office created and 
named by the Board. 

I am of opinion, therefore, that the provisions of the Public 
Statutes above quoted do not prevent the Board from appointing 
a member of the present Legislature its agent to inspect alms- 
houses, under the provisions of St. 1900, c, 215. 



State Highway — Cost of Maintenance — Constitutional 
Law — Impairment of Contract. 

The provision of St. 1893, c. 476, that the maintenance of State highways shall be 
paid for by the Commonwealth, and not by the towns through which the 
ways are located, does not constitute a contract to that effect between the 
Commonwealth and such towns, and it is competent for a succeeding Legis- 
lature to change the burden of maintaining such highways in such manner 
as it sees fit. 

I have the honor to acknowledge the receipt of a copy of to the House 

!• -r» • T '^^ Representa- 

an order adopted by the House of Representatives June 19, re- tives. 
quiring the opinion of the Attorney-General upon the question Junesi- 
whether the Commonwealth is legally bound to maintain and 
repair State highways taken as such under the provisions of 
c. 476 of the Acts of the year 1893, and whether the provisions of 



196 OPINIONS OF THE ATTORNEY-GENERAL. 

House Bill No. 1399, relative to the repair of State highways, 
would, if the bill became a law, be void or illegal as being in vio- 
lation of any contract or obligation entered into or assumed by 
the Commonwealth for the maintenance and repair of State 
highways taken as such under the provisions of said c. 476 or 
any amendment thereof. 

Both questions depend upon the same considerations and 
can be conveniently considered together. The construction and 
maintenance of highways are matters of public concern, to be 
provided for by taxation in such manner under the Constitution 
as the General Court may from time to time provide. The 
Legislature of 1893, by the enactment of the statutes relating to 
State highways, provided that as to such ways the burden of 
their construction and maintenance should be paid for by the 
Commonwealth, and not by the towns in which the ways are 
located. But no contract was thereby created between the Com- 
monwealth and the towns petitioning for the location of State 
highways under the provisions of the act, and it is competent for 
a succeeding Legislature to change the burden of support of 
State highways in such manner as it may see fit. There are no 
contractual relations in the matter between the Commonwealth 
and its various governmental divisions. It follows, of course, 
that the provisions of the proposed bill are not unconstitutional. 



Boston & Albany Railroad Company — Lease — Issue 

OF Stock. 

So long as the proposed lease of the Boston & Albany Railroad Company may 
remain in force, there is no authority in any person or corporation to issue 
the balance of stock provided for in St. 1889, c. 163. 

To^eHouse^ I have the honor to acknowledge the receipt of a copy of 
"\^^,f) the order adopted by the honorable House of Representatives, 

'^'^- June 25, as follows, to wit: — 

"Ordered, That the Attorney-General be and hereby is re- 
quested to furnish the House of Representatives with an opinion 
as to who, if anybody, will have the right to issue the balance 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 197 

of five millions of the ten millions of stock authorized by chapter 
one hundred and sixty-three of the acts of the year eighteen 
hundred and eighty-nine, being 'An Act to authorize the Boston 
& Albany Railroad Company to increase its capital stock,' if 
the Boston & Albany Railroad is leased to the New York Central 
& Hudson River Railroad Company; and if it may be issued 
he will give an opinion as to the conditions, regulations or terms 
under which such an issue may be made." 

The balance of stock authorized by the act referred to is to be 
issued as specified in the act: ''for the improvement of the align- 
ment of its road ; for the construction of additional tracks ; for 
the purchase of land ; for the separation of level crossings of high- 
ways and town ways; for the construction of new stations, and 
for the acquirement of private ways." 

Under the lease, however, all these matters are specially pro- 
vided for. All permanent improvements, the purchase of land, 
and other like matters, are to be paid for by the issuance of bonds 
of the lessor corporation, the interest on which bonds is to be 
paid by the lessee ; and there is no authority in the lease for the 
issuing of shares by the lessor corporation. The lessor corpora- 
tion, therefore, has no further occasion to issue shares under 
this act, and in my opinion its authority so to do is superseded 
by the provisions of the lease into which, by the assent of the 
Commonwealth, it has entered. 

It is clear that the lessee corporation has no authority under 
the lease to issue stock of the lessor corporation. Although the 
lease purports to assign the " franchises" of the lessor, this cannot 
in my judgment be taken to include the franchise to issue addi- 
tional stock. Such a franchise is inherently one belonging to the 
corporation alone, which it cannot assign without destroying its 
corporate integrity. 

I am of opinion, therefore, that there is no authority in any 
person or corporation to issue the balance of stock authorized by 
St. 1889, c. 163, so long as the lease may remain in force. 



198 OPINIONS OF THE ATTORNEY-GENERAL. 



Boston & Albany Railroad Company — Legislature — 
Amendment of Lease — Consent of Commonwealth — 
Violation of Conditions — Revocation — Lessee sub- 
ject TO General Laws — Special Burdens — Contract 
— Interstate Freight Traffic — Constitutional Law. 

Since the lease of the Boston & Albany Railroad Company is in form a contract 
between the parties, the Legislature cannot, by enactment, amend it. 

The consent of the Commonwealth to such lease is in the proposed statute condi- 
tioned not upon the performance by the lessee of the obligations imposed, 
but upon the obedience of the lessee to a decree of the Supreme Judicial 
Court reqviiring such performance, which could be made only upon a finding 
that the lessee had assumed the duty for the neglect of which complaint is 
brought. No such duty having been assumed by the lessee, by agreement 
or otherwise, under this bill, the court would be without authority to decree 
its performance, and consequently the Legislature could not revoke its consent. 

If the lessee, a foreign corporation, by the consent of the Commonwealth enters 
upon the exercise of a franchise within the jurisdiction of the Commonwealth, 
it subjects itself to all such general laws as the Legislature may constitu- 
tionally enact regulating the conduct of such franchise. 

With regard to independent enactments, involving special burdens, the Legisla- 
ture may impose conditions which accomplish the desired result if a contract 
for their performance is entered into by the lessee, either expressly or by 
implication. 

If the lessee elects, under the conditional consent of the Commonwealth, to become 
bound under the lease, it also becomes bound by implication to perform the 
conditions upon which such consent is given. 

A regulation by the Commonwealth of rates of freight from points without to points 
in and through the State is unconstitutional and void. 

A private person, however, may make contracts with a railroad corporation, with 
reference to freight, which are not in violation of any act of Congress; and it 
would seem that the Commonwealth as a party would have the same right 
that a private individual would have to make a contract relating to interstate 
freight rates, subject to the regulations of Congress upon the subject. 

To the House J ^ave the honor to acknowledge the receipt of copies of two 

or Kepresfuta- '-' ' ^ 

"iw)o orders adopted by the honorable House of Representatives on 

^^!!!L!" June 27 and June 28, respectively, submitting certain ques- 

tions touching the construction of the bill (Senate, No. 226, 
as amended) giving the consent of the Commonwealth to the 
lease of the Boston & Albany Railroad, and to reply thereto as 
follows : — 

First (order of June 27). — "Are the changes which Senate 
Bill No. 226 has made in the original House Bill No. 36 to be con- 
sidered in the nature of amendments to the lease which has been 
entered into between the directors of the Boston & Albany 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 199 

Railroad and the New York Central & Hudson River Rail- 
road?" 

The proposed lease is in form a contract between two railway 
corporations. Such a contract cannot be amended except by 
further agreement between the parties. The Legislature, there- 
fore, cannot by enactment amend the lease. 

Second (order of June 27). — ''Do all the provisions of Senate 
Bill No. 226 constitute conditions of the lease, so that a viola- 
tion of any part of the proposed statute, if adopted by the 
Legislature, would invalidate the lease itself?" 

By the first section of the bill the consent of the Common- 
wealth is given in absolute terms to the proposed lease. How 
far this consent is qualified by succeeding sections will be con- 
sidered later. In § 2 the Commonwealth expressly reserves all 
rights of control over the leased road which it has or may have 
by general laws, or under the charter of the Boston & Albany 
Railroad. This section is without doubt merely declaratory 
of the rights of sovereignty which the Commonwealth has over 
all franchises granted and exercised by its authority within its 
jurisdiction. Sections 3 to 6 inclusive undertake to impose 
certain specific duties upon the lessee. They are in form independ- 
ent enactments, and are not expressed to be conditions upon 
which the lease is granted. Some of them without doubt are 
merely declaratory of duties which would be incumbent upon 
the lessee, whether expressly so enacted or not. But others of 
them, notably § 3, relating to interstate freights, and § 5, re- 
quiring the expenditure of a large sum of money in East Boston, 
impose burdens upon the lessee with which, in my opinion, the 
lessee cannot be charged without its consent. 

It is obvious that the framers of the bill had doubts of the 
right of the Legislature to impose these duties upon the lessee as 
independent enactments, and §§ 8, 9 and 10 appear to have been 
drawn for the purpose of securing the performance of the duties 
so imposed. The scheme of these sections is, briefly, as follows: 
By §§ 8 and 9 the Attorney-General is authorized, when advised 
by the Railroad Commissioners that these provisions, or any 
other of those contained in the bill, have been violated by the 
lessee, to institute legal proceedings to compel the observance of 



200 OPINIONS OF THE ATTORNEY-GENERAL. 

them; and the Supreme Judicial Court of the Commonwealth is 
given jurisdiction to entertain such proceedings and to enforce 
the performance by the lessee of the provisions of the bill. 
Section 10 thereupon provides as follows: "The consent and 
authority herein given by the Commonwealth is given upon 
condition that the final decrees and mandates of the supreme 
judicial court of this Commonwealth provided for in the fore- 
going sections of this act shall be complied with and observed 
by the lessee ; and said condition shall be enforceable as follows 
and not otherwise, namely: upon any failure so to comply with 
and observe said decrees and mandates, notwithstanding any 
prior failure to observe and comply with any decree or mandate 
aforesaid, the consent and authority herein given may be re- 
voked and annulled at any time by the general court." 

If, therefore, the duties required of the lessee by the bill are 
not performed, two remedies at least are attempted to be given 
to the Commonwealth: one is to enforce performance of such 
duties by decree of the Supreme Judicial Court; the other is to 
revoke the consent given to the lease by the bill upon failure to 
obey such decree of the court. If the court has power to enter 
a decree for the performance of these provisions (omitting for 
the present any question of the right of removal of the proceed- 
ings to the Federal Court by the lessee, which will be considered 
later), the rights of the Commonwealth would seem to be suffi- 
ciently preserved. But the right of the court to enter such a 
decree must be based not only upon the provisions of the bill 
purporting to give it jurisdiction over the lessee, but also upon 
. the fact, if it be a fact, that the lessee is bound under the terms 
of the bill or otherwise to perform the duties imposed by it. 
The court may, under the act, entertain jurisdiction of the 
Attorney-General's suit, and may by proper process hale the 
lessee before it; but the lessee will then have the right to claim 
that it never agreed to perform the duty the neglect of which 
it is charged with, and, if the court so holds, no decree can be 
entered, and the whole proceeding fails. 

The vital question, therefore, is, whether the lessee is to be 
deemed to have consented to and to have agreed to perform the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 201 

obligations imposed upon it in the bill by entering upon the . 
demised premises under the lease. 

It is, to say the least, doubtful whether in its present form the 
bill can be so construed. It is to be observed that the consent of 
the Commonwealth is conditioned not upon the performance of 
the obligations imposed, but upon the obedience to a decree 
of the Supreme Judicial Court requiring such performance. As 
I have already remarked, the consent of the Commonwealth is 
given in absolute terms, except as to this sole condition, and 
the duties and obligations imposed upon the lessee are contained 
in enactments separate and independent, though parts of the 
same bill. The single condition attached to the consent, namely, 
that the lessee shall obey the orders of the Supreme Judicial 
Court, is very far from being equivalent to a condition that the 
lessee shall obey the provisions of the bill. If the latter be the 
intent of the Legislature, it can easily be expressed in unam- 
biguous language, rather than in terms which seem even to 
avoid indicating any such intent. 

I am of opinion, therefore, replying to the second question of 
the honorable House of Representatives, that a violation of any 
part of the proposed statute would not invalidate the lease itself. 
Briefly, to restate my reasons therefor, they are: that under its 
terms the lease could not be invalidated by a revocation of the 
consent of the Commonwealth, excepting upon non-performance 
by the lessee of a decree requiring such performance made by the 
Supreme Judicial Court; and that no such decree could be made, 
because the court would have no power to make it except upon a 
finding that the lessee had assumed the duty for the neglect of 
which the complaint was brought. No such duty having been 
assumed by the lessee, by agreement or otherwise, under this 
bill, the court would be without authority to decree its per- 
formance, and, consequently, the Legislature could not revoke 
its consent. 

Although the matter is beyond the strict scope of the questions 
submitted, I deem it proper to call the attention of the honorable 
House of Representatives to another serious defect in the scheme 
of the bill as it stands. The right of revocation by the Legis- 



202 OPINIONS OF THE ATTORNEY-GENERAL. 

lature is reserved only upon non-performance of a decree of the 
Supreme Judicial Court of this Commonwealth. The lessee, 
however, is a foreign corporation. Under the statutes of the 
United States it has the undoubted right to remove any civil 
proceeding brought against it to the federal courts. After such 
removal the power of the Supreme Judicial Court of the Com- 
monwealth to make a decree would be taken away, and a decree 
entered in the Federal Court would not give to the Common- 
wealth the right of revocation, because such right by the terms 
of the bill is only created by disobedience to a decree of the State 
court. This, however, is a matter which can be taken care of 
by an amendment to the bill. 

Assuming that the Legislature desires to bind the lessee to the 
performance of the obligations contained in the bill, it may be 
desirable for the Attorney-General to submit his views as to how 
such a result may be accomplished. The lessee is a foreign cor- 
poration. If by the consent of the Commonwealth it enters upon 
the exercise of a franchise, like the operation of a railway, within 
the jurisdiction of the Commonwealth, it undoubtedly subjects 
itself to all such general laws as the Legislature may constitu- 
tionally enact regulating the conduct of such franchise. But it 
is doubtful, to say the least, whether independent enactments, 
involving special burdens, the right to impose which does not 
arise from the police power of the Commonwealth, — such, for 
instance, as the provision regulating interstate freight rates, or 
the provision requiring the expenditure of a large sum of money 
in the construction of docks and terminal facilities, — are within 
the jurisdiction of the Commonwealth. 

But, whether they are or not, the desired result is surely accom- 
plished if a contract for their performance be entered into by the 
lessee. If, upon sufficient consideration, the lessee agrees with 
the Commonwealth that it will perform these duties, such an 
agreement, whether made in express terms or arising by implica- 
tion from circumstances (not considering at this time any ques- 
tions arising under the commerce laws of the United States 
Constitution), may be enforced in any court having jurisdiction 
of the parties and of the subject-matter. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 203 

How may such a contract be made? The most obvious and 
certain method is to require the express assent of the lessee to the 
conditions imposed by the Commonwealth. So far as the condi- 
tions imposed are constitutional, such an expressed assent would 
bind the lessee beyond peradventure ; and it is the clear duty of 
counsel to discharge himself of responsibility for results by advis- 
ing a client, who has a choice of methods, to select that which 
leaves no room for doubt. 

But it is also incumbent upon me to say that a method less cer- 
tain, though probably adecpate to bind the lessee, would be so to 
frame the bill as to create an implied contract on the part of the 
lessee by the act of entry upon the demised premises. 

The parties have seen fit to make the lease operative only when 
the Commonwealth has ratified it, and until such ratification 
neither party is bound by any terms of the contract, and if such 
ratification is withheld there is no contract. And if the ratifica- 
tion be conditioned upon terms which either party is not willing 
to accept, the lease is not binding upon such party, and may be 
treated as no lease. The Commonwealth has granted to the 
Boston & Albany Railroad Company a valuable franchise. It 
was a franchise, however, which the corporation has no right to 
surrender or assign. Permission by the Commonwealth to trans- 
fer to another corporation the franchise so granted is in itself a 
franchise valuable to the party receiving it, and for the granting 
of which the Commonwealth may properly demand and receive 
compensation. That the Commonwealth may barter its fran- 
chises is well settled. An illustration of this proposition is to be 
found in the statutes relating to the granting of franchises to street 
railway corporations, under which terms, in the discretion of the 
municipal body, acting as the agent of the Commonwealth, may 
be imposed as a condition of the grant. The Commonwealth, 
therefore, has the right to impose upon the parties, or either of 
them, seeking to have the franchise transferred, such terms and 
conditions as it may see fit to impose ; and it may provide that 
its consent to such transfer shall be conditioned only upon the 
acceptance of such conditions by the parties, or by the party 
upon whom the burden of such conditions is imposed, and its 



204 OPINIONS OF THE ATT0RNP:Y-GENERAL. 

agreement to observe and perform them. Express assent, how- 
ever, is not always necessary. It may be implied from acts. If 
the consent of the Commonwealth is clearly expressed to be upon 
condition of the performance of certain specific duties by the 
lessee, and it is further provided in express terms in the act grant- 
ing the consent that the entry by the lessee upon the demised 
premises and into the enjoyment of the franchise so granted shall 
be taken and deemed to be an assent to the conditions imposed 
and an agreement to perform them, and thereupon the lessee 
does so enter, I am of the opinion that it thereby agrees by impli- 
cation to perform the duties so imposed, and that such agreement 
may be enforced in the courts. 

If the consent of the Commonwealth is qualified by conditions 
which must be accepted before the consent becomes effectual the 
lessee may thereupon elect to treat the lease as void. But if it 
elects under such consent to become bound by the lease, it also 
becomes bound by implication, in my opinion, to perform the 
conditions upon which such consent was given. A new contract 
in addition to the contract of the lease is thus made between the 
Commonwealth and the lessee, the consideration of which is the 
consent by the Commonwealth to the transfer of the franchise 
theretofore enjoyed by the lessor. 

Third (order of June 27). — "Would the power of the Common- 
wealth to enforce against a foreign corporation, like the New 
York Central & Hudson River Railroad Company, the provi- 
sions of the act authorizing the lease, be as complete as if the 
lessee were a domestic corporation?" 

Inasmuch as, in my reply to the second question as above sub- 
mitted, I have advised the honorable House of Representatives 
that what are probably regarded as the most vital of the })rovi- 
sions of the bill as it stands cannot be enforced at all against the 
lessee, it seems unnecessary to reply specially to this question. 

The order of June 28 requires the opinion of the Attorney-Gen- 
eral upon the question, substantially, whether § 3 of the bill in 
question is in violation of Art. 1, § 8, of the Constitution of the 
United States, granting to Congress the power to regulate com- 
merce among the several States. It is well settled that under this 
clause of the Federal Constitution the sole power to regulate inter- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 205 

state freight rates is in the Congress of the United States, and 
that it is of no consequence whether in any given case Congress 
has seen fit to exercise its power, or not. Failure to regulate rates 
is taken as an indication that Congress determines that there 
shall be no such regulation, and whether there has been such 
regulation or not by Congress, the State is powerless to pass any 
laws upon the subject. I am of the opinion, therefore, that § 3 of 
the Senate bill, considered as a regulation by the State of Massa- 
chusetts of the rates of freight from points without the State to 
points in or through the State, is unconstitutional and void, and 
cannot be enforced. 

If, however, a contract, express or implied, is made between 
the Commonwealth and the lessee relating to the rates of freight, 
a very different question arises, and one upon which much can be 
said upon both sides. If such a provision be made, not as a legis- 
lative enactment but as one of the terms upon which the consent 
of the Commonwealth is granted, and such terms are assented to 
by the lessee, the result is a contract between the Commonwealth 
and lessee, under which the latter is limited in the amount it may 
charge for freights of the description named in the section. As- 
suming that such a contract were made, and assuming, further, 
that its provisions were so drawn as to leave the lessee subject to 
any regulations which might be made upon the subject by Con- 
gress, would such a contract be void? 

With some hesitation I am inclined to the opinion that the 
Commonwealth as a party has the same right to make a contract 
relating to interstate freight rates, subject always to any regula- 
tions upon the subject that may be made by Congress, as a private 
individual might make with the same railroad. Obviously, the 
provisions of the Federal Constitution are not to be taken as 
restraining the powTr of the railroad corporation to make con- 
tracts with reference to freight that are not in violation of the 
provisions of any act of Congress. I see no sound reason to 
distinguish between such contracts with private persons and a 
contract upon sufficient consideration between the State and a 
railroad corporation. Such a contract would not be a legislative 
enactment, deriving its authority from the sovereignty of the 
Commonwealth, but would be the act of a State as a party part- 



206 OPINIONS OF THE ATTORNEY-GENERAL. 

ing with rights, and receiving the agreement of the raih-oad in 
consideration therefor. The question, however, in view of the 
decisions of the Supreme Court of the United States, is not one 
free from doubt, and can only be finally determined when directly 
presented to that tribunal. 



Boston & Albany Railroad Company — Lease — Consent 
OF Commonwealth — Conditions — Acceptance by Les- 
see — Modification of Lease — Foreign Corporation 
— Financial Affairs. 

A pro\'ision in the proposed statute to ratify the lease of the Boston & Albany 
Railroad Company, stipulating that the consent of the Commonwealth is 
not to take effect until the conditions imposed by the Commonwealth are 
accepted by the lessee by a corporate vote, is the most effectual way to insure 
the performance of the conditions by the lessee, and to reserve the right of 
revocation by the Commonwealth upon the failure of such performance. 

The lease itself cannot be cancelled, amended or modified by the parties without 
the further consent of the Commonwealth. 

The lessee, being a foreign corporation, is subject to the paramount authority of 
the State granting its charter, and its financial affairs cannot be made sub- 
ject to direct legislation by this Commonwealth. 

o°Re*^re8eifta "'■ ^^^^ ^^e houor to acknowledge the receipt of a copy of an 
%^/^ order adopted by the honorable House of Representatives on the 

"^.^Ll' fifth day of July inst., requiring the opinion of the Attorney- 

General upon certain questions therein submitted, and to reply 
thereto as f ollow^s, to wit : — 

First. — ''Would the passage of the bill now printed as House 
Document No. 1456 insure the permanent right of the General 
Court to terminate the lease of the Boston & Albany Railroad to 
the New York Central & Hudson River Railroad Company, if 
any provision in said Document No. 1456 were violated?" 

Second. — "If said House Document No. 1456 does not insure 
said rights to the General Court in all of its provisions, jilease 
name those portions of the proposed law whose violation would 
not cause a termination of the lease." 

Sixth. — "Can the lease of the Boston & Albany Railroad to 
the New York Central & Hudson River Railroad Company be 
now ratified under House Document No. 1456, without the sub- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 207 

sequent votes of the stockholders of the two railroad corporations 
hereinbefore mentioned accepting all of the provisions of said 
House Document No. 1456?" 

Seventh. — "If it is not necessary to have the stockholders' 
votes of both railroad companies upon all of the provisions of 
House Bill No. 1456, please mention those provisions of the bill 
upon which such votes of acceptance upon the part of the stock- 
holders of either railroad company would not be necessary." 

The foregoing questions were fully considered and answered, so 
far as I am able to answer them, in an opinion which Ihad the 
honor to submit to the honorable House of Representatives on 
the second day of July inst., but, for the convenience of the 
House, I now restate the conclusions therein submitted. 

A provision in the bill, stipulating that the consent of the Com- 
monwealth should not take effect until the conditions imposed by 
the Commonwealth be accepted by the lessee by a corporate vote, 
insures the performance of the conditions by the lessee, and re- 
serves the right of revocation by the Commonwealth upon the 
failure of such performance in the most effectual way in which 
such result can be attained. 

The bill as it stands declares that such acceptance by the lessee 
is to be deemed to have been made by entry upon the demised 
premises and enjoyment of the franchise assigned to it. Such an 
acceptance, in my opinion, is binding upon the lessee. But I am 
not prepared to say that the rights of the Commonwealth are 
insured thereby so effectually as by a corporate vote. No counsel 
can assure his client that the court of last resort will determine 
questions of law in accordance with his opinions. His duty is 
discharged when he points out the various methods in which the 
desired result can be attained, with the contingencies that arise 
as to each method, leaving it to the client to determine which 
method shall be employed. 

These observations apply alike to all the provisions of House 
Bill No. 1456, excepting that, as I have already had occasion to 
inform the honorable House of Representatives, I am of opinion 
that §§7 and 8, and probably § 5, are binding upon the parties to 
the lease, whether accepted by them or not. If they are not so 



208 OPINIONS OF THE ATTORNEY-GENERAL. 

binding, they stand upon the same footing as the other provi- 
sions of the bill. 

Third. — " Does the tenth provision of the lease printed as 
Senate Document No. 236, if once ratified by the General Court, ' 
permit the Boston & Albany Railroad Company and the New 
York Central & Hudson River Railroad Company to make further 
modifications and amendments to the lease without the necessity 
of further ratification of the General Court?" 

Fourth. — "Are there any provisions of the lease, as printed in 
Senate Document No. 236, which would be equivalent to a con- 
sent on the part of the Commonwealth to future modifications of 
the lease without further legislation, or to the release of the Bos- 
ton & Albany Railroad Company from any of the restrictions of 
Massachusetts laws to which the railroad is now subject?" 

The foregoing questions are fully considered and answered in 
the opinion submitted to the honorable House of Representatives, 
March 16, 1900. In that communication I stated it as my 
opinion, to which I still adhere, that the lease cannot be cancelled, 
amended or modified by the parties without the further consent 
of the Commonwealth. The same observations, however, which 
I have already made hereinbefore as to the first and second ques- 
tions, apply with equal force to these questions. All doubt upon 
the subject can be removed by a provision in the bill prohibiting 
such cancellation, modification or amendment, which provision 
is made a condition upon which the consent of the Common- 
wealth is granted, with the further provision that such condition 
be accepted by a vote of the corporation. 

Fifth. — "Do the words 'so far as the operation of said rail- 
road is concerned,' in § 5 of House Document No. 1456, hmit the 
application of that section to the operating department of the 
Boston & Albany Railroad, so that the section may not apply to 
the financial affairs of the lessor?" 

None of the provisions of the lease or of the proposed bill affect 
in any way the financial affairs of the lessor. They remain sub- 
ject to the general provisions of law apphcable to domestic rail- 
road corporations, and to whatever special provisions, if any, are 
in force applicable to the lessor. 



I 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 209 

I cannot believe, however, that it was the intention of the hon- 
orable House of Representatives to submit any questions with 
regard to the financial affairs of the lessor, and I feel sure that 
the intention was to inquire as to the effect of the bill upon the 
financial affairs of the lessee. 

Assuming such to be the question intended, I beg to answer as 
follows: The expression "financial affairs of the lessee," as used 
in connection with legislation, I understand to mean the issuance 
of stock and bonds and the payment of dividends upon the stock 
of the corporation. As to these matters, the lessee, being a for- 
eign corporation, is subject to the paramount authority of the 
State granting its charter. Its financial affairs cannot be made 
subject to direct regulation by this Commonwealth. If statutes 
were enacted in relation to such matters by Massachusetts con- 
trary to the provisions of the statutes of New York, it would still 
be the duty of the lessee to obey the laws of the latter State. 



County Accounts — Police Officers and Constables — Fees 

— District. 

A district is a distinct geographical division, established by the sovereignty for the 
purpose of taxation, and therefore the receipt of a salary from such district 
does not, under St. 1890, c. 440, preclude an officer who in the service of a 
warrant acts, not as a district, but as a town officer from charging his fees 
therefor. 

Your letter of March 22 submits the question whether public Totiie 

rr 11-111 Controller 

orncers or constables appointed by the town of Easton, without oi county 

' ^ '' ' Accounts. 

salary, who, as such constables or police officers, serve criminal jijy^g 
process, are entitled to fees for such service, notwithstanding the 
fact that they are paid a salary by the North Easton Improve- 
ment District. 

The question arises under the provisions of St. 1890, c. 440, § 1, 
which is as follows : " Except as specially provided in this act, no 
officer in attendance on any court, and no sheriff, deputy sheriff, 
jailer, constable, city marshal, or other police officer who receives 
a salary or an allowance by the day or hour from the Common- 
wealth, or from any county, city or town for his official services, 



210 OPINIONS OF THE ATTORNEY-GENERAL. 

shall be paid any fee or extra compensation whatever for any 
official services rendered or performed by him in any criminal 
case in which the Commonwealth or any county, city or town is a 
party interested. . . ." It is well understood that under this 
act constables and police officers receiving a salary from the city 
or town by which they are employed cannot charge fees for ser- 
vice of criminal process. 

There can be no doubt that the intention of the Legislature 
was to include all salaried officers; but I think this is a case 
where the letter of the law must govern, rather than the pre- 
sumed intent of the Legislature. The North Easton Improve- 
ment District is not a town, but only a small portion of one. The 
word "district," when used in the legislation of the Common- 
wealth, has a special and well-understood signification. It in- 
cludes, among others, fire districts, school districts and watch 
districts. Its revenue is provided for by taxation of its inhabit- 
ants. It is a distinct geographical division, established by the 
sovereignty for the purpose of taxation, — as much so as a 
county, a city or a town. These facts must have been in the 
mind of the Legislature when the act in question was framed. 
That being so, I am unable to read the word "district" into the 
act whose terms are so clear, or to construe "town" to include 
"district." 

Whether the omission was by accident or by design, I am of 
opinion that the receipt of a salary from a district does not pre- 
clude an officer who, in the service of a warrant, acts not as a 
district but as a town officer, from charging his fees therefor. 



County Accounts — Fees and Expenses before Trial Jus- 
tices — Constructive Repeal. 

Since it was the intention of the Legislature, in St. 1891, c. 325, to make proceed- 
ings before trial justices in all respects like those before the inferior courts of 
record, a provision in St. 1890, c. 440, which is at variance with such inten- 
tion, is constructively repealed. 

Controller ^t. 1890, c. 440, entitled "An Act relating to fees of salaried 

MTonntl officers, to expenses of criminal cases, of inquests and of commit- 
ji!iTi3. ment of the insane," changed radically the system before then in 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 211 

force relating to expenses of criminal cases and the disposition 
of fines and costs. Formerly, in police, district or municipal 
courts the fees and expenses of officers were paid by the county, 
and all fines, forfeitures and costs recovered in such courts were 
paid into the county treasury. The statute in question changed 
this by providing that such fees and expenses shall be paid by 
the city or town in which the offence is committed, and that the 
fines and forfeitures recovered shall be paid to the same city or 
town ; thus imposing upon cities and towns the expenses of prose- 
cutions for petty offences, and giving to them the revenue by 
way of fines and forfeitures recovered from such prosecutions. 
The act contains no reference to trial justices, except in § 2, the 
last clause of which provides that in cases before trial justices 
the fees and expenses of officers, if not paid by defendants, shall 
be paid by the county where the trial is had. 

St. 1891, c. 325, § 1, is as follows: "The provisions of chapter 
four hundred and forty of the acts of the year eighteen hundred 
and ninety, which relate to police, district and municipal courts, 
shall apply, with equal force and effect to trial justices and 
proceedings before them." 

The question submitted by your letter of March 22 is whether 
the section last quoted is intended to repeal the last clause of 
§ 2 of c. 440, so that, in cases before trial justices, officers' fees, 
instead of being paid by the county, as provided in the former 
act, shall be paid by the city or town where the offence was com- 
mitted, as in cases before police, district and municipal courts. 

Upon the general principles of construction applicable to such 
cases, it might fairly be contended that the special provision with 
relation to trial justices in the former act was intended to be left 
unchanged by the later act. The expression "the provisions 
... [in the former act] which relate to police, district and 
municipal courts," in the statute of 1891, would not ordinarily 
include a special provision in the former act not relating to police, 
district and municipal courts, but to trial justices, unless, from 
other provisions of the act, the intention of the Legislature 
appears to be inconsistent with such a construction. 

Upon consideration, however, of the whole act, I am of opinion 
that the intention of the Legislature was that all its provisions, 



212 OPINIONS OF THE ATTORNEY-GENERAL. 

including those relating to the payment of officers' fees, were 
intended to be applicable to trial justices; and that these tri- 
bunals were to be put upon the same footing in all respects with 
police, municipal and district courts. For example: by § 5, 
fines and forfeitures recovered in police, district and municipal 
courts are payable to the town or city in which the offence was 
committed. This provision is clearly made applicable to trial jus- 
tices by the later act. It is not to be presumed that the Legisla- 
ture intended that such towns and cities should have the financial 
benefits of such prosecutions, and at the same time not be hable 
for the expenses incurred. Section 8 provides that the disbursing 
officers in district courts shall pay the fees and expenses at the 
end of the trial, if they have in their hands sufficient funds pay- 
able to the city or town liable therefor; if they do not have such 
funds, the fees are to be certified to the treasurer of the city or 
town liable, who shall pay them. This section cannot apply to 
proceedings before trial justices if the clause in question in the 
former act is not repealed by the later act. 

I do not think that such inconsistencies were intended, but 
that the purpose of the Legislature was to make proceedings 
before trial justices in all respects like proceedings before the 
inferior courts of record; and that the provision in the act of 
1890, that, in cases before trial justices, the fees and expenses of 
officers are to be paid by the county, is constructively repealed 
by the act of 1891. 

Insurance — Fraternal Beneficiary Corporations — Form 
OF Contract — Benefit Certificate — Reserve Fund. 

St. 1899, c. 442, relating to fraternal beneficiary corporations, regulates the form 
of the contract between the company and the certificate holder, by provid- 
ing that such contract shall specify that the latter shall only receive the 
amount collectible by an assessment upon the members, regardless of the 
amount named in the certificate, except that when the corporation has, at 
the time when the certificate is payable, a reserve fund upon which it has the 
right to draWj the whole amount may be paid. 



Totiicinsur- g^ 1899, c. 442, relating; to fraternal beneficiary corporations, 

ance Commis- "^ • 7 > r^ j i- 7 

^'woT provides in § 11 as follows: " The benefit certificate shall, in 

juiyw. effect, provide that if the death of the member therein named 



A 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 213 

shall occur when one full assessment on each member would not 
amount to the face sum of the maximum certificate of such cor- 
poration, then the amount paid the beneficiary thereunder shall 
not exceed the amount of such full assessment or the proportion- 
ate part thereof which said face sum named in such certificate 
bears to such maximum certificate, but this restriction shall not 
apply to a corporation which confines its membership to the 
permanent employees of towns, cities, the Commonwealth, or the 
federal government, nor to a corporation having an emergency or 
reserve fund until such fund shall have been exhausted." 

Your letter of May 9 submits the question whether a corpora- 
tion which has a reserve fund need insert the proviso in question 
in its benefit certificates, so long as any portion of such reserve 
fund remains in the possession of the corporation. 

Taken literally, the language quoted does not require the inser- 
tion of the proviso until the reserve fund has been exhausted. 
But such a construction is manifestly absurd. The fund is 
exhausted not by the issuance of certificates, but by payments 
under them ; and it is impossible to determine in advance whether 
the reserve fund will be sufficient to make good the amount in- 
sured when the certificate shall become payable. If, therefore, 
the section be construed according to its literal terms, it has no 
useful meaning and serves no purpose. 

Although the language of the section is not in all respects hap- 
pily chosen, the intention of the Legislature undoubtedly was to 
regulate the form of the contract between the company and the 
certificate holder, by providing that it shall specify that the latter 
shall only receive the amount collectible from an assessment upon 
the members, regardless of the amount named in the certificate, 
excepting that if, when the certificate is payable, the association 
has a reserve fund upon which it has the right to draw to make 
up the deficiency, the whole amount may be paid. If the con- 
tract be so worded, the beneficiary is not misled and the purpose 
of the statute is carried out. 

I am of opinion, therefore, that such is the construction to be 
given to the statute, and that certificates are to be worded 
accordingly. 



214 OPINIONS OF THE ATTORNEY-GENERAIv. 



Fraternal Beneficiary Association — Foreign Assessment 
Insurance Company — Employment of Paid Agents. 

The features of fraternal beneficiary associations which distinguish tliem from 
assessment insurance companies are the non-employment of paid agents and 
the conduct of business upon the lodge system. Any insurance company, 
therefore, which elsewhere than in tliis State employs paid agents to solicit 
business, is not a fraternal beneficiary association within the meaning of the 
term as used in the statutes of Massachusetts, even though such agents are 
not employed in Massachusetts, but is, in effect, an assessment insurance 
company, and, as such, is not entitled to do business within this Common- 
wealth. 

Totheinsur- Youi letter of May 9 submits the question whether a foreign 

ance Commis- j i. <j 

^""l^l assessment insurance company, which in other States employs 

juiy2o. pg^^^ agents in soliciting business, may do business in this State 

under the provisions of St. 1899, c. 442, if it does not employ such 
paid agents in this Commonwealth. 

The Legislature of this State has recognized three general 
classes of life and disability insurance, to wit: first, what may, 
for convenience, be termed "old line" insurance; second, assess- 
ment insurance conducted as a business enterprise; and third, 
fraternal benefit insurance, being that form of insurance which is 
provided by membership in fraternal and benevolent associations. 
In the General Statutes, enacted in 1860, there is no reference 
whatever to any other than "old line" insurance. The first ap- 
pearance in legislation of assessment insurance in any form was 
in St. 1877, c. 204, which provided that associations incorporated 
for educational, benevolent and religious purposes might, "for 
the purpose of assisting the widows, orphans or other descend- 
ants of deceased members, provide in their by-laws for the pay- 
ment by each member of a fixed sum, to be held by such association 
until the death of a member occurs, then to be forthwith paid to 
- the person or persons entitled thereto." It was further provided 
that the provisions of general insurance laws should not be appli- 
cable to such beneficiary insurance corporations. 

Although the clear intent of this statute was to authorize only 
the payment of death benefits to the representatives of deceased 
members of benevolent and fraternal associations, an extensive 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 215 

assessment insurance business grew up, the companies transact- 
ing wMch, while claiming to be authorized by this statute, were 
in fact doing business illegally. 1 Op. Atty.-Gen. 468. They 
were using a statute intended for charitable purposes to carry 
on an assessment insurance business. See Bliss v. Parks, 175 
Mass. 539. 

The attention of the Legislature was called to these practices, 
but, instead of prohibiting them, they were legalized by St. 1885, 
c. 183, which was the first of a long series of statutes authorizing 
the formation of corporations for the carrying on of assessment 
insurance. The statute of 1885, which regulated the assessment 
insurance business, expressly exempted fraternal benefit com- 
panies from its provisions, and they remained without special 
legislative regulation until St. 1888, c. 429, which was entitled 
"An Act relating to fraternal beneficiary organizations." With 
the enactment of that statute all three classes of insurance were 
recognized, and were regulated by statutes relating to each class. 

It is not always easy to draw the line between a charitable 
association and an ordinary assessment insurance company. 
Both provide for the payment of benefits to the representatives 
of deceased certificate holders, the funds for which are derived 
from assessments upon other certificate holders. In this respect 
both are equally engaged in the business of assessment insurance. 

The Legislature, however, in 1899 (c. 229, §§ 5, 6) prohibited 
the further carrying on of the business of assessment insurance, 
and repealed all legislation authorizing such business. Frater- 
nal insurance associations were not included in this prohibition. 
It becomes necessary, therefore, to ascertain the legislative dis- 
tinction between the two forms of insurance. In the first statute 
relating to fraternal beneficiary associations (St. 1888, c. 429), 
after regulating the formation of such corporations, it was pro- 
vided in § 8 as follows: "Any corporation duly organized as 
aforesaid, and which does not employ paid agents in soliciting 
or procuring business, other than in the preliminary organization 
of local branches, and which conducts its business as a fraternal 
society on the lodge system, or limits its certificate holders to a 
particular order, class or fraternity, or to the employees of a par- 



216 OPINIONS' OF THE ATTORNEY-GENERAL. 

ticular town or city, designated firnij business house or corpo- 
ration, may provide in its by-laws," etc. These words, in my 
opinion, define fraternal beneficiary associations as distinguished 
from assessment insurance companies. The same language is 
used in St. 1894, c. 367, which was a revision of existing stat- 
utes relating to beneficiary associations. In subsequent revi- 
sions (St. 1898, c. 474; St. 1899, c. 442) the provision with relation 
to the employment of paid agents is omitted from the section, a 
part of which I have quoted above, but is re-enacted in a sepa- 
rate section. 

From these provisions it sufficiently appears that in all the 
legislation relating to fraternal beneficiary associations the Legis- 
lature has made the non-employment of paid agents and the con- 
duct of business on the lodge system the distinctive features of 
such associations, as distinguished from assessment companies. 
It has thus carefully drawn the line between enterprises in their 
nature charitable and those which are entered into merely for 
the purposes of gain, and has declared that one of the distin- 
guishing characteristics of an association purely benevolent is 
the fact that it does not employ paid agents to solicit business. 

I am of opinion, therefore, that any insurance company w^hich 
elsewhere than in this State employs paid agents to solicit busi- 
ness is not a fraternal beneficiary association within the meaning 
of that term as used in our statute, even though it does not em- 
ploy paid agents in this State ; but is, rather, in effect an assess- 
ment assurance company, and, as such, cannot do business within 
this Commonwealth. 

The provision in the later statute relating to fraternal benefi- 
ciary associations (St. 1899, c. 442, § 21), that ''no corporation 
organized or transacting business under this act shall employ paid 
agents in soliciting or procuring business," is not a mere local 
regulation. If it were, it would be in force only in this Common- 
wealth, and would not apply to foreign corporations. But, in 
view of the history of fraternal beneficiary associations and of 
their distinctive character as defined in the legislation of the 
Commonwealth, the prohibition of § 21, above quoted, is more 
than a mere local regulation. It is declaratory of the character 



J 



I 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 217 

of the association, and as such applies equally well to foreign and 
domestic companies. 

The result of holding otherwise would be that, while no 
domestic company can carry on assessment insurance business 
in this Commonwealth, any such company from abroad can 
come within the Commonwealth, and, by omitting to employ 
paid agents here, enjoy all the advantages of assessment insur- 
ance business denied to local companies. 

I cannot believe the Legislature so intended. On the other 
hand, I am of opinion that it is your duty, when you are satisfied 
that an assessment insurance company is conducting business 
through paid agents, to deny it admission to this Commonwealth. 
It is not a fraternal beneficiary association within the meaning of 
that term as used in the legislation of this State. 



Flats — Erection of Structures — Solid Filling — Dis- 
placement OF Tide Water. 

A decree of court requiring the erection of certain structures in tide water, by the 
city of Boston, and directing that "the first approach . . . shall be filled 
solid with suitable filling," does not require the city to make a structure im- 
pervious to water. 

The word "solid," when used with reference to a structure to be erected in tide 
waters, is, unless words are used which clearly require such structure to be 
water-tight, to be taken to mean a structure built up solidly from the bottom, 
in contradistinction to one supported on piles. 

The compensation to be paid, under Pub. Sts., c. 19, § 14, by the party erecting in 
tide waters a structure impervious to water, which lessens the amount of flow 
not only upon the flats covered bj' it, but also over adjacent flats, should be 
ascertained upon the basis of all the tide water which such structure displaces. 

Your letter of June 6 submits the question whether, upon the to the Board 

of Harbor and 

facts stated in the documents accompanying the letter, the Bos- Land^commis- 
ton Electric Light Company should be required to make com- j^f^\^ 
pensation for tide water displaced by the filling of flats under a 
license from your Board. The facts, as far as they are material 
to the questions raised, appear to be substantially as follows: — 

By a decree of the Superior Court, duly entered upon a petition 
for the abolition of certain grade crossings on Congress Street, 
the city of Boston was directed, among other things, to build 



218 OPINIONS OF THE ATTORNEY-GENERAL. 

upon certain flats, a part of which at that time belonged to the 
Boston Electric Light Company, a way, being a part of what is 
now Dorchester Avenue extension. The terms of that part of the 
decree relating to this way were as follows: "Tenth. The first 
approach leading from Atlantic Avenue to said new street shall 
be filled solid with suitable filhng, supported where necessary, 
by a sea-wall, and shall have a roadway paved and curbed with 
granite 60 feet wide, with a sidewalk on each side 10 feet wide, 
paved with brick." 

As this work was required to be built over tide waters, the city 
of Boston applied to your Board for a license therefor. Their 
petition was filed in May, 1897, and was for a license to build "a 
sea-wall on the pier-head line, between Summer Street and Con- 
gress Street, and along the line of widening of Congress Street, 
and to fill back of said wall." In September, 1897, your Board 
issued a license authorizing the city of Boston "to build a sea- 
wall on the pier-head line between the northerly side fine of Sum- 
mer Street extension and the northerly side line of Congress Street 
as widened to 80 feet, and on said northerly side line of Congress 
Street as widened, from said pier-head line to the sea-wall of the 
Boston Real Estate Trust; also to fill solid back of said sea-wall, 
in conformity with the accompanying plan No. 2043." In con- 
formity to these decrees the city of Boston has built, or is build- 
ing, a solid structure. It has, however, constructed viaducts in 
said structure, through which the tide ebbs and flows upon the 
flats in the rear thereof. These flats belong to the Boston Elec- 
tric Light Company. 

The precise question submitted by j^our letter is whether the 
displacement of tide water which will be occasioned when the 
flats of the Boston Electric Light Company are filled should be 
paid for by the city of Boston or by the Boston Electric Light 
Company. The contention of the latter company is that, inas- 
much as both the decree of the Superior Court and the license of 
your Board specify a sea-wall and a solid filling for the structure 
to be erected by the city of Boston, the land in the rear must 
necessarily be thereby cut off from the ebb and flow of the tide, 
so that there would be no longer any displacement of tide water 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 219 

caused by the filling of the flats of the company; and that the 
city of Boston should pay for all the tide water which would be 
displaced by the structure built by it as a solid structure, imper- 
vious to the flow of the tide. 

There can, of course, be no question that, if such a structure 
were built under license from your Board which would cut off all 
the land in the rear from the ebb and flow of the tide, the dis- 
placement to be paid for by the party erecting such a structure 
would include not merely the territory covered by the structure, 
but all the flats in the rear so separated from the ebb and flow of 
the tide. The language of the statute (Pub. Sts., c. 19, § 14) is 
as follows: "The amount of tide water displaced in tide water 
below high-water mark, or by any filling of flats," etc. The sec- 
tion further provides that the annual income from all fees for 
compensation for tide water displaced shall be expended by your 
Board for the improvement of the harbor. The purpose of the 
section was clearly to require persons lessening the volume of 
tidal flow over flats adjacent to a harbor to contribute in propor- 
tion to the amount of such lessening to a fund for the improve- 
ment of the harbor. A solid structure, impervious to water, 
would lessen the amount of flow, not only upon the portion of 
the flats covered by the structure, but upon all the flats from 
which the water was thereby kept; and the compensation to be 
paid by the party building such a structure should be ascertained 
in view of all such displacement. 

The difficulty with the contention of the Boston Electric Light 
Company is, that it interprets the words "filled solid," which 
occur several times in the decree, and are used in the license of 
your Board, to mean a filling which is effectual to shut off the 
flow of water. Unless the word "solid " necessarily imports such 
a meaning, this interpretation is not warranted by the language 
of any part of the decree or of the license. On the contrary, 
referring to another part of the work, the decree requires the 
building of a wall of stone laid in cement, which obviously would 
be a water-tight structure. It does not foDow that a sea-wall, or 
even a solid structure, is impervious to the ebb and flow of the 
tide. On the contrary, it is a matter of common knowledge that 



220 OPINIONS OF THE ATTORNEY-GENERAL. 

in the case of loosely built stone walls the water flows through 
almost as readily as through a pile structure. 

The language used both by the court and by your Board, in 
my opinion, has reference, not to the question of imperviousness 
to water, but rather to the character of the structure for the pur- 
poses for which it is to be used. Two kinds of structures are in 
common use in tide waters: one is a solid filling, the other a 
structure supported by piles. When the term "solid" is used 
with reference to a structure to be constructed in tide waters, 
it is, unless words are used which clearly require a water-tight 
structure, to be taken to mean a structure built up solid from 
the bottom, in contradistinction to a pile structure. 

There was nothing either in the decree of the court or in the 
license of your Board which required the city of Boston to make 
its structure impervious to water; and unless, for reasons which 
have no reference to the case of the Boston Electric Light Com- 
pany, your Board saw fit to direct otherwise, it might properly 
provide for the passage of tide water through the sea-wall and 
filled roadway without disobeying the essential terms of the 
decree or of your license. 

But, however this may be, the situation as to the Boston Elec- 
tric Light Company, so far as it concerns its obligations under the 
law, is very simple. It is in possession of flats over which the 
tide water ebbs and flows. It seeks permission to fill those flats 
and thereby to displace a corresponding amount of tide water 
which actually flows upon its premises. It is not a party to any 
questions which may arise between your Board and the city of 
Boston, or between the court and the city, and cannot set up the 
city's acts to support its claim that it should not pay for the 
displacement which its filling actually causes. 

For these reasons, I am of the opinion that your Board may 
properly determine that the Boston Electric Light Company 
should pay for the amount of tide water actually displaced by 
it by filling its flats. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 221 

Foreign Corporations — Express Companies — Appoint- 
ment OF Agent for Service — Unincorporated Asso- 
ciations. 

So much of Pub. Sts., c. 73, § 3, which provides that every corporation not organ- 
ized in, or every association of persons not inhabitants of, tliis Commonwealth, 
whicli does an express business, shall appoint an agent resident in Massacliu- 
setts, upon whom processes against such corporation or association may be 
served, as relates to incorporated express companies is superseded by St. 
1884, c. 330; the provisions regarding vokmtary associations composed of 
inhabitants of other States are, however, still in force. 

Your letter of July 16 requires the opinion of the Attorney- Tothe 
General upon the question whether Pub. Sts., c. 73, § 3, has been Receuer- 

^ ^ ' > ^ > General. 

superseded by St. 1884, c. 330. , woo 

^ '' ' _ August 14. 

The chapter of the Public Statutes referred to relates to com- 

mon carriers and express companies. Sections 1 and 2 are in- 
tended to prohibit discriminations in the charges for express 
business. Section 3 is, in part, as follows: "Every corporation 
not organized in this Commonwealth and every association of 
persons not inhabitants thereof, which does an express business 
in the Commonwealth, shall, in writing, appoint a person who is a 
citizen thereof and a resident therein, to be a general agent, upon 
whom all lawful processes against such corporation or persons 
may be served with like effect as if served on said corporation or 
persons; and said writing, or power of attorney, shall contain an 
agreement on the part of the corporation or persons making the 
same that the service of any lawful process against it or them on 
said general agent shall be of the same legal force and validity as 
such service on said corporation or persons, or any of them." 
The section further provides that the power of attorney shall be 
filed in the office of the Secretary of the Commonwealth, and 
that the agency thus created shall continue as long as such ex- 
press business is done in this Commonwealth. 

Section 4 provides that the agent so appointed shall give a 
bond to the Treasurer of the Commonwealth, with the condition 
that he will accept service of all lawful processes against his prin- 
cipal. Section 5 imposes a penalty upon every person doing busi- 
ness as an agent of a foreign express company or association unless 



222 OPINIONS OF THE ATTORNEY-GENERAL. 

the provisions above referred to have been compUed with. Sec- 
tion 6 relates to other matters. 

At the time this statute was enacted, the only provision relat- 
ing to service of process upon corporations generally was in Pub. 
Sts., c. 105, § 28, which provided that corporations created by 
any other State having property in this Commonwealth should 
be liable to be sued in like manner as residents of other States 
having property in the Commonwealth are liable to be sued. In 
addition to this general provision, there was a special provision 
relating to insurance corporations. Pub. Sts., c. H9, § 202. 

The first general law requiring all foreign corporations to 
appoint a domestic agent was St. 1884, c. 330. Section 1 is as 
follows: ''Every corporation established under the laws of any 
other state or foreign country and hereafter having a usual place 
of business in this Commonwealth shall, before doing business in 
this Commonwealth, appoint in writing the commissioner of cor- 
porations or his successor in office to be its true and lawful attor- 
ney upon whom all lawful processes in any action or proceeding 
against it may be served, and in such writing shall agree that any 
lawful process against it which is served on said attorney shall 
be of the same legal force and validity as if served on the com- 
pany, and that the authority shall continue in force so long as any 
liability remains outstanding against the company in this Com- 
monwealth. A copy of the writing, duly certified and authen- 
ticated, shall be filed in the office of the said commissioner, and 
copies certified by him shah be deemed sufficient evidence thereof. 
Service upon such attorney shall be deemed sufficient service 
upon the principal." It will be seen that this section is similar in 
its provisions to Pub. Sts., c. 73, § 3, above quoted, excepting 
that the agent to be appointed by the foreign corporation must 
be the Commissioner of Corporations, who, being a pubhc officer, 
is not required to give bond as such agent. 

Of course no useful purpose can be subserved by requiring 
foreign express corporations to comply with both statutes, 
although I am informed that this has been done since the statute 
of 1884 in a number of cases. Under the general rules of con- 
struction applicable to such cases, the later law, being general 
Ia its terms and covering the whole field, repeals the prior special 



HOSEA M. lOTOWLTON, ATTORNEY-GENEEAL. 223 

law. Under this rule, foreign corporations carrying on express 
business in this Commonwealth, so far as the appointment of 
agents is concerned, are now within the provisions of the statute 
of 1884, and are no longer required to appoint a private person 
as agent, under the provisions of Pub. Sts., c. 73, § 3. 

Inasmuch, however, as c. 73 includes unincorporated associa- 
tions not inhabitants of the Commonwealth, while the statute of 
1884 refers only to the foreign corporations, the section of the 
Public Statutes cannot be regarded as wholly repealed by the 
statute of 1884; but, on the other hand, it is still in force so far 
as regards voluntary associations composed of inhabitants of 
other States. 

It follows that, in so far as Pub. Sts., c. 73, § 3, relates to for- 
eign express companies, it is superseded by the statute of 1884. 
Although this construction of the two statutes is somewhat 
awkward, it is the only possible one which, consistently, can be 
adopted. It is to be observed that insurance companies, which, 
like express companies, had heretofore been governed by special 
provisions, are expressly exempted from the general provisions of 
the statute of 1884. This strengthens the conclusion that ex- 
press companies were intended to be included in the general law. 



Commissioners on Inland Fisheries — Great Ponds — Pub- 
lic Right of Fishing. 

Since great ponds are the property of the Commonwealth, and fishing in tliem is 
free to tlie public excepting when otherwise provided by the Legislature, a 
statute which limits the right of citizens to fish in great ponds is derogative 
of the rights of citizens generally, and is to be strictly construed. 

When a great pond has been stocked and the fishing therein regulated for a period 
•'not exceeding three years," under St. 1897, c. 208, the Board of Commis- 
sioners of Inland Fisheries cannot, after the expiration of such term, again 
stock and regulate the fishing in such pond under the provisions of that 
statute. 

Great ponds, meaning by that term ponds of more than twenty to the com- 

iiiissioDGrs 

acres in area, are in this State the property of the Commonwealth, on inland 

Fisheries 

and fishing in them is free to the public excepting when other- and Game, 
wise provided by the Legislature. A statute, therefore, which A ugust 21. 
limits the right of citizens to fish in great ponds is to be strictly 
construed, being derogatory to the rights of citizens generally. 



224 OPINIONS OF THE ATTORNEY-GENERAL. 

By Pub. Sts., c. 91, § 12, the Commissioners of Inland Fish- 
eries were authorized to lease a great pond for the purpose 
of cultivating useful fisheries, for such time as they might see fit. 
This section, however, was repealed in 1885. St. 1885, c. 109. 

Section 17 of the same chapter (Pub. Sts., c. 91) authorized 
the commissioners to occupy, manage and control not exceed- 
ing six great ponds for the purpose of cultivating useful fisheries. 
This statute is still in force, and, taken in connection with the 
repeal of § 12, authorizing the leasing of great ponds, clearly 
indicates the intent of the Legislature to limit the number of 
ponds, public rights in which may be indefinitely restricted, to 
six in number. 

St. 1897, c. 208, provides as follows: — 

Section 1. The commissioners of inland fisheries and game, upon 
petition of thirty or more inhabitants of a city or town within whose 
limits a great pond or portion thereof is situated, or upon petition of the 
mayor and aldermen of such city or of the selectmen of such town, shall 
cause the waters of such pond to be stocked with such food fish, if any, 
as they may judge to be best suited to the waters in which the fish are to 
be placed. 

Section 2. Said commissioners shall thereupon prescribe, for a period 
not exceeding three years, such reasonable regulations relative to the fish- 
ing in such pond or ponds and their tributaries, with such penalties, not 
exceeding twenty dollars for any one offence, as they may deem for the 
best interests of the -public, and shall cause such regulations to be en- 
forced. 

The question submitted in your letter of July 28 is whether, 
when a great pond has been stocked and the fishing therein regu- 
lated for a period "not exceeding three years," under the statute 
last quoted, your Board may, after the expiration of such term, 
again stock and regulate the fishing in said pond under the pro- 
visions of said statute. 

Clearly not. If the law could be so construed, the power of the 
commission to diminish public rights in great ponds might be 
indefinitely extended, both as to time and as to number. Such 
a construction is not to be favored, and was evidently not in- 
tended by the Legislature. 



I 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 225 



Secretary of the Commonwealth — Convention — Nomi- 
nation OF Candidates — Official Ballot. 

A convention cannot divest itself of its duty to nominate candidates by delegating 

that duty to any person or committee, unless the action of such delegated 

person or committee is ratified by the convention itself. 
The Secretary of the Commonwealth cannot, therefore, place upon the official ballot 

the name of a candidate upon which the convention has not itself acted in 

some form. 

Your inquiry of September 1 in substance is whether, in my to the 

. . ,. . , . 1 . . f^ Secretary. 

opinion, a pohtical convention may by a vote authorize its omcers laoo 

or a committee to nominate such candidates as it is authorized 

to nominate, instead of making delegate nominations. I assume 
that the purpose of the inquiry is to enable you to determine 
whether you have a right to place upon the Australian ballot the 
name of a candidate nominated in the way suggested. 

There are many complex and precise provisions as to the con- 
duct of caucuses, but the Legislature has seen fit to leave political 
conventions unhampered by any specific rules. The only law 
applicable to them, therefore, is such as would be applicable to 
any deliberative assembly. 

Delegates to conventions are selected and commissioned to 
nominate candidates. They are unhampered as to their method 
of nominating candidates. They can do so by acclamation, by 
vote, by the adoption of the recommendation of a committee, or 
by lot, even, if the result be adopted by the convention; but the 
nomination, when made, must be the work of the convention, 
and not of a body delegated by them. This is the general rule 
applicable to all delegated authority. 

In my opinion, a convention cannot divest itself of its duty to 
nominate candidates by devolving that duty upon any other 
person or committee, unless the action of such delegated person 
or committee is ratified by the convention itself. I cannot advise 
you to receive the name of a candidate upon which the conven- 
tion has not itself acted in some form. 



226 



OPINIONS OF THE ATTORNEY-GENERAL. 



Unpaid Taxes 



To the Com- 
missioners on 
Revision of 
StJitutes. 

1900 
October 16. 



Rate of Interest 
— Repeal. 



Legislative Intent 



St 1900, c. 398, repeals so much of Pub. Sts., c. 13, § 54, as fixes the rate of interest 
on unpaid taxes due the Commonwealth. 

Whatever may have been the intent of the framers of St. 1900, 
c. 398, I am constrained to beUeve that the legislative intent de- 
ducible from this amendment must be taken to be the repeal of 
so much of Pub. Sts., c. 13, § 54, as fixes the rate of interest on 
unpaid taxes due the Commonwealth. 

The older statute provides that, upon suit brought by the 
Treasurer, he may recover the taxes ''with interest at the rate 
of twelve per cent, per annum until the same are paid." St. 1900 
provides that all corporations neglecting to pay taxes shall pay 
"interest at the rate of six per cent, per annum on the amount 
so certified, from the time when such taxes become due until they, 
are paid." 

These are obviously inconsistent provisions as to rate, and per- 
haps as to the duration of time during which interest runs. I 
cannot believe that it was the intention of the Legislature to im- 
pose a different rate of interest where suits are brought from those 
paid without suit. There is no such provision, so far as I know, 
in any other department of the law; and there seems to be no 
good reason for supposing the Legislature so to have intended. 



To the Insur- 
ance Commis- 
sioner. 
1900 
October 17. 



Insurance — Nature of Contract. 

An agreement by which a corporation, in consideration of a weekly payment, 
undertakes to furnish medical attendance to the person with whom the con- 
tract was made, and to have filled and furnished prescriptions for medicine 
that may be prescribed by the physician, it being stipulated that the corpo- 
ration furnishes the physician, is not a contract of insurance. 

The opinion of the Attorney-General is required by you upon 
the question whether the form of agreement submitted to me of 
the American Medical Protective Society, a New Jersey corpo- 
ration, will, if executed in this Commonwealth, amount to a con- 
tract of insurance. 



HOSEA M. IvNOWLTON, ATTORNEY-GENERAL. 227 

The contract, a form of which is submitted, is in substance an 
agreement by which the corporation, in consideration of a weekly- 
payment, undertakes to furnish medical attendance to the per- 
son with whom the contract was made, and to have filled and 
furnished prescriptions for medicine that may be prescribed by 
the physician, it being stipulated that the corporation furnishes 
the physician. 

This is not a contract of insurance. 1 Op. Atty.-Gen. 545, 547. 



Pauper — Settlement — Military Service — United 
States Records. 

Where a pauper is enrolled upon the records of the United States as having been 
honorably discharged from the military service thereof, that fact is conclu- 
sive evidence of such discharge upon a question of settlement. 

Your letter of May 24, touching the question of the settlement {^°endeit oT" 
of Frank Alonzo Sherman, who died at the Worcester Insane poor.^*^"^*^ 
Hospital, was duly considered at the time, but, unfortunately, October 19. 
was mislaid. 

If I understand the facts, Sherman had probably been absent 
without leave from his post of duty, and had not returned to be 
mustered out; thereupon he was at first taken to have been a 
deserter. 

Acting under the authority of c. 390 of the Acts of the second 
session of the fiftieth Congress (U. S. Rev. Sts. at Large, Vol. 25, 
p. 869), the charge of desertion was removed by the Secretary of 
War, and he was enrolled upon the records of the United States 
as being honorably discharged. Similar proceedings took place 
in this Commonwealth; but, in view, of what I deem to be the 
law, I do not regard the Massachusetts proceedings as of conse- 
quence. 

If I understand the purport of the decision of the court in 
Fitchburg v. Lunenburg, 102 Mass. 358, questions of fact as to 
discharge, desertion, absence from leave, etc., arising upon set- 
tlement cases between two municipalities, must be governed by 
the official records of the military authorities of the United States. 
This case appears to come within the purview of that decision; 



228 OPINIONS OF THE ATTORNEY-GENERAL. 

and, if it can be shown that the man in question appears upon 
the records of the United States as having been honorably dis- 
charged, that fact is conclusive upon the question of settlement. 



To the Super, 
intendent of 
Adult Poor. 

1900 
November 10. 



Pauper — Insane Person — Transfer to State Almshouse 

— Notice. 

Where an insane person, who has been dulv committed to and is a legal inmate of 
an insane hospital, is transferred by the State Board of Charity, by authority 
of St. 1888, c 69, to the insane ward of the State Almshouse, notice of such 
transfer to the town liable for his support is not required. 

Nor is the father of such person pauperized by his detention in the State Alms- 
house, liis status being that of an insane person and not that of a pauper. 

Your letter of October 18 requires the opinion of the Attorney- 
General upon the question whether the town of Royalston is liable 
for the support of Simeon Quigley, an inmate of the insane ward 
of the State Almshouse at Tewksbury. Quigley has been an 
imbecile from childhood, and never acquired a settlement except 
through his father. The town of Royalston concedes that the 
father, by reason of residence and payment of taxes, became set- 
tled in that town, but disputes liability, for two reasons : — 

1. That no notice was sent to the town, in accordance with the 
provisions of Pub. Sts., c. 86, § 35. 

2. That, inasmuch as Quigley has become an inmate of the 
almshouse, the father is pauperized by his presence there, and 
does not benefit by the provisions of Pub. Sts., c. 83, § 3. 

Pub. Sts., c. 86, § 35, provides as follows: "If a pauper having 
a legal settlement in any place becomes an inmate of the alms- 
house, such place shall be liable to the Commonwealth for the 
expense incurred for him, iii like manner as one town is liable to 
another in like cases; and the trustees and the state board shall 
adopt the same measures in regard to notifying towns so Uable, 
the removal of the pauper, and the recovery from towns of ex- 
penses incurred for him, as are prescribed for towns in hke cases." 

This section is intended to apply to the ordinary case of a sane 
person becoming, by reason of poverty, a pauper charge and 
admitted to the State Almshouse, and is intended to give season- 



HOSEA M. KNOAVLTON, ATTORNEY-GENERAL. 229 

able notice to the town liable for his support, to the end that the 
town may take such measures for the support of the pauper as it 
deems proper, including his removal from the almshouse, if it so 
desires. 

In my opinion, however, it has no application to the case of an 
insane person, who, having been duly committed to an insane 
hospital by proper proceedings therefor, and being a lawful in- 
mate of such insane hospital, is transferred by the State Board 
of Charity to the insane ward of the almshouse. He does not 
thereby become the less a ward of the State, and notice would be 
of no benefit to the town, for it could take no measures for his 
removal or support outside the almshouse. The insane person is 
transferred to the insane ward of the almshouse, not as a pauper, 
but because the public interest requires such a transfer. St. 1888, 
c. 69. Notwithstanding such removal, he is still in the class of 
insane persons rather than that of paupers, and the laws appli- 
cable to insane persons still regulate his status in the insane ward 
of the almshouse. 

The same considerations dispose of the second objection of the 
town. Pub. Sts., c. 83, § 3, relied upon by the town, provides 
that " No person who actually supports himself and his family 
shall be deemed to be a pauper by reason of the commitment of 
his wife, child, or other relative to a lunatic hospital or other insti- 
tution of charity, reform, or correction by order of a court or 
magistrate, and of his inability to maintain such wife, child, or 
relative therein ; but nothing herein contained shall be construed 
to release him from liability for such maintenance." 

Quigley's son is still in a ward of an insane hospital, and is 
detained there as an insane person, not as a pauper. 



230 



OPINIONS OF THE ATTORNEY-GENERAL. 



Corporation — Election of Officers 
Attorney. 



By-Laws — 



To the Board 
of Savings 
Banks Com- 
missioners. 

1900 
November 10. 



The election of the officers of a corporation is a corporate function, which cannot 
be delegated without express statutory authority. 

The statutes do not contain such authority, but, on the contrarj% by clear intend- 
ment require that such officers shall be elected by the members of the 
corporation; and a by-law which delegates to the board of directors of a co- 
operative bank the election or selection of the secretary, treasurer or other 
officers of the bank is therefore illegal. 

An attorney is not an officer of the corporation, and cannot be made one by the 
by-laws. 

Your letter of October 13 requires the opinion of the Attorney- 
General upon the question whether "it is legal for the share- 
holders of a co-operative bank to incorporate in its by-laws one 
that delegates to its board o^ directors the selection or election 
of a secretary, treasurer or other officer of the bank." 

The election of officers is a corporate function, and one that 
cannot be delegated, except by express statutory authority. I 
find no such authority. On the contrary, the statutes by clear 
indication require that the officers of a corporation shall be elected 
by the members of the corporation. 

Pub. Sts., c. 117, § 6, provides that ''The number, title, duties, 
and compensation of the officers of the corporation, their terms 
of office, the time of their election, as well as the qualifications 
of electors, and the time of each periodical meeting of the officers 
and members, shall be determined by the by-laws; but no mem- 
ber shall be entitled to more than one vote at any election. All 
officers shall continue in office until their successors are duly 
elected, and no corporation shall expire from neglect on its part 
to elect officers at the time prescribed by the by-laws." 

There is nothing in this section which can be construed to 
authorize the delegation by the corporation to its directors of the 
corporate duty of electing its officers. On the contrary, the last 
sentence appears to recognize that they are to be elected by the 
corporation, in providing that "no corporation shall expire from 
neglect on its part to elect officers." 

Moreover, Pub. Sts., c. 105, § 1, extends the provisions of that 
chapter to all corporations organized under the laws of the Com- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 231 

monwealth, excepting so far as they are inconsistent with special 
provisions. Section 4 of that chapter provides that ''every cor- 
poration, where no other provision is specially made, may . . . 
elect, in such manner as it may determine, all necessary officers." 
Section 5 contains further provisions relating to the manner of 
calling and conducting meetings of the corporation, the number 
of members that shall constitute a quorum, the number of shares 
that shall entitle members to votes, and other like provisions 
relating to corporate action. This section plainly contemplates 
that officers of a corporation shall be elected by the corporation 
itself. 

Whether those who are called officers of the corporation are in 
fact such, or are merely agents, may be a more difficult question, 
but as to the so-called officers, referred to in your inquiry, there 
is no difficulty. The secretary and treasurer are expressly recog- 
nized by the statutes as corporate officers, for it is provided in St, 
1885, c. 121, § 1, that these offices may be held by one and the 
same person. See also St. 1898, c. 247, § 1. The secretary and 
treasurer are, therefore, clearly officers of the corporation. 

On the other hand, an attorney is not necessarily an officer of 
the corporation, and is not made such an officer by providing in 
the by-laws that he shall be. 

In general, it may be said that the officers of a corporation are 
such officers as are necessary to the carrying on of its corporate 
existence. This definition does not include an attorney. 



Citizenship — Student. 

A student at an institution of learning in this Commonwealth may, if he is of age, 
and free to choose, become a citizen of the town in which such institution is 
located. 

Replying to your inquiry with reference to the right of a student Qo^grnor 
in the Massachusetts Agricultural College to become a citizen of Nove^t^jer 27. 
Massachusetts, I have to say as follows : — 

Citizenship is a question of fact, to be determined upon all the 
circumstances, including, as an important factor, the intention 
of the person in question. Ordinarily, a student at an institution 



232 OPINIONS OF THE ATTORNEY-GENERAL, 

of learning does not by mere attendance at such institution be- 
come a citizen of the town in wliich the institution is located; 
but if he is of age, and free to choose, there is nothing to prevent 
him from becoming such a citizen. The necessary steps are such 
as any person coming from another jurisdiction is required to 
take in order to acquire domicile in this State. 



Great Ponds — Public Rights — Harbor and Land Com- 
missioners — Approval of Structures. 

A statute wliich gives to a town tlie exclusive and unlimited right to use the waters 
of a great pond as a source of water supply does not further diminish the 
rights of the public in such pond. 

The public is, therefore, still interested in the pond, and, since the purpose of re- 
quiring the approval of the Board of Harbor and Land Commissioners for 
structures upon and changes in great ponds is the protection of public rights 
therein, it follows that the town must submit to the Board, for its approval, 
plans contemplating work of that nature. 

To the Board Your letter of August 3 states that the town of Lincoln desires 

ot Harbor and c" 

m^sioil^l to make certain changes in the arrangement of its pumping sta- 

November-27. tlon OR the shores of Sandy Pond in Lincoln, and to straighten 

and otherwise improve the shore line; and requires the opinion 

of the Attorney-General whether the approval of your Board is 

necessary therefor. 

By St. 1888, c. 318, great ponds were put under the control of 
the Harbor and Land Commissioners; and it was provided in 
§ 2 that ''except as authorized by the general court and provided 
in this act, no structure shall hereafter be built or extended, or 
piles driven, or land filled, or other obstruction or encroachment 
made, in, over or upon the waters of any great pond." 

Section 3 further provides as follows: "All persons that are 
or may be authorized by the general court to build or extend any 
structure or to do any other work aforesaid, and who have not 
begun the same, shall, before beginning it, give written notice 
and sul^mit plans of the work they intend to do to the board of 
harbor and land commissioners; and the provisions of section 
eight of chapter nineteen of the Public Statutes shall apply to all 
such works and to the plans therefor, and to the approval thereof 
by said board." 



I 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 233 

The statute under which the town of Lincoln is authorized to 
erect structures upon and make changes in the shore of Sandy 
Pond was enacted in 1872, many years before the statute above 
quoted giving jurisdiction to your Board over great ponds; but 
it is to be observed that the provisions of § 3 of the great pond 
act, above quoted, include not only structures to be hereafter 
authorized by the General Court, but also those which had been 
authorized by some provision of the Legislature before the enact- 
ment of the statute. This is clearly within the power of the 
Legislature. The statute of 1872, in giving to the town the power 
to take land and water rights for a public use, did not give it an 
absolute right the exercise of which the Legislature could not 
afterwards supervise. Nor is the statute of 1872 a contract with 
the town. The statute of 1888, therefore, does not take any 
property right from the town or impair the obligation of a con- 
tract. The town of Lincoln must, therefore, submit its plans to 
your Board for approval, unless there is some provision of the 
statute which exempts it therefrom. 

This act of 1872, c. 188, relating to Sandy Pond, provides, in 
§ 2, as follows: ''Said town, for the purposes aforesaid, may take 
and hold the waters of Sandy pond, so called, in the town of Lin- 
coln, and the waters which flow into and from the same, and 
may also take and hold, by purchase or otherwise, all necessary 
lands for raising, flowing, holding, diverting, conducting, puri- 
fying and preserving such waters, . . . and may erect thereon 
proper dams, reservoirs, buildings, fixtures and other structures, 
and make excavations and embankments, and procure and run 
machinery therefor." 

This section gives to the town the exclusive and unlimited 
right to use the waters of Sandy Pond for the purposes of a water 
supply, but it does not otherwise take away the rights of the pub- 
lic in the pond. It still remains a public pond, open to the public 
for all purposes for which it may lawfully use the great ponds 
of the Commonwealth, subject only to the right of the town to 
draw off the water for the purposes of a water supply. Rock- 
port V. Webster, 174 Mass. 385. 

The public, therefore, is still interested in the pond; and the 
purpose of requiring the approval of your Board for structures 



234 OPINIONS OF THE ATTORNEY-GENERAL. 

upon and changes in great ponds is the protection of the public 
rights in such ponds. The case does not differ from that pre- 
sented by the statute authorizing the construction of the terminal 
station over tide water, in which I advised your Board that all 
plans therefor must be approved by the Board. 1 Op. Atty.- 
Gen. 480. 

I am of opinion, therefore, that the approval of the Board is 
necessary for the work proposed by the town of Lincoln. 



Governor 

1900 
November 27. 



Towns — Streets — Commonwealth's Land. 

A town has no authority to lay out a street over land held in fee by the Common- 
wealth, without the consent of the Legislature. 

To the It is not entirely certain whether a town may take land held 

by the Commonwealth in fee, for the purpose of constructing or 
widening a street. My opinion is strongly against it. 

I do not forget that Pub. Sts., c. 54, § 15, contains an express 
prohibition against the taking by a town of land of a public insti- 
tution belonging to the Commonwealth. It might be inferred 
from this prohibition that the Legislature at least were of opinion 
that, but for such a prohibition, such land could be taken. It 
is well known, however, that statutes are frequently declaratory 
of the common law, and may be so construed, instead of being 
regarded as exceptions thereto. 

St. 1900, c. 382, relating to the State House park, provides 
that the Governor and Council may "waive any or all grade 
damages or claims for land taken for improvement of streets." 
This, too, would appear to recognize the right of the city to widen 
a street by taking land of the park, by authorizing the Governor 
and Council to waive land damages therefor. 

But, notwithstB,nding this indirect authorization, I am still of 
the opinion that a street may not be laid out over land owned 
by the Commonwealth and used by it for public purposes, with- 
out the consent of the Legislature. If this be so, and it is desired 
to widen Bowdoin Street, I think, in order to remove all doubt, 
the Legislature should be asked to pass a resolve authorizing 
such action by the city of Boston. 



November 27. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 235 

State Highway Commission — Alteration of Location of 
Tracks of Street Railway in Highway — Changes in 
Grade — Apportionment of Expense. 

The State Highway Commission, in altering the location of the tracks of a street 
railway located on a State highway, under St. 1898, c. 578, § 16, has authority 
to order changes in grade as well as in horizontal position. 

The commission may also assess upon the railway such portion of the expense of 
the relocation as it deems proper. 

Your letter of October 12 requires the opinion of the Attorney- TotheMassa. 

• 1 1 1 ^T TT- chusetts High- 

(jreneral upon the question whether the Massachusetts Highway waycom- 

_ ^ ^ o ^ mission. 

Commission has the right "to order changes in grade as well as j^o^emte 
in the horizontal position of the tracks of a street railway com- 
pany on the State highway under § 16 of c. 578, Acts of 1898;" 
and also if it has the right to insert in its decrees a provision that 
the railway companies shall pay the damages occasioned to abut- 
ting property by the relocation of its tracks. 

St. 1898, c. 578, § 24, provides that the Massachusetts High- 
way Commission shall in certain cases have the same jurisdiction 
with regard to the location and maintenance of street railways 
as is conferred upon municipal officers with regard to ordinary 
town ways. 

The authority of town and city officers is contained in § 16 in 
the same act, which is as follows: "The board of aldermen of a 
city or the selectmen of a town, upon the petition of the board 
of directors of a street railway company ... or upon the peti- 
tion of any interested party, . . . may alter the location of tracks 
of said company in the manner and subject to the provisions con- 
tained in section fifteen of this act. Such alterations shall be 
made by the company within such time, and the expense thereof 
shall be borne by such party or parties, and in such proportions, 
as the board of aldermen or selectmen may determine." 

The word "location," as used in the section above quoted, 
doubtless includes grade as well as position. If the authorities 
had no control over the grade, the consequences might be dis- 
astrous. 

The statute quoted expressly provides that "the expense 
thereof shall be borne by such party or parties, and in such pro- 



23(5 



OPINIONS OF tup: attorney-general. 



portions, as the board of aldermen or selectmen may determine." 
This clearly gives your Board the right to apportion such part 
of the expense as it deems proper upon the railway company 
whenever it orders a change in location. 



To the Board 
of Harbor and 
Land Commis- 
sioners. 
1900 
November '27. 



Harbor and Land Commissioners — Assignment of Lease 

— Covenants. 

When a lease is assigned and the assignee enters under it, he becomes tenant of the 
lessor and is bound by all the covenants of the lease which are not personal 
to the lessee. 

When, therefore, a lessee of the Harbor and Land Commissioners assigns his lease, 
an agreement to perform the covenants of the lease by the assignee is unnec- 
essary. 

Your letter of November 26 states that a lessee from your 
Board of certain lands in the city of Boston desires to assign his 
lease to a third person ; that your Board is ready to approve the 
assignment, but desires to know whether "it would not be wise 
to have an acceptance of the assignment and an agreement to 
perform the covenants of the lease over the signature of the 
assignee." 

No such agreement by the assignee is necessary. When a lease 
is assigned and the assignee enters under it, he becomes tenant 
of the lessor. He is bound by all the covenants of the lease which 
are not personal to the lessee. Wells, J., in Sanders v. Par- 
tridge, 108 Mass. 556; Brewer v.- Dyer, 7 Cush. 337. 



I 



To the 
SecretJiry. 

1900 
November 30. 



Bounty — Enlistment to satisfy Specific Order of Com- 
mander-in-Chief. 

A vote of a city council, promising a bounty "to such persons, residents of the city, 
as may hereafter enlist as volunteers, ... in accordance with the order 
of the Commander-in-Chief," includes such persons only as enlisted in accord- 
ance with a specific order of the Commander-in-Chief. 

• Your letter of May 14, written in behalf of the commission 
appointed to act upon claims for unpaid bounties, requires the 
opinion of this office upon the question whether William H. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 237 

Carney, formerly of Company C, Fifty-fourth Massachusetts 
Volunteers, a claimant for unpaid bounty said to have been 
promised by the city of New Bedford, is entitled to have his 
claim certified by your commission. 

The apphcant enlisted in New Bedford, Feb. 17, 1863, being at 
that time a citizen of that city. He claims a bounty under the 
provisions of a vote of the city council of New Bedford, passed 
August 18, 1862, which was as follows: — 

Ordered, That the sum of one hundred and fifty dollars be and the same 
is hereby appropriated (in addition to the bounty heretofore appropriated 
by the city council), to be paid such persons, residents of New Bedford, 
as may hereafter enlist as volunteers to be mustered into the service of 
the United States for the term of three years, or until the close of the war, 
in accordance with the order of the Commander-in-Chief. 

The precise question presented is, whether the order above 
quoted includes all persons who enlisted subsequent to that 
date, or only such as enlisted and were mustered in in accord- 
ance with some specific "order of the Commander-in-Chief." I 
have given the matter some attention, both for the reason that 
the case of the claimant is a strong one in equity, and also for 
the reason that, as I am informed, a number of other claims rest 
upon the same facts, and must be governed by your decision in 
this case. 

I regret to be obliged to say that in my opinion this claimant 
does not bring himself within the terms of the statute under 
which your commission acts. That statute provides (St. 1898, 
c. 525, § 1) for the allowance of claims made by veterans who 
were "promised a bounty for military or naval service by vote 
of any city or town in this Commonwealth prior to the ninth day 
of April, in the year eighteen hundred and sixty-five." The 
records are somewhat confused as to details, but they establish 
clearly the fact that the whole quota of New Bedford called for 
by the Commander-in-Chief was filled on or before November 24, 
1862, at which time the city had paid bounties in accordance 
with its votes to 1,041 men, that being the amount of the quota 
fixed by the Commander-in-Chief by his order dated October 1, 
1862. 



238 



OPINIONS OF THE ATTORNEY-GENERAL. 



The particular vote of August 18 above quoted, upon which 
this claimant relies, appears to have been passed in consequence 
of a special order of the Commander-in-Chief, dated August 16, 
authorizing the mayor to raise a three-years company on or before 
Thursday, August 21. This call was complied with, and the 
number of men so required were duly enlisted before the date 
named, and received the bounty promised. This enlistment and 
payment of bounty seems to have exhausted the obligations of 
the city under that order. 

But, whether this was so or not, the fact remains that at the 
time of the enlistment of this claimant, in February, 1863, there 
was no unfilled call from the Commander-in-Chief. Inasmuch 
as the order above quoted, and all the orders to which my atten- 
tion has been called, are limited in terms to such volunteers as 
were enlisted in accordance with "the order of the Commander- 
in-Chief," I am constrained to find that no bounty was promised 
him by any vote of the city of New Bedford for his enlistment. 

As I have already stated, however, the claim seems to be a 
meritorious one, which you may properly recommend to the Gen- 
eral Court for recognition by special legislation. 



Educational Institution — Petition for Authority to 
GRANT Degrees — Secretary of State Board of Edu- 
cation. 

The secretary of the State Board of Education is not, under St. 1896, c. 381, required 
to take any action upon a petition to tlie Legislature for authority to grant 
degrees in engineering, presented by a corporation chartered under tlie laws 
of the State of Maine. 



To the State 
Board of 
Education. 

11)00 
December 5. 



Your letter of November 13 requires the opinion of the At- 
torney-General as to whether the secretary of the State Board 
of Education is required to take any action upon the petition 
of the Boston Engineering School to the Legislature of Massa- 
chusetts. 

St. 1896, c. 381, provides that whoever intends to present to 
the General Court a petition for the incorporation of an educa- 
tional institution with power to grant degrees, or for an amend- 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 239 

ment to the charter of an existing educational institution so that 
it may have power to grant degrees, shall give notice of such 
petition by publication in such newspapers as the secretary of 
the State Board of Education may direct. 

The petition is for authority to grant degrees in engineering. 
The school in question is chartered by the State of Maine, and 
has no charter in Massachusetts. The petition, therefore, is not 
for incorporation, nor is it a petition for an amendment to a char- 
ter, for that part of the statute providing for amendments of a 
charter obviously refers only to corporations incorporated within 
this Commonwealth. 

It follows that no action is required by you under the statutes. 



Town — Use of Great Pond as Source of Water Supply 
— Public Rights — Fishing. 

A statute authorizing a town to take and hold the waters of a great pond for the 
purposes of a water supply does not take away any public rights therein, 
except so far as they are necessarily lost in the exercise of the right conferred 
upon the town to use the waters of the pond as a source of water supply. 

It follows that the town has no right to obstruct the passage of fish to and from 
such pond, unless its waters are thereby rendered unsuitable for drinking 
purposes. 

Your letter of July 28 states that a conflict of iurisdiction has TotheCom- 

•^ " missiouers 

arisen between the water commissioners of Rockport and your p°Jjg'^]gg 
Board as to the right of your Board to maintain fish ways for '"^'^'^i^jJJ'^*^" 
the entrance of alewives into Cape Pond. Decemb_er6. 

St. 1894, c. 78, authorized the town of Rockport to take and 
hold the waters of Cape Pond, so called, and the water rights 
and water sources connected therewith, and all lands, rights of 
way and easements necessary for holding and preserving such 
water, and for conveying the same to any part of the town of 
Rockport. 

Acting under this statute, the town took Cape Pond, and now 
holds it. I understand from your letter that the pond is, and 
from time immemorial has been, a pond resorted to by alewives 
during the spawning season, which enter through a stream called 
Ale wife Brook. 



240 OPINIONS OF THE ATTORNEY-GENERAL. 

Your letter further states that recently the source of the brook 
has been obstructed by a wire screen, which prevents alewives 
from entering the pond during their spring migration from the 
sea, the result being the destruction of the fishery in the brook 
and in the pond. The obstruction was placed by officers of the 
town. 

It is well settled that the statute authorizing the town to take 
Cape Pond does not take away any public rights in said pond, 
excepting so far as they are necessarily lost in the exercise of the 
right conferred upon the town to use the waters of the pond as 
a source of water supply. The right of fishing remains unim- 
paired, as well as all other public rights, subject to the limita- 
tions I have stated. Rockport v. Webster, 174 Mass. 385. 

It follows that the town has no right to obstruct the passage 
of fish, unless it can show that the waters of the pond are thereby 
rendered unsuitable for drinking purposes. The burden of show- 
ing this fact is upon the town, and, in the absence of any proof 
to that effect, the passage of fish into the pond may not lawfully 
be obstructed. 

Inasmuch as the rights of all parties are derived from the Gen- 
eral Court, I beg to suggest that, if it is found impossible to obtain 
an amicable adjustment of the question, the Legislature should 
be called upon to take such action as may be deemed necessary 
to secure the rights of the public, as well as the rights of the town. 



Massachusetts School Fund — Payment for Benefit of 

Teachers. 

It was not the intention of the Legislature that the payment for the benefit of 
teachers, provided for in St. 1896, c. 408, should be deducted from the half 
of the school fund set apart by St. 1891, c. 177, for the support of the pubhc 
schools. 

The amount required to carry out the purposes of the statute of 1896 is clearly in- 
cluded within the class of expenditures for "other educational purposes," to 
which the other half of such fund is appropriated. 

Aucm^or The division and appropriation of the Massachusetts school 

December 28. fuud was regulated by St. 1891, c. 177. This statute provided 

that: "One half of the annual income of the school fund of the 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 241 

Commonwealth shall be apportioned and distributed [among the 
small towns of the Commonwealth] without a specific appropri- 
ation, for the support of public schools." After specifying in 
detail the proportions to be paid to the several towns of the Com- 
monwealth, the section thereupon provides that: "All money 
appropriated for other educational purposes, unless otherwise 
specially provided, shall be paid from the other half of said in- 
come. If the income in any year exceeds such appropriations, 
the surplus shall be added to the principal of said fund." 

Various statutes make appropriations for educational pur- 
poses from the other half of the income. Among them are the 
salary of the secretary, the support of normal schools, teachers' 
institutes, county teachers' associations, and the Massachusetts 
Teachers' Association. 

St. 1896, c. 408, is as follows: "With the approval of the state 
board of education there may be paid from the income of the 
school fund, to any town having a valuation of less than two hun- 
dred and fifty thousand dollars, a sum not exceeding two doUars 
per week for the actual time of service of each teacher, approved 
by the school committee of said town after special examination 
as to exceptional ability, employed in the public schools of said 
town, which sum shall be added to the salary of each te&,cher.'' 
Although in terms the payment authorized by this statute is 
made to the towns of the Commonwealth, it is in fact for the 
benefit of public school teachers as rewards for meritorious ser- 
vice, and does not benefit the tax payers of the town. The half 
of the school fund, on the other hand, appropriated by the stat- 
ute of 1891 to small towns, goes to the treasury of such towns, 
and is intended to assist them in maintaining their schools. 

The question submitted by your letter of the 12th inst. is 
whether the payment for the benefit of teachers, provided for 
by the statute of 1896, is to be deducted from the whole fund 
before division; and, if not, whether it is to be paid from the half 
to be "distributed without specific appropriation for the support 
of public schools," or whether it shall be paid from the other 
half of the income, "appropriated for other educational pur- 
poses." 



242 



OPINIONS OF THP: ATTORNEY-GENERAL. 



I see no reason to doubt that it was the intention of the Legis- 
lature, in enacting the statute of 1891, to give to small towns 
one-half of the gross income of the school fund, leaving it to 
future Legislatures to provide, from time to time, for the ex- 
penditure of the remaining half for educational purposes, other 
than the support of the public schools. The amount required 
to carry out the purposes of the statute of 1896 should not, there- 
fore, be deducted, in whole or in part, from the half of the school 
fund set apart for the support of public schools. It is clearly 
included in the class of expenditures for "other educational 
purposes," to which the other half is to be appropriated. The 
inducement to good work, held out to teachers by the terms of 
the statute, is an educational purpose, quite distinct from the 
mere support of public schools. 



To the 
Board of 
Harbor and 
Land Com- 
missioners. 

1901 
January 2. 



Commonwealth's Land — Deed — Restriction. 

Where deeds from the Commonwealth to certain grantees, of land formerly be- 
longing to the Commonwealth, contain the stipulation that buildings erected 
thereon "shall not, in any event, be used . . . for any mechanical or manu- 
facturing purposes," any use of the estates in question for other than resi- 
dential purposes would be a violation of the restriction. 

I have your letter of the 26th, submitting to this office certain 
questions with regard to the construction of the stipulations in 
the deeds of the Commonwealth that buildings erected upon the 
Back Bay "shall not, in any event, be used for a stable, or for 
any mechanical or manufacturing purposes." 

It is stated in your letter that the specific inquiry arises from 
a request by certain property owners who desire to learn "whether 
they may lease their houses and premises, without violating the 
stipulations aforesaid, for any of the following purposes: first, 
for decorating of. pottery, with a furnace in the cellar for baking 
it; second, for a boarding-house, on condition of placing a small 
power engine for elevators and steam laundry apparatus, with 
the privilege of extending the business of the laundry; third, 
as a tailoring establishment, with a small power engine for ele- 
vators and to run the sewing machines on all the floors." 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 243 

I am of the opinion that any use of the estates in question for 
other than residential purposes would be a violation of the stip- 
ulations in the deed. Such a use of the premises does not exclude 
the use of engines, boilers and machinery, so far as they may 
properly be employed in connection with the use of the house 
as a residence; otherwise, if for purposes of trade or business. 

If the proposed uses, as above quoted, are for the carrying on 
of a business, and not incidental, merely, to the use of the house 
as a residence, they come within the spirit of the stipulation and 
are barred by its terms. 



State Contracts — Regulations regarding Award — Pref- 
erence OF Home Industries. 

With the exception of Pub. Sts., c. 221, §§ 54-58, there are no laws, rules or regu- 
lations in regard to the awarding of State contracts. 

There is no law containing any provision for the preference of home industry, in 
case some manufacturer of another State of the Union, or a foreign firm, 
offers the lowest bid. 

I have the honor to acknowledge the receipt of the letter writ- to the 

® ^ Governor. 

ten to you by George de Szogyeny, submitting certain inquiries January 4. 
in regard to contracts for public works and also the employment 
of labor therein. 

1. I know of no laws, rules or regulations relating to the award- 
ing of State contracts for the construction of and repairs upon 
public buildings, or for supplying the different articles of manu- 
facture needed by the different departments and by the State 
mihtia, excepting Pub. Sts., c. 221, §§ 54-58. These in substance 
provide that contracts on account of the prisons of the Common- 
wealth shall be made with the warden, in writing, subject to the 
approval of the Prison Commissioners, and, further, that when, 
in the opinion of the commissioners, it can be advantageously 
done, the principal articles purchased for the use of the prisons 
shall be contracted for by the year, and that public notice shall 
be given of the articles needed, the quality and quantity thereof, 
and the time and manner of delivery; such proposals to be in 
writing and sealed. ''The persons offering the best terms, with 



244 OPINIONS OF THE ATTORNEY-GENERAL. 

satisfactory security for the performance, shall be entitled to the 
contract, unless it appears to the commissioners that it is not for 
the interest of the state to accept any of the proposals, in which 
case no offer shall be accepted;" and the warden shall thereupon 
proceed to make contracts in such way as can best be done for 
the interests of the Commonwealth. 

The foregoing answers the inquiry submitted, which relates 
only to State contracts. I may, however, add that a statute 
enacted in the year 1897 regulates with much particularity con- 
tracts made by counties. 

2. There is no law containing any provision for the preference 
of home industry, in case some manufacturer of another State of 
the Union or a foreign firm offers a lower bid. 



Massachusetts Highway Commission — Public Shade Trees 
— Tree Wardens. 

Tree wardens, elected in accordance with St. 1899, c. 330, may not interfere with 
or overrule the authority of the Massachusetts Highway Commission, but, 
subject to such authority, their duty of police jurisdiction over shade trees 
in State highways is the same as that with relation to other public shade trees 
in towns. 

MuBBuchu setts Your letter of November 30 requires the opinion of the Attor- 

commission. uey-Geueral upon the question whether the Massachusetts High- 

jamiiirys. Way Commission have control over trees located on the State 

highways. I assume that the question refers principally to shade 

trees, for there can be no question of your exclusive jurisdiction 

over other trees. 

St. 1899, c. 330, is an act to codify and amend the laws relative 
to the preservation of trees. This act provides for the election, 
in every town, of a tree warden. His duties are thus defined: 
"He shall have the care and control of all public shade trees in 
the town. . . . He shall expend all funds appropriated for the 
setting out and maintenance of such trees. He may prescribe 
such regulations for the care and preservation of such trees, en- 
forced by suitable fines and forfeitures, . . . as he may deem 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 245 

just and expedient. ... It shall be his duty to enforce all 
provisions of law for the preservation of such trees." 

Another section makes it the duty of the tree warden to plant 
shade trees in the public ways when money therefor has been 
appropriated by the town. Section 3 forbids the cutting or re- 
moval of a shade tree, excepting after notice and a hearing. 

This act is general in its terms, and applies to all public shade 
trees. I am of the opinion that it includes shade trees upon 
State highways, and that tree wardens have jurisdiction over 
such trees, excepting so far as the statutes defining the duties of 
the Highway Commission are inconsistent therewith. 

The authority of the commission over trees located on State 
highways is set forth in the following acts and parts of acts : — 

St. 1893, c. 476, § 14, provides that no trees shall be planted 
or removed upon the State highway "except by the written con- 
sent 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 regulations of said com- 
mission." 

St. 1894, c. 497, § 7, is as follows: ''Said commission shall keep 
all state roads reasonably clear of brush, and shall cause suit- 
able shade trees to be set out along said highways when feasible, 
and shall renew the same when necessary." 

These provisions, relating to the authority and duties of the 
Highway Commission, are not repealed by the tree warden act 
above referred to. On the other hand, they do not operate to 
take away all jurisdiction of the tree warden in State highways. 
He may not interfere with or overrule the authority of the Mas- 
sachusetts Highway Commission, but, subject to their rights, 
his duty of police jurisdiction over shade trees in State highways 
is the same as that with relation to other public shade trees in 
the town. 



24G OPINIONS OF THE ATTORNEY-GENERAL. 



State Officers — Presidential Electors — Oath of Office. 

Since the duty of presidential electors is to the State, their function being to cast 
the vote of the State in its behalf and as its agents, they are State officers, 
and must take and subscribe the oaths required thereof by the Constitution. 

The provisions of the Constitution of the United States relating to such electors 
merely establish a method by which the States may exercise their right of 
voting in proportion to their population. 

To the I am informed that the opinion of the Attorney-General is re- 

''■**'i 9 quested upon the question whether presidential electors should 

take and subscribe the oaths required by the Constitution of 

Massachusetts, c. 6, Art. I, as amended by Art. VI. of the 
Amendments. These articles provide, in substance, that the 
oaths as set forth therein "shall be taken and subscribed by 
every person chosen or appointed to any office, civil or military, 
under the government of this Commonwealth, before he shall 
enter on the duties of his office." The precise question, there- 
fore, is, whether presidential electors are officers under the 
government of this Commonwealth within the meaning of the 
language quoted. 

The office of presidential elector is created by the Constitution 
of the United States, which provides, in Art. II., § 1, as follows: 
"Each state shall appoint, in such manner as the legislature 
thereof may direct, a number of electors, equal to the whole 
number of senators and representatives to which the state may 
be entitled in the congress." 

Under the authority of this article, the State of Massachusetts 
has by legislative enactment (Pub. Sts., c. 9, § § 9-18) provided 
that electors shall be chosen by the people of the Commonwealth 
at the time of the annual election in November. It by no means 
follows, however, that, because they are chosen by the people of 
the Commonwealth under the provisions of a State statute, they 
are State officers. " Representatives to the Congress of the United 
States are also so chosen; but it would scarcely be contended 
that the latter are State officers, or that they are required to take 
the oaths prescribed by the Constitution of Massachusetts for 
such officers. On the other hand, it does not necessarily follow 
that, because the authority for the choice of presidential electors 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 247 

is found in the Constitution of the United States, they are, there- 
fore. Federal officers. 

I apprehend that the true criterion is this : Do they perform a 
State or a Federal duty? An examination of the provisions of 
the Constitution of the United States, relating to the election of 
President and Vice-President, makes it plain that it was the in- 
tent of the framers of that mstrument that the President and 
Vice-President should be elected by the States of the Union, 
rather than by a national popular vote. It is not necessary, even, 
that there be a popular vote in each State, for, as is well known, 
electors, in one State at least, were for many years chosen by 
its Legislature. 

The provisions relating to presidential electors merely establish 
a method by which the States in proportion to their population 
shall exercise their right of voting. The function of the electors 
is to cast the vote of the State in its behalf and as its agents. 
Their duty is to the State, and is performed for the State. The 
only duty they owe to the Federal government is to report the 
result of their action to the Congress of the United States. They 
are, therefore. State officers. 

Other provisions of the Constitution confirm this view. The 
article above quoted provides that electors shall not hold any 
" office of trust or profit under the United States." If the framers 
of the Constitution had regarded electors as Federal officers, the 
language undoubtedly would have been "shall hold no other 
office," etc. There is no other provision relating to the qualifica- 
tions of electors. Furthermore, there is no provision in the Con- 
stitution for payment for their services from the treasury of the 
United States, nor is there any reservation of any right by Con- 
gress to control the manner of their election. The only right re- 
served to Congress in that respect is to determine the time of 
choosing the electors and the day on which they shall give their 
votes. U. S. Const., Art. II., § 1. 

On the other hand, representatives to Congress must be chosen 
"by the people of the several states" (Art. I., § 2), and at such 
time and in such place and manner as may "be prescribed in 
each state by the legislature thereof" (Art. I., § 4); but the 



248 OPINIONS OF THE ATTORNEY-GENERAL. 

latter article further provides that Congress may at any time by 
law make or alter such regulations. The qualifications of repre- 
sentatives are fixed by the Constitution, and § 6 of Art. I. pro- 
vides that they shall receive compensation for their services, to be 
ascertained by law and paid out of the treasury of the United 
States. 

For these reasons I am of the opinion that presidential electors 
are within the description of those officers who are required under 
the Constitution of Massachusetts to take and subscribe the 
oaths therein specified. 



Public Boxing Matches — Constitutional Law. 

St. 1896, c. 422, provides penalties against two classes of offenders: first, those who 
engage in public boxing matches of all kinds; and, second, those who engage 
in professional boxing in public or private. 

In the construction of statutes a limiting clause is to be restrained to the last ante- 
cedent, unless the subject-matter requires a different construction. 

Attorney of**^^ Replying to your oral inquiry of this morning, I beg to say 
Dfafrirt'''^" that iu my opinion St. 1896, c. 422, provides penalties against 
jauli^iryQ. two classcs of offenders, to wit (using the language of the stat- 
ute): first, "whoever engages in or gives or promotes a public 
boxing match or sparring exhibition," and, second, whoever "en- 
gages in a private boxing match or sparring exhibition, for which 
the contestants have received or have been promised any pe- 
cuniary reward, remuneration or consideration whatsoever, either 
directly or indirectly." In other words, the two evils aimed at 
by the Legislature were public boxing matches of all kinds, and 
professional boxing in public or in private. 
Several reasons lead me to this conclusion : — 
1. The history of the act, as appears by the Legislative Journal, 
shows that the bill first introduced and referred to the committee 
upon the judiciary (House Doc. No. 16) was a bill to prohibit 
public boxing matches. It provided, in substance, that whoever 
should engage in a public boxing match or sparring exhibition 
should be punished, etc. The clause relating to private boxing 
matches, in which parties contested for pay, was inserted by the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 



249 



committee who reported the bill back to the House in substan- 
tially the form in which it now appears. 

2. It is a general rule of law that in the construction of statutes 
a limiting clause is to be restrained to the last antecedent, unless 
the subject-matter requires a different construction. Cushing 
V. Worrick, 9 Gray, 382. Vid. also Commonwealth v. Kelley, 111 
Mass. 221. The rule so laid down governs this statute, unless 
the plain language of the Statute requires otherwise. 

3. The evil sought to be remedied by the Legislature was that 
of public boxing matches. If such exhibitions are injurious to 
public morals, as the Legislature seems to have considered, they 
are equally so whether the contestants are paid or not. Such a 
match would be conducted in precisely the same manner and with 
the same results, whether the boxers were fighting for money or 
not, excepting, perhaps, that in the former case they might con- 
test with more zeal, although that does not necessarily follow. 
The clause relating to private exhibitions was obviously designed 
to permit athletic clubs to further the presumed purposes of their 
organization by allowing their members and other persons to 
spar before members of the club and their guests, provided the 
sparring contest did not become a prize fight because of pro- 
fessionalism. 



Board of Harbor and Land Commissioners — Authority 

TO ESTABLISH BOUNDARY LiNES IN TiDE WaTERS. 

The Board of Harbor and Land Commissioners is not authorized, under St. 1881, 
c. 196, § 1, to establish boundary lines in tide waters between towns created 
after the passage of such statute. 



mission. 
1901 
February 1. 



I am of opinion that St. 1881, c. 196, § 1, does not give the TotheTopo 
Board of Harbor and Land Commissioners authority to estab- survey com 
lish boundary lines in tide waters between towns created after 
the passage of the act. If this be so, the Board has no right to 
establish the line between Bourne and Sandwich, the town of 
Bourne having been created after the passage of the act, and 
legislative action is necessary to establish such line. 



250 OPINIONS OF THE ATTORNEY-GENERAL. 

No controversy arises upon the Buzzard's Bay side, the line 
having been fixed by the Legislature. I may add that it would 
be absurd to suppose that the Legislature intended to permit 
any part of the shore line of Bourne to remain in the jurisdic- 
tion of Sandwich, notwithstanding the set-off of the town of 
Bourne. 



To the 
Controller 
of County 
Accounts. 

1901 
February 1. 



Dogs — Injury to Domestic Animals — "Worrying." 

Under Pub. Sts., c. 102, § 98, as amended by St. 1889, c. 454, pro\-iding compensa- 
tion for loss "by the worrying, maiming, or killing" of domestic animals by 
dogs, any sort of attack by a dog, intended to frighten a domestic animal, is 
" worrying" within the meaning of the statute. 

Your letter of January 3 states the following case : a man was 
driving a horse on the highway when a dog suddenly ran out and 
barked at the horse, causing him to rear, and when the horse's 
feet came down, one of his legs was broken, so that it became 
necessary to kill him. 

The opinion of the Attorney-General is required upon the 
question whether, upon these facts, the county is liable for dam- 
ages for the killing of the horse, under the provisions of Pub. Sts., 
c. 102, § 98, as amended by St. 1889, c. 454. 

The statute provides that whoever suffers loss by the worry- 
ing, maiming or killing of his sheep, lambs, fowls or other do- 
mestic animals, by dogs, may inform the officer of police; and 
that thereupon appraisers shall be appointed to appraise the 
damage, and that a certificate of the damages found shall be re- 
turned to the county treasurer, and the treasurer shall submit 
the same to the county commissioners, who, after examination, 
shall issue an order upon the treasurer for all or any part thereof 
as justice and equity may require. 

It is settled that a horse is a domestic animal within the mean- 
ing of this statute. Oshorn v. Selectmen of Lenox, 2 Allen, 207. 
Whether the act of the dog in the case in question could be char- 
acterized as "worrying," within the meaning of the word as used 
in the statute^ is a more difficult question. Undoubtedly the 
meaning of the word as defined by lexicographers imputes seiz- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 251 

ing and biting. In Osborn v. Lenox the horse was bitten by the 
dog, and no question as to whether the acts of the dog consti- 
tuted "worrying" arose. 

I am of opinion, however, that any sort of attack by a dog, 
intended to frighten a domestic animal, is "worrying," within 
the meaning of the statute. It is not necessary to the remedial 
purpose of the statute that injuries for which compensation is to 
be made be limited to those caused by actual seizing and biting. 
Indeed, in the case of some animals, as, for example, fowls, such 
a limitation of the purpose of the meaning of the statute would 
entirely defeat its purpose. The same word in statutes of other 
States has been held to mean "running after, chasing, and bark- 
ing at." Marshall v. Blackshire, 44 la. 475. See also Campbell 
V. Brown, 1 Grant (Pa.), 82; Johnson v. McConnell, 80 Cal. 545. 

I am of opinion, therefore, that the claim in question was one 
which could properly be allowed under the statute. 



Insurance — Change from Assessment to "Old Line" 
Business — Lien on Policy — Reserve — Asset. 

Where an insurance company, in changing from an assessment to a level premium 
business, enters into an agreement with the insured, by which the latter ex- 
changes an assessment for a new level premium policy, as of the date of the 
original insurance, giving to the company a lien upon the new policy for the 
amount of the reserve which would have accumulated if such policy had been 
taken out at the time when the assessment insurance was taken, the amount 
of the lien is not an asset of the company, and is not to be credited to it as 
such. 

It is therefore the duty of the Insurance Comniissioner to regard the contract as a 
contract of insurance for the face value of the policy, less the amount of the 
lien created thereon. 

Your letter of January 4, after quoting St. 1900, c. 363, provid- ^nVe^g^m!'''"" 
ing that the Insurance Commissioner shall annually compute the '"'^^1^°®''- 
reserve liability of insurance companies and examine the financial ^ I^^ 
status of such companies, states that certain insurance companies 
which, under the laws of Massachusetts, have been compelled 
to change from assessment to level premium business, have 
attempted to meet the difficulties arising from such change in 
the following manner : — 



252 OPINIONS OF THE ATTORNEY-GENERAL. 

No reserve was accumulated during the continuance of the 
assessment policies; and if such policies were to be exchanged 
for level premium policies with the rate of premium fixed as of 
the age when the original policy was taken out, the companies 
would not have, and could never accumulate, a reserve sufficient 
to protect the policy under the requirements of the Massachu- 
setts statutes. Accordingly, at the time of such exchange they 
induced the insured to enter into an agreement by which the 
company was given a lien upon the new policy for the amount of 
the reserve which they ought to have on hand, regarding the 
level premium policy as having been taken out at the time the 
assessment insurance was placed. 

The result of this arrangement is that a policy, for example, 
which is nominally for $1,000, has charged against it, by the 
assent of the insured, a sum of money (say, for example, $300) 
representing the amount of reserve which the company should 
have on hand, assuming it to have been taken out when the as- 
sessment insurance policy was originally taken out. 

The question submitted by your letter is whether you shall, 
as contended by such companies, compute the amount of insur- 
ance outstanding at the face value of the policy, and include 
among the assets the liens in question. 

The face value of the policy is reduced by the exact amount of 
the lien so created; so that, in the supposed case above stated, 
it becomes, in effect, a contract for $1,000 less $300. This, obvi- 
ously, is nothing more than a contract to pay $700. The policy 
should, therefore, be regarded, for the purposes of your valua- 
tion, as a policy for $700. It follows that the amount of the lien 
is not an asset in the hands of the company, and is not to be cred- 
ited to it as such. 

It is contended by the companies that the transaction in ques- 
tion is, in effect, a loan upon the security of the policy, and that 
it is to be so regarded in your computation. The difference, 
however, between such loans and the arrangement in question 
illustrates and confirms the soundness of the views I have ex- 
pressed. 

The real face of a policy of insurance is the amount which the 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 253 

company would be bound to pay if the insured should die the 
day the policy is taken out. This amount is not varied by sub- 
sequent arrangements between the insured and the company. 
If, therefore, after the pohcy is written and dehvered, the com- 
pany makes a loan, it does not diminish the face of the pohcy and 
has no effect upon the valuation. 

But, under the arrangement in question, the pohcy in its incep- 
tion is insurance, not for the face value of the pohcy, but for the 
net amount after deducting the amount of the lien. Real loans 
are assets because the company's habihty is dimmished by the 
amount of each loan; but these alleged loans are not assets be- 
cause the company was never liable for them. 

I am of opinion, therefore, that it is your duty to decline 
to inflate the two sides of the account by taking the face of the 
policy, upon the one hand, and regarding the lien as an asset, 
upon the other hand; but that you are to regard the contract 
what it is in fact, to wit, insurance for the face of the policy less 
the amount of the hen created thereon. 



Firemen — "Firemen's Relief Fund" — Persons impressed 
INTO Service of Regular Fire Department. 

Persons who have been impressed into the ser\'ice of a regular organized fire de- 
partment of a city or town, and receive injuries while in the performance of 
the duties required of them, are not entitled to relief under the pro\'isions of 
St. 1892, c. 177, relating to the "Firemen's Relief Fund." 

Your letter of January 21 requires my opinion upon the ques- to the Board 
tion whether certain persons referred to in the papers annexed IJ? "^1^°^ ^'^'^ 
to the letter are entitled to relief under the provisions of St. 1892, ««"|oT''"**" 
c. 177, relating to the firemen's relief fund, of which your Board Fe bruary s. 
has the disbursement. 

It appears by the documents submitted that a disastrous fire 
occurred in Foxborough in June last. Foxborough is a town 
which had at the time an organized fire department. Some of 
the regular members of the fire department were absent, and in 
consequence of the fierceness of the fire the men in question were 



254 OPINIONS OF THE ATTORNEY-GENERAL. 

impressed into the service by the engineers, and received their 
injuries while performing the duties of firemen. 

The chapter in question provides, in § 2, that the fund shall 
be used "for the relief of firemen." It provides further, in § 4, 
that members of incorporated protective departments shall be 
eligible for benefits as well as "any person doing fire duty at the 
request, or upon the order of the authorities of any town having 
no organized fire department." 

It is obvious that the word "firemen " in the second section does 
not mean any person who is engaged in extinguishing a fire. 
Otherwise, there would have been no occasion for the language 
above quoted in the fourth section, which includes, in addition 
to "firemen," persons doing fire duty where there is no organized 
fire department. It follows that the meaning of the word "fire- 
men" must be sought in the statutes. 

Pub. Sts., c. 35, §§ 28-39, inclusive, authorize the selectmen 
of a town to establish a fire department, and provide for the 
method of creating the same. Section 31 limits the number of 
men to be employed on the several engines, hose carriages, and 
hook and ladder carriages, as well as in each fire company. These 
companies, by § 32, may organize, elect officers, establish rules 
and regulations, and annex penalties for the breach of the same. 
They may also have certain exemptions from other public duties, 
such as jury duty (Pub. Sts., c. 170, § 2). These rights and privi- 
leges are doubtless conferred in consideration of the fact that 
they have volunteered to hold themselves in readiness at all 
times, seasonable or unseasonable, to perform what may often 
be a hazardous and difficult task. 

I see no reason to doubt that the purpose of the statute estab- 
lishing the firemen's relief fund was further to recognize their 
services by compensating them for injuries received in the per- 
formance of their duty. It was the intent of the Legislature to 
encourage men to enlist in organized fire departments by holding 
out the inducement of compensation. 

It is otherwise with one who is impressed into service, upon a 
single occasion, and who has not chosen to connect himself regu- 
larly with the fire department. It seems to have been the pur- 



HOSEA M. KXOWLTOX, ATTORNEY-GENERAL. 255 

pose of the Legislature, carefully to exclude such persons and to 
extend the relief provided by the statute only to regular mem- 
bers of the fire department, where there is a fire department; 
the only exception being in favor of persons doing fire duty in 
towns where there is no such organized fire department. I am 
led to the conclusion, therefore, that however meritorious the 
services of the persons in question may have been, they are not 
entitled to relief from the fund in charge of your Board. 



Board of Harbor and Land Commissioners — Cape Cod 
Canal — Approval of Plans. 

The charter of the Cape Cod canal, St. 1899, c. 448, § 4, imposes upon the Board of 
Harbor and Land Commissioners the duty of determining in what manner 
the canal shall be constructed, including all questions relating to locks, tide- 
gates and other such structures. 

The charter of the Cape Cod canal, St. 1899, c. 448, provides to the 
in § 4 that the corporation shall file with your Board "a plan of n.-iVborand 

^ ^ -^ ^ . Land Com- 

the proposed location, and a plan of the proposed construction niissioTiers. 
thereof." It is the duty of the Board thereupon to hear the par- February n. 
ties, require such modification, if any, as it may desire, and to 
approve the plans as filed or as modified. 

Section 6 provides that the joint Board of Harbor and Land 
Commissioners and the Railroad Commissioners shall "deter- 
mine at what point or points the railroad of the Old Colony Rail- 
road Company shall cross said canal by a drawbridge or bridges, 
or by a tunnel or tunnels constructed under said canal." The 
section further provides that the canal company shall construct 
its canal "with such structures and appliances for its protection 
and use as said joint board may order, together with such bridge 
or bridges, tunnel or tunnels, ferries and changes of highways, 
under the supervision of said joint board, as shall be in accord- 
ance with plans approved by them and in conformity with such 
orders as they may make." 

The precise question submitted by your letter of February 5 
is as follows: "Should this Board, under § 4, approve a plan of 



256 OPINIONS OF THE ATTORNEY-GENERAL. 

construction which did not include a lock, or locks, or gates, 
would it be in the power of the joint Board, under § 6, to order 
such structures to be built?" 

I very much doubt whether your Board has the right to my 
opinion upon the question submitted. It is rather for the joint 
Board, if a situation shall arise before that Board which will 
make it material. But it may not be amiss for me to submit my 
views as to the duty of your Board under § 4, above quoted. It 
imposes, in my opinion, upon your Board the duty of determin- 
ing in what manner the canal shall be constructed. This includes 
all questions relating to locks, tide-gates and other such struc- 
tures. You are to have in view the use of the canal for purposes 
of navigation, and to determine what method of construction 
will be the safest and most convenient in view of all the facts 
and probabilities, including the probable rate of tide in the canal, 
and how far its current may make navigation dangerous if unre- 
strained by structures intended to prevent such movement. 

You have no means of knowing, of course, whether the joint 
Board will order the crossing in question to be effected by a tun- 
nel or a bridge, but I assume that it is not unreasonable for you 
to anticipate that bridges, either for the railroad or for highways, 
will be necessary. In all events, the question of such probability 
is before you, and it is your duty to order the construction of the 
canal in such manner as will provide for all these circumstances 
and probabilities. The determination, therefore, of the question 
of locks and gates is confided to the discretion of your Board. 

The obvious purpose of § 6 is to submit to the joint Board all 
questions concerning the crossing of the canal by the railroad 
company. These questions are submitted to the joint Board 
rather than to your Board, for the reason that they involve on 
the one hand the considerations affecting railroad transporta- 
tion, and those affecting navigation on the other. 

The precise question whether the joint Board will have juris- 
diction to order the construction of locks, in case you shall have 
approved plans which do not call for such structures, is one which 
does not concern, in my judgment, your duty under § 4, and 
which may well be determined when, if ever, it arises. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 257 



Savings Banks — Authorized Investments — Guaranty. 

An agreement to purchase first mortgage bonds for their face value at the time and 
place of the maturity of such bonds is not equivalent to a guaranty, as re- 
quired by St. 1894, c. 317, § 21. 

Among the investments by savings banks in this Common- to the 
wealth authorized by St. 1894, c. 317, § 21, are the first mort- missioners of ' 

. . . Savings 

gage bonds of certain railroad companies, ''guaranteed" by ^'^^^^^ 
certain other railroad companies (paragraph b, third clause). Fe bruary 12. 

What professes to be the guaranty of a bond by a railroad 
company coming within the description of the act is, in terms, 
an agreement to purchase the bond at its face value at the time 
and place of the maturity of the bond. The question submitted 
by your Board is whether this agreement is equivalent to a guar- 
anty. 

I have already advised your Board (1 Op. Atty.-Gen. 149) 
that any agreement which is equivalent in law to a guaranty is 
within the spirit of the statute. I am unable, however, to inter- 
pret the agreement in question as equivalent to a guaranty. The 
essence of the agreement is time and place, whereas a guaranty 
is not so limited. If the holder of the bond fails to present it for 
purchase on the day and at the place named in the agreement, 
the promisor is thereafterwards discharged. It would be other- 
wise as to a guaranty. 



Cape Cod Canal — Harbor and Land Commissioners — Locks 
— Jurisdiction of Joint Board. 

Under the provisions of the charter of the Boston, Cape Cod and New York Canal 
Company (St. 1899, c. 448), the jurisdiction of questions of location and con- 
struction is confided to the Board of Harbor and Land Commissioners; the 
joint Board of Harbor and Land Commissioners and Railroad Commissioners, 
therefore, has no jurisdiction over the question of locks, except in the matter 
of the crossing of the canal by the Old Colony Railroad Company, as provided 
in§ 6. 

Your letter of March 14 states that the plans of the Boston, Tothe 

'^ Board of 

Cape Cod and New York Canal Company have been approved Railroad com. 

^ 1 ./ 1 i missioners. 

by the Board of Harbor and Land Commissioners, in accordance ^p^ne. 



258 OPINIONS OF THE ATTORNEY-GENERAL. 

with the provisions of the charter of the company (St. 1899, c. 
448, § 4), and are now before the joint Board of Harbor and Land 
Commissioners and the Railroad Commissioners for action by 
the Board under the provisions of § 6 of the same statute. Your 
letter further states that the Board of Harbor and Land Com- 
missioners approved the plans "without having determined the 
necessity of locks," and requires the opinion of the Attorney- 
General upon the question whether, in view of that fact, the joint 
Board has jurisdiction of the question of locks. 

The jurisdiction of the joint Board is, in my judgment, in no 
way dependent upon the action of the Board of Harbor and Land 
Commissioners. The charter in separate sections (4 and 6) clearly 
points out the duties devolving upon each Board, and the author- 
ity and responsibility of each Board are to be found in those pro- 
visions. Yours is not a board of appellate but rather of original 
jurisdiction. 

In a letter to the Board of Harbor and Land Commissioners 
dated February 11, 1901 (2 Op. Atty.-Gen. 255), I pointed out 
what appeared to me to be the duties of that Board in these 
words : "You are to have in view the use of the canal for purposes 
of navigation, and to determine what method of construction will 
be the safest and most convenient in view of all the facts and 
probabihties, including the probable rate of tide in the canal, and 
how far its current may make navigation dangerous if unrestrained 
by structures intended to prevent such movement." 

To these views, after the re-examination made necessary by 
the request of your Board for an opinion, I still adhere. The 
scheme of the statute, although not always expressed in the clear- 
est terms, appears to me to be as follows: the company char- 
tered must, within four months, file with the Harbor and Land 
Commissioners a plan of the proposed location, and "a plan of 
the proposed construction thereof." I see no reason to doubt 
that the word "construction" necessarily includes and was in- 
tended by the Legislature to include all things appertaining to 
the construction of the canal, including the question of locks, 
which, I take it, is one of the most important questions touching 
the construction of a canal. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 259 

Before filing such plans the company must deposit with the 
Treasurer of the Commonwealth the sum of two hundred thou- 
sand dollars, to be held as security for the payment of damages 
occasioned by the taking of land. If the plans are not approved 
by the Board of Harbor and Land Commissioners, or if the mod- 
ifications ordered by them are not acceptable to the company, 
it may withdraw its deposit and forfeit its rights under the char- 
ter (§ 23). But if, on the other hand, it is content with the plans 
of location and construction as finally approved by the Harbor 
and Land Commissioners, the deposit cannot be withdrawn, and 
whatever future action the company may take, its deposit must 
remain in the treasury. 

It is apparent, therefore, that the question of the approval of 
the plans by the Harbor and Land Commissioners is one of vital 
importance to the company. If, for example, the plans as finally 
adopted by that Board require a method of construction which, 
in the opinion of the company, is too expensive to be profitable, 
the opportunity is given it to abandon its project and receive its 
money back. It has a right, therefore, to know, before going 
further, just what is required of it in the way of location and 
construction. 

Furthermore, the jurisdiction of the question of location and 
construction is confided to a Board which is presumed to be espe- 
cially familiar with that subject, and which can adequately repre- 
sent the interests of the Commonwealth and of the public. It is 
the duty, therefore, of the Harbor and Land Commissioners to 
settle all questions of construction, with one exception. That 
exception is the matter of the crossing of the canal by the rail- 
road company. The jurisdiction of this question is given to a 
joint Board, consisting of the Railroad Commissioners on the 
one hand and the Harbor and Land Commissioners on the other, 
it being presumed that conflicting questions between the railroad 
and the canal are properly submitted to such a tribunal. Section 
6, therefore, provides that such joint Board shall "determine 
at what point or points the railroad of the Old Colony Rail- 
road Company shall cross said canal by a drawbridge or bridges, 
or by a tunnel or tunnels constructed under said canal." Such 



260 OPINIONS OF THE ATTORNEY-GENERAL. 

joint Board, after due notice, "shall determine said questions, 
and the decision of a majority of said joint board shall be final. 
Said canal company shall construct its canal with such struc- 
tures and appliances for its protection and use as said joint Board 
may order, together with such bridge or bridges, tunnel or tun- 
nels, ferries, and changes of highways, under the supervision of 
said joint Board, as shall be in accordance with plans approved 
by them." 

All questions, therefore, which may arise concerning the man- 
ner of the crossing of the canal by the railroad company, and 
they only, are within the jurisdiction of the joint Board. 

The determination of these questions may incidentally involve 
the further question whether, for the protection of the canal on 
the one hand or the railroad on the other, locks may be required, 
and it is in that aspect only that your Board has to determine 
any question concerning locks. Questions of navigation, of the 
velocity of the tide, and all other matters incidental to the ques- 
tion of the necessity of locks, are presumed to have been deter- 
mined by the Board of Harbor and Land Commissioners before 
the plans come to your Board. 

I do not forget that the words above quoted, "said canal com- 
pany shall construct its canal with such structures and appliances 
for its protection and use as said joint Board may order," taken 
alone, might seem to give original jurisdiction to your Board of 
the question of locks. But I cannot believe the Legislature in- 
tended a divided responsibility. As I have already said, each 
Board has its own duties in the matter. Your Board is con- 
cerned only with the crossing of the railroad, and the words 
"structures and appliances" must be taken in connection with 
the rest of the section to refer only to the matters to which the 
section, as a whole, relates. This is still more apparent from the 
fact that after action by the Board of Harbor and Land Com- 
missioners, the company, having elected to proceed, is not at 
liberty to withdraw and to receive back its deposit. It is not to 
be presumed that the Legislature having once given an oppor- 
tunity to the company to take back its deposit and withdraw 
from the enterprise, if the conditions as to construction imposed 



HOSEA M. KNOWLTOX, ATTORXEY-GENERAL. 261 

by the Board having jurisdiction of the matter are too onerous, 
should authorize another Board to reimpose the same conditions, 
when the time for withdrawal has elapsed. 

I am of opinion, therefore, that the question of locks is not 
before your Board excepting so far as the necessity of them may 
arise in consequence of the method of crossing by the railroad 
company determined upon by the Board may require structures 
for the protection of the canal and of the railroad company. 



Street Railways — Transportation of Letter Carriers — 
Constitutional Law. 

St. 1897, c. 500, § 10, providing tliat the Boston Elevated Railway Company may 
establish a five-cent fare, and that such fare shall not be reduced by the Legis- 
lature for a period of twenty-five years, constitutes a contract between the 
Commonwealth and the company. A bill, therefore, requiring all street rail- 
ways within the Commonwealth to furnish transportation to letter carriers 
on duty, upon payment to sucli companies by the United States of a fixed 
annual allowance, would be unconstitutional, if it reduced fares below five 
cents, in so far as it related to the Boston Elevated Railway Company, as a 
law impairing the obligation of contracts. 

I have the honor to acknowledge the receipt of a copy of an to the senate. 
order adopted by the honorable Senate on the tenth day of April Aprii 1 2. 
inst., requiring the opinion of the Attorney-General upon the 
constitutionality of the bill relative to the transportation of let- 
ter carriers by street railway companies (printed as House Docu- 
ment No. 257), as amended by the Senate. 

The copy of the bill submitted in substance requires street 
railway companies operating within the Commonwealth to fur- 
nish transportation to all letter carriers of the United States 
while in uniform and in the performance of their duties, upon 
the payment each year, to the company or companies furnishing 
said transportation, by the United States, of an amount equal 
to the so-called "standing allowance for car fare," as determined 
for the postal fiscal year ending June 30, 1901 (plus any addi- 
tional sum that may be hereafter granted). 

No statement of facts accompanies the order. I presume, how- 
ever, I am expected to assume that if the bill becomes a law, its 



262 OPINIONS OF THE ATTORNEY-GENERAL. 

provisions will require transportation of letter carriers at a rate 
less than that collected from ordinary passengers; for if the sum 
allowed by the United States is equal to or greater than the reve- 
nue derived by street railway companies from transportation of 
letter carriers, no possible constitutional question can arise. In 
that event, indeed, there would seem to be no occasion for the 
passage of the act. 

St. 1897, c. 500, § 10, provides that the Boston Elevated Rail- 
way Company, which is the lessee of the West End Street Rail- 
way Company, "may establish and take a toll or fare, which shall 
not exceed the sum of five cents for a single continuous passage 
in the same general direction upon the roads owned, leased or 
operated by it; and this sum shall not be reduced l3y the Legis- 
lature during the period of twenty-five years, from and after the 
passage of this act." A proviso follows which, however, is not 
material to the question submitted. This section, in my judg- 
ment, amounts to a contract between the Commonwealth and 
the Boston Elevated Railway Company, and that (excepting 
under the terms of the proviso referred to) the Legislature may 
not, during the term named in the statute, lawfully reduce fare 
below the sum of five cents fixed by the statute, without violat- 
ing the provision of the United States Constitution (Art. I., § 10), 
which forbids a State to pass a law impairing the obligation of 
contracts. 

I am of opinion, therefore, that the bill, so far as it concerns 
the Boston Elevated Railway Company, is unconstitutional. 

I apprehend that as to other street railways within the Com- 
monwealth the question of the constitutionality of the bill turns 
upon two propositions, to wit: first, whether the bill, if it be- 
comes a law, will result in reducing the earnings of the company 
to such an extent that it will operate to deprive them of their 
property without due process of law within the meaning of the 
Fourteenth Amendment of the Constitution of the United States; 
and second, whether it denies the equal protection of the laws 
guaranteed to citizens in the same amendment by discriminat- 
ing in favor of a certain class. 

In 1900 a statute (c. 197) was enacted by the Legislature re- 



I 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 263 

quiring the transportation of scholars of the pubhc schools for 
one-half of the rate charged to other passengers. A proceeding 
has been begun in the Circuit Court of the United States to test 
the constitutionality of this statute upon the grounds above 
stated. I have appeared in behalf of the Commonwealth, and 
the case is still pending and undetermined. The circumstances 
of that case are not in all respects the same as those which would 
arise under the bill now submitted, but in general the determi- 
nation of the questions raised will depend upon the same consid- 
erations. 

It will be my duty in that case to contend before the court that 
the statute is constitutional. I am not, therefore, in a position 
to consider the question with that degree of impartiality which 
should be required of the Attorney -General in advising your hon- 
orable body upon questions of law. For these reasons, I beg to 
be excused from answering the questions submitted, so far as 
relates to a railway company other than the Boston Elevated 
Railway Company, before the determination by the court of the 
case now pending. 



Street Railways — Common Carriers of Goods — Consti- 
tutional Law. 

Legislation authorizing street railway companies to use their tracks in the public 
highway as common carriers of goods, wares and merchandise, imposes no 
new servitude upon the owner of the fee of such highway, and is therefore 
constitutional. 

I have the honor to acknowledge the receipt of an order adopted ^o^the senate. 
by the honorable Senate on the 18th inst., requiring the opinion Aprn23. 
of the Attorney-General as to the constitutionality of legislation 
which authorizes street railway companies to use their tracks in 
the public highways as common carriers of goods, wares and 
merchandise. The only question involved is whether such use 
of the tracks is a servitude not included in the original taking of 
the street for a public highway. If it was not so included, then 
the tracks could not be so used without additional compensation 
to the owner of the fee of the street. 



264 OPINIONS OF THE ATTORNEY-GENERAL. 

It has been determined by the Supreme Judicial Court in 
Pierce v. Drew, 136 Mass. 75, that the erection and use of a line 
of electric telegraph upon a public way, and in Howe v. West End 
Street Railway Company, 167 Mass. 46, that the maintenance of an 
electric railway operated by the overhead trolley system and used 
for the carriage of passengers, are among the servitudes to which 
the land of the owner becomes subject in consequence of the 
original taking for the highway. In White v. Blanchard Co., 178 
Mass. 363, the construction and use of a horse railroad for freight 
purposes on a highway was held not to entitle the owner of the 
fee in the street to damages. In the opinion in Howe v. West E7id 
Street Railway Company, it was said by Chief Justice Field that 
''the use made of a pubHc way in the operation of an electric 
railway is of the same general kind as that for which the way was 
originally laid out, viz., the transportation of persons and things 
from place to place along the way." 

Following the authority of these decisions, which, in my judg- 
ment, are decisive of the present inquiry, I am of opinion that 
legislation authorizing street railway companies to use their 
tracks in the public highway as common carriers of goods, wares 
and merchandise, would be constitutional. 



Constitutional Law — Rate of Wages on Public Works 
— Cities and Towns. 

The Legislature may pro\'ide that whenever the Commonwealth, or any county 
therein, enters into a contract with any person, firm or corporation, for the 
doing of public work of any nature, it shall be stipulated that such person, 
firm or corporation shall pay employees no lower rate of wages per day than 
is paid by the Commonwealth, or by such county, for similar work; but such 
a provision, as affecting cities and towns, would be unconstitutional, and can- 
not be cured by making the provision operative only upon acceptance by a 
majority of the voters of such cities and towns. 

To the House I have the honor to acknowledge the receipt of a copy of an 

of Represeuui- ^ '■ ^ ^ 

"^m order adopted by the House of Representatives March 20, 1901, 

Apni^. requiring the opinion of the Attorney-General upon the ques- 

tion whether the several provisions of House Bill No. 123 are in 



I 



HOSEA M. KKOWLTOX, ATTORNEY-GENERAL. 265 

accord with the Constitution of the Commonwealth and of the 
United States. The bill in question provides, in substance, in 
§ 1, that whenever the Commonwealth, or any county, city or 
town therein, enters into a contract with any person, firm or 
corporation for the doing of public work of any nature, it shaU 
be provided in said contract that such person, firm or corpora- 
tion shall pay his or their employees no lower rate of wages per 
day than is paid by the Commonwealth, or by any such county, 
city or town, for similar work. Section 2 fixes certain limita- 
tions as to the hours of labor to be required by contractors 
under the same circumstances. Section 6 provides that the act 
shall not take effect, as to contracts made by the Commonwealth, 
until its acceptance by the voters of the Commonwealth; and as 
to contracts made by the city or town, it shall not take effect 
unless accepted by a majority of the voters of such city or 
town. 

I see no reason to doubt that, so far as the act applies to con- 
tracts made under the authority of the Commonwealth, it is con- 
stitutional. The State as a sovereign may undoubtedly regulate 
the terms upon which its agents shall employ labor. No ques- 
tion can arise as to the rights of the contractor, for he is under 
no obligations to contract. If he does, he must submit to the 
terms imposed by the other party to the contract, to wit, the 
Commonwealth or its agents. 

The same considerations undoubtedly govern the question of 
the constitutionality of the statute so far as it applies to coun- 
ties. They have no other powers, rights or duties than are con- 
ferred by the Legislature which creates them. They are mere 
political divisions, established for the more convenient admin- 
istration of the government of the Commonwealth. 

I am of opinion, therefore, that so far as the act relates to the 
Commonwealth and to the counties of the Commonwealth it does 
not violate any provisions of the State or the Federal Constitu- 
tion. 

A far different question, however, arises as to so much of the 
bill as relates to cities and towns. These provisions fix an arbi- 
trary price to be paid for labor by contractors for city or town 



2GG o^I^'Io^'s of the attorney-general. 

work. They also limit the hours of labor to be required by such 
contractors. I assume that the price so fixed may be in excess 
of the market price of such labor; and that the hours of labor so 
established are less than those usually fixed by private contracts. 
Otherwise there would seem to be no occasion for the passage of 
the bill. 

If, therefore, the bill becomes a law, it will prohibit munici- 
palities from exercising that freedom of contract which is enjoyed 
by other corporations and individuals; it will operate to in- 
crease the taxes of the citizens by requiring a larger expenditure 
for wages than would otherwise be necessary, at the expense of 
the citizens of the cities and towns affected by its provisions; 
and will tend to the benefit and profit of certain laborers to an 
extent not enjoyed by laborers generally. 

It would scarcely be disputed, I apprehend, that a law con- 
taining such provisions, affecting private individuals and cor- 
porations, would be a violation of the liberties and privileges of 
citizens under the Declaration of Rights of the Massachusetts 
Constitution and under the Fourteenth Amendment to the Fed- 
eral Constitution. In the exercise of the police power conferred 
by the Constitution, many laws limiting the rights of citizens 
in the making of contracts, and even prohibiting certain con- 
tracts, have been enacted by the General Court and sustained as 
constitutional by the Supreme Judicial Court. Opinion of Jus- 
tices, 163 Mass. 589. But, so far as I am aware, since the begin- 
ning of constitutional government no attempt has been made to 
fix by legislation an arbitrary price of any commodity, includ- 
ing labor, that may properly be the subject of contract between 
parties. It may well be assumed that any such interference 
with the rights of individuals and private corporations would 
be pronounced to be beyond the scope of legislative power. 

Certain apparent exceptions to this general proposition rest 
upon special considerations not applicable to the bill now under 
consideration. Laws regulating the compensation to be charged 
by public service corporations, such as common carriers and gas 
companies, stand upon considerations wholly apart from the 
general rule I have stated. Further examples of legislation of 



HOSEA M. imOWLTON, ATTORNEY-GENERAL. 267 

this character are the statutes regulating the hours of employ- 
ment of women and minors in certain factories, and those limit- 
ing the number of hours persons may be employed in operating 
street railway cars. Such laws are well within the authority con- 
ferred upon the Legislature to enact all manner of wholesome 
and reasonable laws, as they may be deemed to be for the good 
and welfare of the citizens of the Commonwealth. But a statute 
attempting to fix the price and hours of labor as between certain 
private contractors and their employees could not in my judg- 
ment be sustained as a legitimate exercise of the police power 
contained in the Constitution. It would tend to promote the 
pecuniary welfare of one class of citizens at the expense of an- 
other class. 

Is the case different when legislation of this character is at- 
tempted as affecting the city or town? A municipality is, 
indeed, in many respects a mere political division of the Common- 
wealth. So far as it is intrusted with a part of the government 
of the State and her citizens, it is wholly under the control of the 
General Court. Politically, a town is the creature of the Com- 
monwealth. It may be enlarged, diminished, or even annexed 
to another municipality. It may be governed, in whole or in 
part, by the officers of the Commonwealth. Commonwealth v. 
Plaisted, 148 Mass. 375. 

But a town (and in this term, for convenience, I include cities 
as well) may be said to exist in two capacities, — the one politi- 
cal and governmental, and the other as a private corporation. 
I have considered its standing as a political division of the Com- 
monwealth; but it is, also, a corporation enjoying many of the 
rights and privileges of other corporations. It may hold property 
to its own use, and enter into contracts relating thereto. It may 
receive gifts for municipal purposes and may raise money by 
taxation for the same purposes, the expenditure of which is 
within its exclusive control. Its property, however acquired, is 
its own, to which it has the same rights as any other corporation 
or individual, and of which it may not be deprived. It has the 
same liberty with respect to contracts for municipal purposes 
not affecting matters of government as a private person. For 



268 OPINIONS OF THE ATTORNEY-GENERAL. 

example, a statute requiring a town to pay a price for its fire ap- 
paratus in excess of the price for which such things could be 
bought in the open market would be clearly objectionable. 

The distinction between matters strictly municipal and those 
that are governmental is to be clearly borne in mind. As an illus- 
tration of this distinction, the Legislature has undoubtedly the 
right, on the one hand, to fix the salary of public municipal offi- 
cers, like the mayor, or even a policeman, but not the wages of 
mere employees, who have no part in the government of the 
Commonwealth or of the town. They are the servants, not the 
officers, of the town, and to regulate their wages would be to ex- 
ercise a control over the affairs of the town far different from that 
exercised in fixing the salaries of public officers. This distinc- 
tion is clearly established by the courts. Opinion of Justices, 
166 Mass. 589. 

The bill in question, therefore, is an interference with the rights 
of a town to manage its own municipal affairs in matters having 
no connection with its political existence. It amounts, further- 
more, indirectly, to the appropriation of its municipal property, 
whether raised by taxation or otherwise, for the benefit of indi- 
viduals. The bill is as much an invasion of those rights as it 
would be of the rights of any other corporation. 

The limitation of the provisions of the bill to contracts for pub- 
Uc works in no way affects these considerations. The expression 
"public works" obviously applies to work done for the town as 
a municipality. Such work is public only in the sense that it is 
done for the benefit and use of the municipality. 

I do not forget the further provision of the bill, that the act 
shall not take effect in any town until accepted by the voters 
thereof. But, in my judgment, this does not save it. It is not 
wholly clear how far the Legislature may authorize a majority 
of the voters of a town to impose on all its citizens a tax for pri- 
vate purposes. Mead v. Acton, 139 Mass. 341 ; Opinion of Jus- 
tices, 175 Mass. 599. The effect of the bill, notwithstanding, is 
to increase arbitrarily the wages of the employee at the expense 
of the town. It not only binds the minority voter, but, if ac- 
cepted by the town, it becomes binding for all time, and upon 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 269 

all future voters who will have had no opportunity of election 
in the matter. Even if the voters of the town can commit them- 
selves to an unlawful expenditure of public funds, they cannot, 
in my judgment, bind those who come after them. 

Upon the whole, therefore, I am of opinion that the bill, so far 
as it relates to towns and cities, is unconstitutional. Whether 
this conclusion be based upon the proposition that it takes away 
the liberties and privileges of the municipality as a private cor- 
poration, or as authorizing the appropriation of the tax payers' 
money for private purposes, or as legislation partial in its char- 
acter, makes but little difference. All these propositions are 
somewhat intermingled, and rest ultimately upon the broad 
proposition that the rights guaranteed to the citizen by the 
Constitution may not be impaired. 



Physicians and Surgeons — Practice of Medicine — Chris- 
tian Scientists, Osteopathists, etc. 

Under a proposed bill relative to the registration of physicians and surgeons, which 
provides that it shall be a misdemeanor for an unregistered physician or sur- 
geon to practise or attempt to practise medicine, or to hold himself out as a 
practitioner of medicine, it cannot be held, as a matter of law, that pharma- 
cists, osteopathists, clairvoyants, etc., do not practise or attempt to practise 
medicine. 

I have the honor to acknowledge the receipt of a copy of an to the House 

c -nt • TIT of Representa- 

order adopted by the Honorable House oi Representatives May tives. 
3, 1901, requiring the opinion of the Attorney-General upon a >iay^^- 
question therein submitted, which is as follows: — 

"Does Senate Bill No. 281 prevent pharmacists, osteopathists, 
clairvoyants, or persons practising magnetic healing, njind cure, 
massage methods, Christian science, or cosmopathic methods, 
from treating patients by these various and respective methods, 
as is now permitted under the law? " 

St. 1894, c. 458, is an act to provide for the registration of 
physicians and surgeons. Section 10 of the act, as emended by 
St. 1895, c. 412, provides that ''Whoever not being registered 
. . . shall advertise or hold himself out to the pubUc as a phy- 



270 OPINIONS OF THE ATTORNEY-GENERAL. 

sician or surgeon ... or appends to his name the letters 
•'M.D.', or uses the title of doctor, meaning thereby a doctor 
of medicine, shall be punished," etc. Section 11 of the same 
statute (St. 1894, c. 458), so far as it is material to the present 
question, is as follows: ''This act shall not apply ... to clair- 
voyants, or to persons practising hypnotism, magnetic healing 
mind cure, massage methods. Christian science, cosmopathic 
or any other method of healing: provided, such persons do not 
violate any of the provisions of section ten of this act." 

The language of § 11, above quoted, is somewhat peculiar. 
Literally construed it declares that the classes of persons enum- 
erated shall not be affected by the act provided they do not vio- 
late its penal provisions; but it is scarcely necessary to say that 
so long as a person does not violate the provisions of a law he is 
not affected by it. 

I am of opinion, however, that the section is to be more 
broadly construed, and that it was the intention of the Legisla- 
ture specifically to declare that the persons enumerated are not 
to be regarded as holding themselves out to the public as physi- 
cians or surgeons so long as they confine themselves to their 
specialties. Adopting this construction of the section it is 
clear that under the original act the persons enumerated could 
carry on their respective callings without making themselves 
liable to the penal provisions of the statute. 

The bill in question substitutes a new penal section for § 10 
of the existing act; but it repeals § 11, and no similar provision 
is contained in the proposed bill, and I am of opinion that this 
omission seriously endangers the situation of the persons enum- 
erated in § 11 of the existing law, for the reason that if the bill 
becomes ^ law it may be claimed that in attempting to heal per- 
sons by the methods employed in their respective callings they 
are to be deemed to be engaged in the "practice of medicine." 
In the broad sense of that term, it includes generally the art 
of healing, by whatever method. I am not familiar with the 
methods employed by the specialists enumerated. I can easily 
see, however, that it might be claimed, for instance, that one 
who undertook to heal diseases by cosmopathic methods, what- 



I 



I 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 271 

ever they may be, might be deemed to be carrying on the ''prac- 
tice of medicine," and so come within the provisions of the bill. 
If, therefore, the Legislature intends to insure to the classes of 
persons enumerated in the question submitted, the right to pur- 
sue their respective callings without being required to be regis- 
tered, they should be specifically exempted from the general 
prohibitions of the bill. 

I may add that pharmacists are regulated by existing statutes. 
These statutes give them no authority to practise medicine. The 
bill in question gives them no additional powers. 



Agricultural Society — Bounty from the Commonwealth. 

An agricultural society, in order to be entitled to bounty from the Commonwealth 
under the provisions of Pub. Sts., c. 114, § 1, must be an organization local 
in its nature, composed chiefly of persons interested in agricultural pursuits, 
residing in the county within which it is located, and must maintain a perma- 
nent place in the county for its exhibitions, with the necessary buildings 
therefor. 

The opinion of the Attorney-General is desired upon the to the state 
question whether the New England Agricultural Society is en- Ajrricuuure. 
titled to receive the bounty provided for by Pub. Sts., c. 114, § 1. ^layn. 

The society in question is incorporated under the laws of 
Massachusetts, but it owns no real estate or buildings in this 
Commonwealth, and its meetings are held in conjunction with 
those of other agricultural societies, and may be at any favorable 
time or place, either within or without the Commonwealth. It 
in no sense represents a county of- the State, or any other geo- 
graphical section. 

, I am of opinion that the society is not entitled to receive boun- 
ties under the statute. An examination of all the provisions of 
the chapter and of the history of legislation upon the subject 
makes it clear that the agricultural societies referred to in the 
statutes of the Commonwealth are local associations, whose pur- 
pose is to promote agricultural interests in the section of the 
State in which they are located. In every instance in which 
such a society has been admitted to the benefits provided by the 



272 OPINIONS OF THE ATTORNEY-GENERAL. 

statutes, it has been an organization local in its nature, composed 
chiefly of persons interested in agricultural pursuits, residing in 
the county where it is located, and which has established and 
maintained a permanent place in the county for its exhibition 
buildings. The whole purpose of legislation upon the subject 
has been to foster the interests of agriculture by dividing the 
State into sections, usually counties, in each of which a society 
has been incorporated and supported mainly by those living in 
such county or subdivision of a county. 

The section granting the bounty clearly makes it manifest that 
the Legislature had in view societies having exhibition grounds 
and buildings. The section is as follows: "Every incorporated 
agricultural society which was entitled to bounty from the Com- 
monwealth before the twenty-fifth day of May in the year eighteen 
hundred and sixty-six, and every other such society whose exhibi- 
tion grounds and buildings are not within twelve miles of those of 
a society then entitled to bounty, and which has raised by contri- 
bution of individuals and put out at interest on public or private 
security, or invested in real estate, buildings, and appurtenances 
for its use and accommodation, one thousand dollars, as a capital 
appropriated for its uses, shall, except when otherwise determined 
by the state board of agriculture as provided in section three, be 
entitled to receive in the month of October annually, out of the 
treasury of the Commonwealth, two hundred dollars," etc. 

The earliest statute upon the subject was St. 1819, c. 114, "An 
act for the encouragement of agriculture and manufactures," 
which contained, in § 1, a provision not unlike that in the Public 
Statutes, requiring an invested capital of $1,000 before incorpo- 
rated agricultural societies within the Commonwealth could re- 
ceive the bounty provided for. Section 2 provided that any 
agricultural society formed under the act "within any county or 
counties in this Commonwealth," in which no incorporated so- 
ciety at that time existed, might, upon investing $1,000, partake 
of the bounty. This section also contained the following pro- 
vision: "provided, always, that no agricultural society, hereafter 
formed as aforesaid, shall be entitled to the benefits of this act, 
unless the same be formed in a county, or in an association of 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 273 

counties, including a population of thirty thousand inhabitants." 
Section 6 of the same statute provides that the act shall not ex- 
tend to agricultural societies formed in towns or for any circle 
of territory less than a county. 

The next statute was St. 1821, c. 49, which contained a provi- 
sion authorizing the trustees of the incorporated agricultural so- 
cieties, and such as might thereafter be incorporated, to fix and 
define bounds and limits of sufficient extent for the erection of 
their cattle sheds and yards. It also provided for other details 
respecting the exhibitions which were to be held upon their 
grounds. It further provided for the appointment of officers 
who were to give efficiency to the rules and regulations for the 
preservation of good order on the occasion of public cattle shows 
and exhibitions. 

Both of these statutes show clearly that the Legislature did not 
intend to pay a bounty to a society which did not own land and 
buildings or give exhibitions within the Commonwealth. Rev. 
Sts., c. 42, contains, in brief form, nearly all of the regulations 
set forth in the above-quoted acts, together with additional pro- 
visions relating to premiums, etc. All of these provisions were 
re-enacted in the General Statutes, c. 66, with some added re- 
quirements as to filing certificates and making annual returns to 
the secretary of the State Board of Agriculture. In this statute, 
also (§ 16), a time was prescribed when exhibitions by the dif- 
erent agricultural societies entitled to receive the bounty provided 
for in § 1 should be held. 

St. 1866, c. 189, provided that no agricultural society not draw- 
ing a bounty from the State should hereafter be entitled to such 
bounty, in case the grounds and buildings for holding exhibitions 
of said society were within twelve miles of the grounds and build- 
ings of any other society by law entitled to such bounty. It also 
provided for the election of a delegate to the State Board of Agri- 
culture by such societies as published their transactions and made 
returns to the secretary of the State Board of Agriculture. These 
provisions are practically re-enacted in Pub. Sts., c. 114, except 
that the date for holding the exhibitions is regulated by a rule of 
the State Board, and not by the statutes. 



274 OPINIONS OF THE ATTORNEY-GENERAL. 

Furthermore, the same chapter (Pub. Sts., c. 114) which, in 
§ 1, regulates the bounty to be paid to such organizations, pro- 
vides in § 9 that: "Every such society shall admit as members, 
upon equal terms, citizens of every town in the county in which 
it is located, and all premiums offered shall be subject to the 
competition of every citizen of such county." 

Upon the consideration of all these statutes, I am clearly of the 
opinion that the New England Agricultural Society is not within 
the purview of the statute. 

A similar question has been raised in respect to the Bay State 
Agricultural Society. I am informed that this organization is 
similar in its purposes to the New England Agricultural Society. 
For the reasons stated above, therefore, I am of opinion that 
this association is not entitled to bounties. 



Pauper Law — Settlement — Effect of Retroactive 

Statute. 

A settlement acquired prior to 1860, which by its existence prevented the acquisi- 
tion of a settlement in the same place, comes within the exception contained 
in St. 1898, c. 425, § 2, and is not lost because the person acquiring such set- 
tlement died before the passage of the statute. 

To toej5uper. Your letter of April 4 requires the opinion of the Attorney- 
low^*^"^' General upon the settlement of a female pauper. The facts 
May^lv. stated in the letter are as follows : — 

The pauper was born in 1813, and became insane when twenty 
years of age, since which time she has been non compos mentis, 
and has been a public charge of the city of Cambridge since Aug. 
6, 1879. She acquired a settlement through her father, who 
owned and occupied a freehold estate in Cambridge from 1811 to 
1871, the date of his death, gaining thereby a settlement under 
the provisions of Pub. Sts., c. 83, § 1, cl. 4. 

A pauper who is an idiot or insane, and therefore is not compe- 
tent, though of age, to gain a settlement for himself, follows the 
settlement of his father. He is in the same situation as a minor 
child, whose settlement, derived from his father, changes with 
that of his father. Taunton v. Middleborough, 12 Met. 35, 37; 
Upton V. Northhridge, 15 Mass. 237. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 275 

In the present case the pauper, having been insane since 1833, 
could acquire no settlement of her own, and must depend en- 
tirely upon that derived from her father, who was settled in 
Cambridge by virtue of the ownership and occupancy of a free- 
hold estate from 1811 to 1871. 

St. 1898, c. 425, § 2, provides that Pub. Sts., c. 83, § 6, shall 
be amended so as to read: "All settlements not fully acquired 
subsequent to the first day of May in the year eighteen hundred 
and sixty are hereby defeated and declared to be lost, except 
where the existence of such settlement prevented a subsequent 
acquisition of settlement in the same place." 

It is clear that while the father gained his settlement prior to 
1860 (1811-1860), the existence of the settlement so gained pre- 
vented a subsequent acquisition of settlement in the same place 
(1860-1871). There is no question that if he had been living at 
the time of the passage of St. 1898, his settlement would not have 
been lost under § 2. 

I see no reason why the death of the father subsequent to the 
period of time when his settlement would have been acquired, 
but for the existence of the previous settlement, affects the 
question. The situation had become complete when he died, and 
nothing in the statute of 1898, expressly or by implication, makes 
any such exception. In the case of Adams v. Ipswich, 116 Mass. 
570, where the facts under a similar statute were in all respects 
identical, although the question was not directly passed upon, 
no suggestion was made either by counsel or by the court, that 
the death of a person whose settlement was defeated by a prior 
settlement was material to the determination of the question. 



Co-operative Savings Banks — Directors — Proxy Voting. 

The directors of a co-operative sa\'ings bank cannot legally vote by proxy. 

Your letter of April 27, relating to the Pioneer Co-operative to the Board 

I J o I _ ofCommis- 

Bank and to the Guardian Co-operative Bank, and the votings sionersof 

^ _ ^ \ ^ Savings 

of those corporations, appears to require no opinion of law except ^jg^/- 
upon the question whether directors may vote by proxy. aiay^?- 



276 OPINIONS OF THE ATTORNEY-GENERAL. 

It is well settled that they cannot legally vote by proxy. Vide, 
Cook on Stock and Stockholders, § 713a; In Re Portuguese, etc., Co., 
L. R. 42, C. D. 160; Perry v. Tuskaloosa, etc., Co., 93 Ala. 364. 



Violation of Pharmacy Law — Plea of Nolo Contendere 

— Conviction. 

a plea of nolo contendere, followed by a fine imposed by the court, is a conviction 
witliin the meaning of St. 1896, c. 397, § 9. 

To the Board Your letter of June 3 requires the opinion of the Attorney- 

of Regletnition '■ 

in^Pha™»*^^>- General upon the following question: "Is a plea of nolo conten- 
june5. ^g^g^ followed by a fine imposed by the court, a conviction within 

the meaning of § 9, c. 397, Acts of 1896?" 
It is. White v. Creamer, 175 Mass. 567. 



Newburyport Bridge — Legal Title — Repair and Main- 

■ TENANCE. 

The title to the bridge over the Merrimack River, between the city of Newburyport 
and the town of Salisbury, was vested, under the terms of St. 1867, c. 296, 
§ 7, in the county of Essex, by virtue of the proclamation by the Governor, 
dated Aug. 22, 1868, declaring the bridge to be free. 

Since the bridge has become a public highway, however, questions relating to its 
repair and maintenance, and the parties who shall contribute thereto, are 
wholly within the discretion of the Legislature, and are to be determined 
upon considerations in no way connected with the legal ownership of the 
property. 

To the House J havc the honor to acknowledge the receipt of a copy of an 

of Representa- "^ r t-> 

*'i«n order adopted by the Honorable House of Representatives 

• ^""^ ^ - requiring the opinion of the Attorrie5^-General upon the question 

whether the bridge over the Merrimack. River between the city 

of Newburyport and the town of Salisbury is the property of the 

Commonwealth or the county of Essex. 

So far as the history of the bridge is shown by the statutes of 
the Commonwealth, it is as follows: by St. 1826, c. 164, certain 
persons were made a corporation by the name of the Proprietors 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 277 

of the Newbury port Bridge, and were authorized to construct a 
bridge over the Merrimack River between Newburyport and 
Sahsbury. I assume that the bridge in question was constructed 
by the corporation so chartered. It was provided in the charter, 
by § 4, that after a period of forty years from the time when the 
bridge was opened for travel it should revert to and become the 
property of the Commonwealth. I have no information as to 
the time when the bridge was opened for travel, but I assume 
that it was forty years before the next act relating to the sub- 
ject, which was in 1867. 

In the year 1867, by c. 296 of the Acts of that year, the county 
commissioners were "authorized and empowered to lay out as 
and for highways" certain bridges across the Merrimack River, 
including the one in question. It was further provided in this act 
that the damages, if any, to be paid to the proprietors of the 
bridges specified in the act should be paid in the same manner as 
damages occasioned by the laying out of highways ; that is to say, 
by the county. Section 6 contained the unusual provision that 
the several cities and towns in said county, or any of them, might 
contribute to the county towards the payment of damages that 
might be awarded to the proprietors of such bridges; apparently 
leaving the question of contribution, and the amount of the same, 
optional with the cities and towns. 

The important section of this act, so far as relates to the ques- 
tion submitted, is § 7, the language of which is as follows: "Upon 
evidence satisfactory to the governor and council that any one of 
said bridges now or hereafter belonging to the Commonwealth has 
been laid out as a highway according to the provisions of this act, 
the governor shall by his proclamation declare such bridge free; 
and thereupon all the property of the Commonwealth in such 
bridge anfd in the appurtenances thereto, shall vest in said county 
and in said cities and towns contributing to the payment of 
damages in the laying out of such bridge as a highway." 

It was the obvious purpose of the Legislature by this section to 
dispossess the Commonwealth of the legal title to the bridges 
enumerated by vesting the same in the county and in such cities 
and towns as might, under the provisions of the section above 



278 OPINIONS OF THE ATTORNEY-GENERAL. 

quoted, voluntarily contribute to the payment of the damages 
awarded for taking the same. If no city or town contributed then 
the county became the sole owner. But whether such contribu- 
tion was made by cities and towns or not, the Commonwealth 
was to become dispossessed, and either the county alone or the 
contributing cities and towns together with the county were to 
hold the title to the bridges taken. 

Apparently no action was taken under this section; for in the 
next year (St. 1868, c. 309, § 8) the county commissioners were 
commanded within sixty days after the passage of the act to lay 
out as and for highways the same bridges which they were au- 
thorized and permitted to lay out by the statute of 1867. They 
were further required to lay out the bridges enumerated in the 
manner provided by law for the laying out of highways, and 
according to the provisions of the statute of 1867, above referred 
to, so far as the same were applicable. The statute of 1868 further 
required the commissioners to apportion the damages sustained 
by the proprietors of such bridges among such cities and towns 
as the commissioners should determine were benefited by the 
laying out, thus doing away with the voluntary contributions 
provided for by the act of the previous year. 

The bridge in question was laid out as a highway under the 
provisions of this act. But none of the provisions of the statute 
of 1867 were repealed by the later statute, excepting those 
relating to voluntary contributions for damages by the cities and 
towns. In other respects the provisions of the statute of 1867 
still remained in force, including § 7, which provided that upon 
the proclamation of the Governor that the bridge had become 
free, the property in it should vest in the county, and in such 
cities and towns as had contributed to the payment of damages. 
As the title to the property had reverted to the Commonwealth 
no damages were awarded, and, therefore, no contributions were 
assessed upon or received from any city or town. The procla- 
mation by the Governor declaring the bridge free was issued Aug. 
22, 1868; and, thereupon, under the terms of the statute, the 
title to the bridge vested and is in the county of Essex. 

It may not be improper for me to add, although strictly it is 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 279 

not within the scope of the question submitted, that the legal 
title to the bridge has no direct connection with the question of 
the expediency of the enactment of the bill in question. The 
bridge has become a public highway, and questions relating to 
its repair and maintenance, and of the parties who shall contrib- 
ute thereto, are wholly within the discretion of the Legislature. 
It was deemed expedient by the Legislature of 1867 to vest the 
title to the bridge in the county, even though it does not appear 
that such title was desired. But, nevertheless, the question who 
shall maintain the bridge is to be determined upon considerations 
wholly disconnected with the matter of legal ownership of the 
property. 



Board of Harbor and Land Commissioners — Land covered 
BY Navigable Waters — Cession to United States. 

Land at a distance of 200 feet below low-water mark, which is covered by water to 
a depth of 8 feet at mean low water, is "land covered by navigable waters" 
within the meaning of Pub. Sts., c. 1, § 7, although structures of loose stones 
have been erected thereon, and title thereto may be conveyed to the United 
States by the Board of Harbor and Land Commissioners under such statute. 

Your letter of June 4 states that "under the provisions of St. Qf^^'^^riw^Ind 
1898, c. 441, and St. 1899, c. 155, the Board of Harbor and Land |;;^£^°'"°*'^'- 
Commissioners has cut a channel between Lake Anthony at june^25. 
Cottage City and Vineyard Sound, about 5 feet deep and 100 
feet wide on the bottom, and has protected the same by building 
two stone jetties on either side of the cut extending into the 
sound about 200 feet beyond the low-water mark, reaching a 
depth of about 8 feet at mean low water. . . . The LTnited 
States Lighthouse Board is willing to maintain hghts on the ends 
of the jetties. The ends of the jetties are built up (as are the 
entire jetties) by loose stones piled up, through the interstices 
of which the water readily flows." 

The question submitted by your letter is whether the Board 
may convey the land upon which the ends of the jetties have 
been erected to the United States for the purpose of maintaining 
lights and Hghthouses thereon, it being one of the provisions of 



280 OPINIONS OF THE ATTORNEY-GENERAL. 

the U. S. Rev. Sts. that no Ughthouse shall be erected on any 
site until "cession of jurisdiction over the same has been made 
to the United States." 

The authority of your Board is to be found in Pub. Sts., c. 1, 
§ 7, which provides: "The board of harbor and land commis- 
sioners, with the approval of the governor and council, may in 
the name and behalf of the commonwealth convey to the United 
States the title of the commonwealth to any tracts of land covered 
by navigable waters, and necessary for the purpose of erecting 
lighthouses, beacon lights, range lights, or other aids to naviga- 
tion, or lightkeepers' dwellings, upon the application of any au- 
thorized agent or agents of the United States: provided, that 
such title shall revert to and revest in the commonwealth when- 
ever such land ceases to be used for such purposes." 

There can be no doubt that the circumstances of the case bring 
it within the provisions of this statute. 

The jetties extend out 200 feet below low-water mark and 
reach to a depth of 8 feet at mean low water. They are built of 
loose stones, through the interstices of which the water readily 
flows. The soil upon which the jetties rest is, therefore, the 
property of the Commonwealth, and title to it may be conveyed 
by your Board to the United States under the statute quoted and 
subject to the conditions named therein. 



Civil Service — Chief Superintendent — Superintendent 
OF City Farm at Low^ell. 

By the term "chief superintendent of a department," as used in Rvile VII., Schedule 
B, Class 12, of the civ-il service rules, is intended an officer who has the over- 
sight and charge of the whole of the business of that department, and acts 
for and represents the head of the department in every branch of its authority. 

The superintendent of the Cit,v Farm at Lowell is not such an official, and his elec- 
tion, in disregard of the rules of the Civil Service Commission, is, therefore, 
illegal* 

senice^com- The charter of the city of Lowell (St. 1875, c. 173, § 29, as 
""ioM "'"■ amended by St. 1894, c. 190) provides for a board of overseers 
^^'- of the poor, and that "they may appoint a secretary and super- 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 281 

intendent, and such other subordinate officers as the ordinances 
of the city may require, and may define the duties of said officers." 
Acting under the authority of this statute the Board in January 
elected one Robert B. Saunders to the position of superintendent 
of the City Farm, displacing Albert Pindar, a veteran, who, 
until then, was lawfully in office as such superintendent. No 
requisition was made upon the Civil Service Commission, and 
there was no pretence that the rules of the commission were 
complied with, it being claimed or assumed that this office was 
not within those rules. 

Rule VIL, Schedule B, Class 12, enumerates as officers who 
must be appointed under the civil service rules ''superintendents, 
assistant superintendents, deputies and persons, other than the 
chief superintendents of departments, performing any of the 
duties of a superintendent in the service of any city of the Com- 
monwealth." 

The office in question being that of a superintendent of the City 
Farm of Lowell is within this classification, unless it is excepted 
by the words ''other than the chief superintendents of depart- 
ments." I understand that it has been contended that the 
official in question is to be regarded as the chief superintendent 
of a department within the meaning of those words as used in 
this rule, and therefore exempt from the operation of the civil 
service rules. 

But obviously the "chief superintendent of a department," as 
that term is used in the rule quoted, is more than a mere "super- 
intendent," for the latter is within the scope of the rules, while 
the "chief superintendent of a department" is not within the 
rules. The fact, therefore, that an officer is a superintendent 
does not of itself bring him within the exception. By the term 
"chief superintendent of a department" must be intended an 
official who has the oversight and charge of the whole of the 
business of that department, with full power of direction and 
management. He must be one who acts for and represents the 
head of the department in every branch of its authority. 

The superintendent of the City Farm is not such an official. 
While he may have, and probably does have, the entire charge 



282 OPINIONS OF THE ATTORNEY-GENERAL. 

and superintendence of the City Farm, and the buildings and 
departments associated under it, he is, nevertheless, not the gen- 
eral agent of all the matters relating to the poor department, 
and the administration of the poor laws. The agents and repre- 
sentatives of the board are by law two, a superintendent and a 
secretary. The secretary, as I am informed, has charge, subject 
to the control of the board, of what is known as the out-door 
poor relief funds, and distributes aid to those who are not in- 
mates of any of the institutions. On the other hand, the super- 
intendent of the poor farm has charge of those institutions. The 
duties of these two officials are entirely separate. Neither of 
them can be said to be the chief superintendent of the poor 
department. 

The official in question, therefore, not being the "chief super- 
intendent" of the poor department, within the meaning of that 
expression as used in the civil service rules, is not exempt, and 
must be chosen in accordance with the provisions of those rules. 
It follows that the election of Saunders was illegal. 



Registered Pharmacist — Clerk — Sixth-class License — 
Board of Registration in Pharmacy. 

The granting of a sixth-class license to a registered pharmacist who is acting as a 
clerk in a pharmacy does not constitute a violation of the pharmacy law re- 
quiring the Board of Registration in Pharmacy to investigate and notify the 
proper prosecuting officer, as provided in St. 1896, c. 397, § 21. 

To the Board Your letter of June 5 submits the following question: "Upon 

of Registration ^ '■ '■ 

'"iwr"^'""'^ ■ complaint being made to the board of Registration in Pharmacy 
June28. ^^^^ ^ licensc of the sixth class has been granted to a registered 

pharmacist acting as a clerk in a pharmacy, is such a condition 
a violation of the pharmacy law, and is it the duty of the Board 
of Registration in Pharmacy to investigate and notify the proper 
prosecuting officer, as provided in § 21, c. 397, Acts of 1896?" 

There is no law against the granting of a license of the sixth 
class to a registered pharmacist acting as a clerk in a pharmacy. 
For aught that may appear in the granting of a hcense, the appli- 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 283 

cant is proposing to carry on the business in his own name upon 
receiving his license. 

The prohibition of the statute, so far as it concerns your Board, 
is against suffering or permitting by a registered pharmacist of 
the use of his name or his certificate of registration by others 
in the conduct of the business of pharmacy, when he himself is 
not the owner and actively engaged in such business. 

It is certainly the duty of your Board to investigate any such 
improper use of his certificate by a registered pharmacist, and to 
notify the proper prosecuting officer of the fact if it be found to 
exist. 

It may be that your Board has other things in mind in the 
question submitted. If so, I can only reply, generally, that it is 
the duty of your Board "to investigate all complaints of disre- 
gard, non-compliance with, or violation of, the provisions" of the 
chapter. I have quoted the language of the statute for I am 
unable to improve on it. If complaints relate to matters not 
connected with the statute in question, it is not your duty to 
make them, but you are at liberty to do it, as is any other good 
citizen. But whenever any provisions of the pharmacy statute 
are violated, it is certainly your duty to investigate the matter 
and report it to the prosecuting authorities. 



Insurance — Insurance Broker — License — Clerk or 
Other Employee of Broker. 

A salaried clerk or other employee of a duly licensed insurance broker, who is not 
himself so licensed, cannot lawfully do any of the acts forbidden to persons 
not licensed as insurance agents or brokers. He cannot, under pretence of 
being a clerk, act as solicitor or broker of insurance, excepting so far as such 
work is under the immediate direction of his employer and is incidentally a 
part of his work as clerk. 

Your letter of April 12 requires the opinion of the Attorney- ^ojjiejnsur^ 
General upon the question whether one who is a salaried clerk sioner. 
or other employee of a duly licensed insurance broker can law- June28. 
fully do any of the acts forbidden to persons not hcensed as in- 
surance agents or brokers. 



284 OPINIONS OF THE ATTORNEY-GENERAL. 

St. 1894, c. 522, § 87, provides as follows: ''Any person not a 
duly licensed insurance broker, who solicits insurance on behalf 
of any insurance company, or transmits for a person other than 
himself an application for or a policy of insurance to or from 
such company, or offers or assumes to act in the negotiation of 
such insurance, shall be deemed an insurance agent within the 
intent of this act, and shall thereby become liable to all the 
duties, requisitions, liabilities and penalties to which an agent of 
such company is subject." 

By § 98 of the same act it is provided that : "Any person who 
shall assume to act as an insurance agent or insurance broker 
without license therefor as herein provided . . . shall be pun- 
ished by a fine of not less than one hundred nor more than five 
hundred dollars for each ofTence." 

The certificate issued under § 91 of the same chapter is personal 
to the licensee, who must be found by the insurance commissioner 
to be a "suitable person." The licensee, therefore, may not 
delegate his authority to an unlicensed person, even though he 
be his clerk. 

The distinction between what the employee may do and what 
he may not do is well stated in the opinion given to you, as you 
inform me by your letter, by a former attorney-general, to wit: 
"that any clerk or employee who acted outside of his employer's 
office in soliciting insurance, or doing the other things that con- 
stitute a person an agent of an insurance company, would not be 
protected by his employer's license; while a clerk, or employed 
person, doing the clerical work of an insurance office and waiting 
on the customers at the counter, advising as to rates, delivering 
policies and receiving pay therefor, and perhaps incidentally act- 
ing in the negotiation of insurance, would not need a license, in- 
asmuch as he is acting as eye, ear, or hand of his employer, and 
is not known to the insured in any responsible capacity." 

In other words, the employee cannot lawfully be a solicitor or 
broker of insurance, excepting so far as such work is under the 
immediate direction of his employer and is incidentally a part of 
his work as clerk. 



HOSEA M. ItNOWLTON, ATTORNEY-GENERAL. 285 



Massachusetts Highway Commission — State Highway — 
Nuisance — Public Health. 

The Massachusetts Highway Commission is not charged with any duties relating 
to tlie preservation of tlie public health, and therefore is not required to take 
any action toward abating a nuisance upon a State highway when such nui- 
sance does not affect the conditions of the highway as a road structure. 

Your letter of June 4 states that certain abutters along the to the 

" Massachusetts 

State highway in Leicester are discharging their house sewage ^Igjoif ^' *^^™' 
into the gutter of the State road, thereby creating a nuisance. j^^J^^s. 
The letter further states that the houses are very near the road, 
and so situated as to make it difficult to maintain a system of 
cesspools, and that the practice of discharging sewage into the 
gutter has been going on for a long time, both before and since 
the construction of the road by the Commonwealth. 

The letter requires the advice of the Attorney-General as to 
the duties of the Massachusetts Highway Commission upon this 
state of facts. 

The duties of your commission as to State highways are to 
keep them in good repair and condition at the expense of the 
Commonwealth. I assume that the discharges complained of 
do not affect the condition of the highway as a road structure. 
Even if it were otherwise, it is not entirely clear how far a person 
can be compelled to prevent flowage of water from his premises 
to a highway. The present question, however, arises by reason 
of the claim that the discharges are injurious to the health of the 
public and thus constitute a nuisance. With this aspect of the 
matter your Board has nothing whatever to do. You are not 
charged with any duties looking to the preservation of the pub- 
lic health or the prevention of nuisances affecting the same. 



286 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Board 
of Savings 
Banks Com- 
missioners. 

1901 
July 6. 



Co-operative Banks — Security — Collection of Loan. 

If upon the forfeiture of the shares and the foreclosure of a mortgage respectively 
pledged and executed by a stockholder in a co-operative bank, to secure a 
loan from such bank, the amount realized therefrom is not sufficient to dis- 
charge the loan, the balance remaining unpaid becomes a debt which is pres- 
ently due and may be recovered by suit forthwith, like any other loan. 

Your letter of February 25, 1901, encloses a copy of the form 
of note and mortgage usually taken by co-operative banks in this 
Commonwealth when advances are made by them upon shares 
of the bank, and requires the opinion of the Attorney-General 
as to "whether or not under said form of note and mortgage, in 
cases of foreclosure and sale, if the property did not bring suffi- 
cient to pay the amount advanced by the bank, would it have a 
claim on the maker of the note (as in cases of ordinary mort- 
gages) for the deficiency between the sale and the amount of the 
advance?" 

In order intelligently to answer this inquiry, it is necessary to 
ascertain the precise nature of the contract expressed by the 
note and mortgage, the forms of which are submitted with your 
letter. The form of the note (which is followed in the condition 
of the mortgage) is unusual. It is peculiar, I believe, to co-op- 
erative banks. Many borrowers, who understand clearly that 
the bank has loaned them money, secured by a mortgage, and 
payable in monthly instalments, find it difficult to comprehend 
the somewhat involved terms of the note they are required by 
the bank to sign. 

The first difficulty grows out of the peculiar signification of 
the word "share" as used in the note and mortgage. It is unlike 
the ordinary share in a business corporation, in that the sub- 
scriber for a share merely acquires by his contract with the bank 
the right to continue to pay assessments on his so-called share 
until the assessments paid by him, together with the interest 
earned upon them, amounts to $200, at which time that sum is 
forthwith paid to him. That is to say, the word "share" means 
only the right to contribute monthly to a given fund, to be used 
by the bank for the purpose of making loans; to be credited 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 287 

with the amount of his contributions and the proportional part 
of the interest earned upon such contributions until the accumu- 
lation reaches the sum of $200, when the whole amount is paid 
to the subscriber, and his so-called share is at an end. 

Another peculiarity of co-operative bank transactions lies in 
the fact that there are no loans excepting to shareholders. The 
borrower must subscribe for a number of shares at $200 each, 
sufficient to equal the amount of his proposed loan. That is to 
say, if he proposes to borrow $1,000, he must subscribe for five 
shares of $200 each. These shares are forthwith pledged by him 
to the bank for the amount of the advance. He undertakes to 
pay monthly the interest on the amount of the advance, and the 
dues and assessments appertaining to the shares. The contract 
of pledge is terminated (unless sooner by the voluntaiy act of 
the parties) when the accumulations of the shares make them 
worth the full amount of $200. Then the shares of the borrower 
and his obligations are discharged at the same time; the value 
of the shares being equal to the amount of the advance made to 
him. 

Obviously, however, a loan made upon shares which represent 
nothing but the right to contribute money is an insufficient secu- 
rity, unless there is some adequate assurance that the dues upon 
the shares will be paid, together with interest upon the advance. 
To secure these two things the form of note submitted with your 
letter has been devised. The contract of the note is, in substance, 
an agreement by the borrowing shareholder that he will pay the 
monthly dues on the shares, and the interest upon the loan, until 
the shares shall reach the ultimate value of $200 each. The con- 
dition of the mortgage is practically the same. It is not the re- 
payment of the advance, but the payment of the interest upon 
the advance and the dues upon the shares pledged as security 
for the advance. 

It is provided by Pub. Sts., c. 117, § 16, as amended by St. 
1882, c. 251, that if the borrowing member fails to comply with 
his contract to pay the dues upon his shares and interest upon • 
his advance, the directors may at their discretion declare the 
shares forfeited. They shall thereupon charge the borrowing 



288 OPINIONS OF THE ATTORNEY-GENERAL. 

member with the arrears of interest and dues upon the shares, 
and credit him upon his loan with the value of the shares; and 
may thereupon, after a stated time, enforce ''the balance of the 
account" against the security. Under this provision of the stat- 
ute, therefore, the mortgage may be foreclosed for the purpose 
of collecting this balance. The inquiry in your letter supposes 
the case that the mortgaged property may not sell under fore- 
closure for enough to pay the balance of the account, and re- 
quires the opinion of the Attorney-General upon what further 
rights the bank has upon the borrowing member. 

Notwithstanding the elaborate provisions in the note and in 
the mortgage, by which the transaction is made to appear to be 
a subscription for shares by the borrower, and an advance upon 
the credit of them, with a mortgage to secure the balance unpaid 
upon the shareholder, it is obvious that the transaction is, nev- 
ertheless, in fact a loan, and these provisions are methods de- 
vised to permit the paying of the loan in small instalments, and 
under circumstances which, as it is claimed by those interested 
in co-operative banks, will allow the borrower in fact to get a 
lower rate of interest on account of the investment by the bank 
of his partial payments in other loans, in the profits of which he 
participates as a shareholder. 

But if the consideration in relation to the pledge of the shares 
is broken, and the shares are forfeited, and the security of the 
mortgage is exhausted, and all these proceedings are not suffi- 
cient to pay the loan, it is not discharged, remains due, and may 
be collected by suit, Uke any other loan. The suit would not be 
upon the note, nor upon any contract relating to the shares. 
The declaration would be a common count for money loaned. 

It is also obvious that when the shares are forfeited by the 
fault of the borrower, the balance is presently due and may be 
collected forthwith. There was no time fixed in the original 
loan for a repayment ; but by subscribing for and pledging shares 
he acquired the right to discharge his loan by paying the assess- 
• ments on his shares until the value of the shares equalled the 
amount of the loan. This right ceased when his shares were for- 
feited, and nothing of the transaction remained but a loan, 
without time fixed for repayment, and therefore due on demand. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 289 



Insurance — Liability of Physician for Accident to 
Patient — Accident Insurance Policy. 

Injury or death caused by the mistake, inadvertence or error of a physician, is, so 
far as concerns the patient, an accident, and a policy issued to physicians in- 
suring them against loss froni common law or statutory liability for damage 
on account of bodily injuries, fatal or non-fatal, suffered by any person or 
persons in consequence of any alleged error or mistake made by the physician 
to whom such policy is issued, is insurance against loss or damage on account 
of "bodily injury or death by accident" within the meaning of cl. 5 of St. 
1894, c. 522, § 29, and is therefore legal. 

Acts of 1894, c. 522, § 29, par. 5, provides that insurance com- Totheinsur. 
panies may be formed "to insure any person, firm or corpora- missioner. 
tion against loss or damage on account of the bodily injury or JuiyJ_o- 
death by accident of any person for which loss or damage said 
person, firm or corporation is responsible." Section 77 of the 
same chapter authorizes foreign companies under certain condi- 
tions to transact in this Commonwealth any class of insurance 
authorized by its laws. A foreign insurance company, which 
has been admitted to do an accident business in this State under 
the sections referred to, proposes to issue to physicians policies 
insuring them "against loss from common law or statutory lia- 
bility for damage on account of bodily injuries, fatal or non- 
fatal, suffered by any person or persons in consequence of any 
alleged error or mistake made" by the physician to whom the 
policy is issued. 

The question submitted in your letter of June 12, 1901, is 
whether such a contract is within the authority of the statute 
above quoted. 

It is settled that insurance may be written covering accidents 
to persons other than the assured. Employers' Liahility Insur- 
ance Company v. Merrill, 155 Mass. 404. It has also been held 
that such a contract is not against public policy. American 
Casiialty Company's Case, 82 Md. 535. 

There is nothing, then, to make this form of insurance illegal, 
provided the statute is broad enough to authorize it. Whether 
this be so depends upon the interpretation to be given to the 
word "accident," as used in the statute. 



290 OPINIONS OF THE ATTORNEY-GENERAL. 

In general, an accident may be said to be the operation of 
chance. As the word is more commonly used it signifies an 
undesirable or unfortunate happening, an undesigned harm or in- 
jury. In this broad sense any disease may be said to be an acci- 
dent. But the word as used in the statute is to be construed in 
accordance with its surroundings. Throughout insurance stat- 
utes a distinction is made between death or injuries resulting 
from disease and those which are the result of what are ordina- 
rily called casualties or accidents. Mere disease, therefore, is not 
an accident. An aggravation, however, of the disease, caused 
by no fault of the patient, but by a mistake, inadvertence or 
error of another, may properly be termed an accident, so far as 
the patient is concerned. 

This may be so even though the patient himself can make no 
claim upon his own accident insurance policy. The ordinary 
accident insurance policies specifically except death or disability 
caused, wholly or in part, by surgical operations or medical treat- 
ment for disease. Most of them also further limit the use of the 
word "accident" by barring cases where there are not some ex- 
ternal marks of injury. 

Bearing these considerations in mind, I see no good reason to 
doubt that whenever a patient receives an injury, the proxi- 
mate cause of which is the negligence of the physician, he may 
as properly be said to have been injured by accident, as an em- 
ployee who is thrown to the ground by*^a staging defective in 
consequence of the negligence of his employer. The same is 
true, in my judgment, of fatal injuries caused under the same 
circumstances. If a man receives a wound, not of itself fatal, but 
which causes death by what is commonly called blood-poison- 
ing, this would be death by accident. If a patient is treated by 
a physician who neglects to use antiseptic precautions, and death 
results from such neglect, it is still an accident so far as the pa- 
tient is concerned, and one for which the physician may be liable. 

An employer whose negligence causes injury to his employee 
may be held to pay damages therefor, either at common law or 
by some statute. He may insure himself against such liability. 
A physician whose negligence causes injury to his patient that 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 291 

would not have happened to him if he had been skilful may be 
made to pay the damages which result. I see no difference be- 
tween insuring the physician under such circumstances and the 
employer whose negligence made him liable to his employee. 

It is not necessary to consider whether there may not be cases 
of liability by physicians for malpractice which could not be in- 
sured against under the statute quoted. It is sufficient that 
some cases where physicians are held liable at common law come 
within the meaning of the statute as I interpret it, and there- 
fore that the form of policy cannot be pronounced illegal. 



Pauper Laws — Unsettled Woman — Retroactive Statute. 

A female pauper, who, prior to 1860, acquired a derivative settlement through her 
husband, was not an "unsettled woman" within the retroactive provisions 
of St. 1874, c. 274, § 2, and St. 1878, c. 190, and so could not acquire a settle- 
ment thereunder in her own right, and therefore became, upon the passage 
of St. 1898, c. 425, § 2, cutting off her derivative settlement, an unsettled 
woman. 

The pauper referred to in your letter of March 11 was born in Tothe super- 

^ ^ -^ _ ^ intendent of 

1819 and has been a widow since 1849. She acquired, prior to f,'^^^^'^"'* 
1860, a derivative settlement, through her husband, in Salem, jui^so. 
Since 1860 she has resided in Boston, but was aided at the ex- 
pense of Salem in the years 1864-1866 inclusive and in the years 
1875-1898 inclusive. During the years 1867-1874 inclusive she 
received no aid, being then a resident of the city of Boston. 
The question submitted by your letter is whether she is to-day 
settled in Boston. 

St. 1874, c. 274, provided in § 2 that a woman residing in any 
place within the State for five years, without receiving relief as 
a pauper, would gain a settlement in such place; but in § 3 it 
was provided that no existing settlement should be changed by 
the act, unless the entire residence accrued after its passage; 
but that as to unsettled persons the statute should be deemed 
to be retroactive. This act, therefore, did not give her a settle- 
ment in Boston, for she was not then an unsettled person, and 
the five years' residence in Boston was before the enactment of 



292 



OPINIONS OF THE ATTORNEY-GENERAL. 



the statute. This statute was re-enacted in St. 1878, c. 190, and 
was extended to married women who had no settlement derived 
by marriage, by St. 1879, c. 242. Both of these later statutes 
were retroactive as to unsettled women only. They did not oper- 
ate, therefore, to change her derivative settlement in Salem. 

The re-enactment of these provisions in Pub. Sts., c. 83, § 1, 
cl. 7, did not change the situation. 

Up to the year 1898, therefore, the pauper had not acquired a 
settlement in Boston and had not lost her settlement in Salem. 
St. 1898, c. 425, § 2, however, provides that "all settlements not 
fully acquired subsequent to the first day of May in the year eigh- 
teen hundred and sixty are hereby defeated and declared to be 
lost, except where the existence of such settlement prevented a 
subsequent acquisition of settlement in the same place: provided, 
that whenever a settlement acquired by marriage has been thus 
defeated, the former settlement of the wife, if not defeated by 
the same provision, shall be thereby revived." 

This statute cut off her derivative settlement in Salem, and as 
she would lose any settlement which she might have had before 
marriage by the same provision, and so far as the facts show was 
not prevented by her derivative settlement from gaining another 
in Salem, she became under its provision, and is to-day, an 
unsettled woman. 



To the Metro- 
politan Park 
Commissiou. 

1901 
August 6. 



Metropolitan Parks — Violation of Law — Fines. 

The provision of St. 1901, c. 464, requiring that all fines recovered for violation of 
the laws of the Commonwealth within the limits of lands, roadways or boule- 
vards under the care of the Metropolitan Park Commission shall be accounted 
for and paid to the Treasurer of the Commonwealth, and by him placed to 
the credit of such commission, must be limited to fines actually collected or 
received by the commission. 

St. 1897, c. 121, § 2, provided as follows: "All sums of money 
hereafter collected or received by said commission, including 
sums received for rentals, sales, or use of property under its care, 
and all fines recovered for violations of law within the limits of 
the lands, roadways or boulevards under its care, shall be ac- 
counted for and paid to the treasurer and receiver-general of the 



HOSEA M. KNOWXTON, ATTORNEY-GENERAL. 293 

Commonwealth, and shall be placed by him to the credit of and 
added to the funds provided by law for meeting the expenses of 
said commission, and may be expended by said commission in 
addition to any loans or appropriations authorized for park 
purposes." 

In an opinion given Sept. 15, 1898 (1 Op. Atty.-Gen. 595), I 
advised your Board that the phrase in the section, ''all fines 
recovered for violations of law within the limits of the lands, 
roadways or boulevards" under the care of the Metropolitan Park 
Commission, should be construed as including only such fines as 
were recovered for violation of the rules and regulations made by 
the park commission. 

St. 1901, c. 464, repeals the section above quoted and substi- 
tutes a new section therefor (§ 1). The new section is similar to 
the old in all respects excepting that in place of the phrase "all 
fines recovered for violations of law within the limits of the lands, 
roadways or boulevards under its care," the new section substi- 
tutes the following, to wit: "all fines recovered for violation of 
rules and regulations established by said commission for the gov- 
ernment and use of the lands, roadways or boulevards under its 
care, or for violation of the laws of the Commonwealth within the 
limits of said lands, roadways or boulevards." 

Having expressly added "fines recovered for violation of rules 
and regulations established by the commission" to "fines recov- 
ered for violations of law within the limits of the lands, roadways 
or boulevards," as provided in the repealed section, it was un- 
doubtedly in the mind of the framers of the new statute that the 
latter expression (which stood alone in the old statute) could no 
longer be limited in its construction, as indicated in my former 
opinion, basing this view upon the proposition that the statute 
would be without meaning if two independent and connecting 
clauses referred to the same matter. 

There is much force in the suggestion. Statutes are not to be 
construed as being without meaning unless there is no other 
possible alternative. But I am, nevertheless, of the opinion that 
the statute of 1901 cannot be construed according to the obvious 
intent of its framers. 



294 OPINIONS OF THE ATTORNEY-GENERAL. 

In order to a full understanding of the questions involved, it is 
necessary to consider some general rules of pleading and practice 
in criminal law. An offence having no essential connection with 
the place in which it is committed need not be alleged in criminal 
pleading as having occurred at any particular place. There must 
be an allegation of place, but the indictment or complaint is sup- 
ported if it be shown that the offence was committed within the 
county. Commonwealth v. Heffron, 102 Mass. 148; Common- 
wealth V. Kern, 147 Mass. 595. In framing an indictment for 
such offences, which comprise by far the greater number of those 
known to criminal pleading, it is unnecessary to specify the exact 
locality. By the well-settled rules of criminal pleading, it is suf- 
ficient to allege that the offence was committed in a town within 
the county. 

Some offences, it is true, are local in their nature ; but even as 
to them it is usually sufficient to name the town in which they 
were committed. Common nuisances and liquor nuisances are 
examples of this class of offences. 

This being so, it is obviously impossible for the clerk, whose 
duty it is to transmit fines recovered, to know the locality in 
which the crime was committed. As to some, it is often impos- 
sible to designate a particular locality, like, for example, the 
offence of writing and publishing a libel. If the case is tried 
before the court and the clerk happens to be present, he may 
learn from the testimony the locality of the offence, but very 
many cases are disposed of by a plea of guilty, and there is no 
evidence presented to the court which would give the clerk the 
desired information. 

I am unable to construe a law as intending an impossibility. 
Upon the construction claimed for the statute in question, it is 
the duty of the clerk to see that fines recovered for all violations 
of law committed on the parks and boulevards under the charge 
of your commission shall be designated as such, in order that 
they may be paid over in accordance with its terms. This the 
clerks cannot do; much less can the Treasurer of the Conmion- 
wealth, in the absence of information from the clerks of courts, 
know what fines received by him shall be paid over to the park 
fund, as required by the statute. 



HOSE A M. KNOWLTON, ATTORNEY-GENERAL. 295 

Moreover, the matter of the disposition of fines recovered in 
criminal proceedings has been the subject of many statutes, gen- 
eral and special. Formerly all fines, in the absence of any special 
provisions to the contrary, were paid over to the treasurer of the 
county. Pub. Sts., c. 154, § 34. Much dissatisfaction arose on 
account of this provision, it being claimed by town officers that 
in many cases they were required to spend the money of the town 
to detect and convict criminals without receiving any reimburse- 
ment, the fines imposed going to the county. St. 1891, c. 416, 
accordingly, provided that fines collected in the Superior Court 
should be paid to the treasurer of the county, while fines collected 
in an inferior court should be paid to the city or town in which 
the offence was committed. It was deemed that this somewhat 
arbitrary division would fairly adjust the balance between mu- 
nicipalities and the county in the matter of criminal expenses on 
the one hand and receipts from criminal cases on the other. 

In addition to the general provisions referred to, there are 
numerous special statutes regulating the disposition of fines. For 
example, fines imposed for cruelty to animals shall, in certain 
cases, be paid to the Massachusetts Society for the Prevention 
of Cruelty to Animals. Pub. Sts., c. 207, § 58. Many statutes 
provide for the payment of the whole or a portion of fines recov- 
ered in certain cases to the informant. Fines imposed for non- 
support of a wife may, in the discretion of the court, be paid to 
the wife. 

But under the construction claimed, this statute, which is en- 
titled ''An act to define the disposition of money received by 
the Metropolitan Park Commission from rentals and from other 
sources," contains in its first section a single clause repealing, in 
certain cases, all the general and special provisions of law above 
referred to. Clerks of courts, searching the statutes for enact- 
ments relating to the performance of their duties, would scarcely 
expect to find under the above title an act so important to them. 
I am unable to believe that the Legislature can be deemed to 
have intended to enact so important a change in existing statutes 
in this indirect and obscure way. 

The only way in which the statute in my opinion can be con- 
strued is in accordance with its title. In terms it is entitled an 



296 



OPINIONS OF THE ATTORNEY-GENERAL. 



act relating to the disposition of moneys received by the park com- 
mission. Literally construed the section in question is limited 
to fines collected or received by the commission. Its provisions 
must be limited to such, fines. The fact, if it be a fact, that under 
existing laws no fines are received by the park commission, 
renders the law useless. But even this result is preferable to a 
construction of its terms which would make it a statute impos- 
sible to be enforced. 



To the Civil 
Service Com- 
missioners. 

11)01 
September 27 



Civil Service — Permanent Service — Probationary 
Period — De Facto Official. 

The retention in the civil service after his period of probation is over, without fur- 
ther appointment, of a certified candidate provisionally appointed, is not a 
violation of the civil service rules. 

Such de facto official having been certified as fit by the Civil Service Commission, 
the requirements of the ci\'il ser\ace law are satisfied. 

Your letter of July 24 requests the opinion of the Attorney- 
General upon the following facts: certain men were duly nomi- 
nated and confirmed as members of the regular police force of 
Lawrence for the probationary period of six months. The civil 
service rules were complied with in their appointment. The pro- 
bationary period has expired. At the end of that period the 
mayor nominated them for permanent officers, and the board of 
aldermen refused confirmation. They are still holding office, 
performing all the duties and receiving pay therefor. Upon these 
facts your letter requests my opinion upon the following in- 
quiries : — 

First. — If, at the expiration of the six months' probationary 
period, a police officer is not permanently appointed, does he 
cease to be such oflficer? 

Second. — Upon the above statement of facts, are these ap- 
pointees now legally -acting as police officers in LawTence? 

I am of opinion that these questions do not concern your 
Board. The rules have been complied with in their original 
appointment. It is true that Rule 35 provides that at the end 
of six months the probationer shall be absolutely appointed or 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 297 

employed, or otherwise shall be deemed out of the service; but 
the fact that the officers in question are continuing to act after 
the expiration of the probationary period, and without absolute 
appointment to the regular service, is one which concerns the 
city of Lawrence and not your commission. There is no violation 
of the civil service rules. They are acting as de facto officials, but, 
in my opinion, such action does not transgress any rule laid down 
by the commission. The men serving as such de facto officers had 
been certified by your Board as fit, and the requirements of the 
civil service law are satisfied. 



Public Weighing — Platform Weighing Machine — Sealer 
OF Weights and Measures — Contents of Milk Jars. 

A platform weighing machine, publicly placed for the purpose of allowing a person 
to ascertain his weight upon the payment of a fee, is not used for the purposes 
of commercial transactions, and is not within the provisions of Pub. Sts., 
e. 65, requiring weights, measures or balances for the purpose of selling goods, 
wares, merchandise or other commodities, or for public weigliing, to be ad- 
justed and sealed. 

A sealer of weights and measures of a city or town has no authority to seal a milk 
bottle of a size not prescribed by St. 1901, c. 360. 

Your letter of August 27, 1901, requires the opinion of the Tothe 
Attorney-General upon two questions, the first of which is as ^-^^<^ Receiver- 
follows:— '7% 

September 27. 

First. — Do the provisions of c. 65, Public Statutes, or acts in 

amendment thereof or in addition thereto, apply in any way to a 
platform weighing scale publicly placed for the purpose of allow- 
ing a person to ascertain his weight, such weight being registered 
automatically only upon the payment of a fee? 

The provisions of Pub. Sts., c. 65, entitled "Of weights and 
measures," and the acts in amendment thereof, are intended to 
secure honest dealing between buyer and seller by assuring to the 
purchaser the use of correct weights and measures by the seller. 
The machines referred to in your question are not used for the 
purposes of commercial transactions. They are, therefore, not 
within its provisions, and need not be sealed. It is scarcely neces- 



298 



OPINIONS OF THE ATTORNEY-GENERAL. 



sary to say that the expression "pubUc weighing," in the chapter 
referred to, relates to the weighing by sworn officials appointed 
for that purpose of commodities which are bought and sold. 

Second. — Is it lawful for a sealer of weights and measures of a 
city or town to seal a milk bottle holding a greater or less amount 
than the authorized variation prescribed by c. 360, Acts of 1901? 

The chapter referred to (St. 1901, c. 360) was intended to 
authorize the use of glass bottles and jars of certain sizes for the 
distribution of milk and cream. The sizes so authorized are those 
containing quarts and divisions and multiples thereof. The 
statute does not authorize the sealing of jars or bottles of any 
other size. The duties of the sealer are prescribed by the statute, 
and he has no authority or discretion to seal any bottles or jars 
except those specified. 



To the 
Treasurer 
and Receiver- 
General. 

1901 
Septemljcr 27. 



Treasurer of the Commonwealth — Millicent Library 
Corporation — Investment of Fund. 

St. 1893, c. 392, providing that the Treasurer of the Commonwealth may receive 
and hold in trust the sum of $100,000 for the benefit of the Millicent Library 
Corporation, for the purposes of a public library in Fairhaven, in § 3 author- 
izes the Treasurer to purchase long-time securities at a price above par, using 
so much of the income as is necessary to pay the premium, in order to keep 
intact the principal of such fund. 

By St. 1893, c. 392, the Treasurer of the Commonwealth was 
authorized to receive and hold in trust the sum of $100,000 "for 
the benefit of the Millicent Library Corporation, for the purposes 
of a public library in Fairhaven." Investments of the fund are 
to be made under the direction of the secretary of the Board 
of Education and the Treasurer, — all such investments to 
be subject to the approval of the Governor and Council. The 
statute became operative during the current year by the payment 
of the money to the Treasurer. 

Your letter of September 16 states that it is desirable that the 
fund be invested in long-time securities, — the purchase of which 
is only possible by the payment of a premium, — and requests 
the opinion of the Attorney-General upon the question whether 
the Treasurer is authorized to expend any part of the income of 



HOSEA M. IvNOWLTON, ATTORNEY-GENERAL. 299 

the fund for the payment of a necessary premium to make possible 
the reinvestment of the fund in long-time securities at a par 
valuation. The first investment of the fund was in securities at 
par or less. 

Section 3 of the act quoted provides as follows: "... The 
net income of the said fund shall be determined after deducting 
all necessary and proper expenses incurred in the administration 
of said fund, and after reserving such amount of the gross income 
as in the opinion of said commissioners is necessary to maintain 
the principal of said fund intact." 

This provision, in my judgment, authorizes you to purchase 
long-time securities at a price above par, using the income so far 
as necessary to pay the premium, so that only the par value shall 
be charged to the principal of the fund. There can be no other 
intelligent interpretation of its meaning. 



Insurance — License as Insurance Agent — Corporation. 

A corporation is not a "person" within the meaning of St. 1894, c. 522, § 93, cl. 2, 
as amended by St. 1895, c. 59, § 2, providing that, upon payment of a fee of 
ten dollars, the Insurance Commissioner may issue to any "suitable person" 
a license to act as insurance broker. 

St. 1894, c. 522, § 93, cl. 2, provides as follows: "The insur- J^^c^^^J^g. 
ance commissioner may, upon the payment of a fee of ten dollars, ^^°i^i 
issue to any person a certificate of authority to act as an insur- <^^^2!!!!^" 
ance broker to negotiate contracts of insurance or reinsurance or 
place risks or effect insurance or reinsurance with any quahfied 
domestic insurance company or its agents, and with the author- 
ized agents in the Commonwealth of any foreign insurance com- 
pany duly admitted to do business in the Commonwealth." 

By St. 1895, c. 59, § 2, the section above quoted was amended 
by inserting the word "suitable," so that the commissioner was 
authorized to "issue to any suitable person" a license as insur- 
ance broker. 

By St. 1896, c. 448, it was provided that such hcenses should 
be limited to the residents of the Commonwealth, or to residents 



300 



OPINIONS OF TME ATTORNEY-GENERAL. 



of other States who granted like certificates to residents of this 
Commonwealth. 

Notwithstanding the able and ingenious brief by the attorney 
for the corporation petitioning for a license as an insurance 
broker, I am of opinion that under this statute the Insurance 
Commissioner is not authorized to issue a license as an insur- 
ance broker to a corporation organized under the laws of the 
State of Maine doing business in this Commonwealth. There are 
many expressions throughout the insurance statutes which appear 
to me to show that the Legislature intended a personal license. 
Among the most conclusive is § 111, which provides that a 
licensed insurance broker who does certain things ''shall be 
deemed guilty of simple larceny." If I understand the meaning 
of the word "larceny" it is not possible for a corporation, as such, 
to be guilty of that crime. Obviously, if this be so the Legis- 
lature had in mind natural persons only as licensed brokers. 

I have not overlooked the fact that it was held by the Supreme 
Judicial Court in Enterprise Brewing Co. v. Grimes, 173 Mass. 252, 
that a corporation may be licensed to sell intoxicating liquor. 
The determination of that case, however, was based chiefly upon 
the provisions of the statute under which such licenses are 
granted, and the reasoning of the opinion does not apply to the 
statute now under consideration. 



State House — Elevators — Local Inspection. 

The elevators in the State House, so long as they are in charge of officers of the 
Commonwealth designated therefor by the Legislature, are not within the 
provision of St. 1901, c. 439, that certain construction work and devices 
therein required shall, in the city of Boston, be approved by the building 
commissioner. 



To the 

Sergeant-at- 

Arins. 

1901 
November 6. 



Under St. 1901, c. 439, amending St. 1894, c. 481, § 42, it is pro- 
vided that all elevator cars "shall be provided with some suitable 
mechanical device whereby they will be securely held in the 
event of an accident to the shipper rope or hoisting machinery, 
or any similar accident." The statute contains other provisions 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 301 

looking to the safety of elevator passengers. It further provides 
that the construction work and devices so provided for shall be 
approved in the city of Boston by the building commissioner. 

Your letter of November 5 requires the opinion of the Attorney- 
General upon the question whether this statute is applicable to 
the elevators in the State House. 

The State House is the property of the Commonwealth, in 
charge of officers authorized thereto by the Legislature of the 
Commonwealth. It is not to be presumed that police regulations 
of the character in question are intended to be applicable to 
officers of the Commonwealth or to the property of the Common- 
wealth; nor that the Legislature, by such enactments, intended 
to limit the authority of the Commonwealth over its own prop- 
erty, or to provide that a local officer should supervise the 
doings of its own servants. See 1 Op. Atty.-Gen. 290; 2 Op. 
Atty.-Gen. 56. 

In my opinion, the elevators in the State House, so long as 
they are in charge of officers of the Commonwealth provided by 
the Legislature, are not within the provisions of the statute in 
question. 



Citizen — Unnaturalized Resident of a City. 

An unnaturalized alien, resident in a city of this Commonwealth, is not a "citizen" 

thereof. 

The trustees of the Dickinson Hospital of Northampton have to the super. 

. intendent of 

voted that the free benefits of the hospital shall be applied to state acUiu 
those persons "who are citizens who have legal settlements in i^o^en^^jer le. 
the towns of Northampton, Hatfield and Whately." 

A patient was admitted to the Dickinson Hospital who was of 
age, a native of Ireland, who came to the United States in June, 
1900, and has lived in Northampton since. Your letter of October 
18 requires the opinion of the Attorney-General upon the question 
whether he was within the provisions of the vote above quoted. 

The person in question was not a citizen of Northampton and 
had no legal settlement therein. He was not even a citizen of the 
United States. A resident is not necessarily a citizen. 



302 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Civil 
Service Com- 
missioners. 

1901 
November 16. 



Civil Service — Chief Superintendent — School-house 
Custodian in the City of Boston. 

An officer with the title of "school-house custodian," appointed by the school com- 
mittee of the city of Boston, whose duties are ' ' the general supervision of 
janitors and the care of school property, excepting that which comes within 
the jurisdiction of the committee on supplies," is not a chief superintendent of 
any department, and is therefore within and subject to the civil service rules. 

Your letter of October 26 submits the question whether a 
person appointed by the school committee of the city of Boston 
to the position of school-house custodian is within the civil 
service rules. 

It appears by a letter from the secretary of the school com- 
mittee that the duties of the officer in question are "the general 
supervision of janitors and the care of school property, excepting 
that which comes within the jurisdiction of the committee on 
supplies." The authority of the school committee to choose such 
an officer is found in St. 1875, c. 241, § 4, authorizing the board 
to choose "such other subordinate officers as they may deem 
expedient," and to define their duties. 

The officer in question is clearly within the civil service rules, 
— Rule VII., Schedule B, Class 12; to wit: "Superintendents, 
assistant superintendents, deputies and persons other than the 
chief superintendents of departments, performing any of the 
duties of superintendent in the service of any city of the Com- 
monwealth." The officer in question is not a "chief superin- 
tendent" of any department within the construction of this rule 
adopted in the opinion of the Attorney-General dated June 27, 
1901 (Ante., p. 280), but is a person performing some of the 
duties of superintendent. 



Civil Service — Provisional Appointments. 

Where provisional appointments are made to fill the places of men appointed from 
the certified list furnished by the Civil Service Commission, and the persons 
so appointed are immediately suspended, such appointments are illegal. 

To the Civil Your letter of October 8 requires the opinion of the Attorney- 

service Com- 
misBioners. General upon the question whether the action of the superin- 

November 16. j^g^^gnt of strccts of Bostou in appointing certain persons, in 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 303 

April of this year, to be inspectors of paving of the city of Boston, 
was legal. 

The facts as stated in your letter were that after making requi- 
sition upon the commission for twenty names of persons to be 
appointed to the position in question, and receiving a list of 
twenty, from which list it was his duty to appoint twelve, he 
purported to comply with the rules of the commission by ap- 
pointing the required number, immediately suspending them and 
proceeding to fill the vacancies by provisional appointments. 

There can be no doubt that such action was illegal. It was a 
mere device to evade the law, and the provisional appointments 
so made were illegal. 



Trade-mark — Filing and Recording — Identical Trade- 
marks. 

It is the duty of the Secretary of the Commonwealth, under St. 1895, c. 462, § 1, 
to refuse to receive or record a label which has already been recorded, not- 
withstanding the fact that the class of goods dealt in may be wholly dissim- 
ilar to the merchandise specified in the former application. 

The expression "The Klondike" has been duly recorded, by a Tothe 

^ , ... Secretary. 

person carrying on business in this Commonwealth, as a label. Decembers 

In his certificate he specifies as follows: "General class, wearing 

apparel; particular description, suspenders." 

Since the filing of this label, application has been made for the 
recording of the same term as a label by a person who declares 
that he intends to appropriate it to overcoats. 

The question submitted is whether it is your duty to receive 
and file the latter application. 

I am of opinion that the words of the statute are so far con- 
trolling as to forbid you to receive and record a label which has 
already been filed and recorded, notwithstanding the fact that 
the class of goods dealt in may be wholly dissimilar to the mer- 
chandise specified in the former application. 

St. 1895, c. 462, § 1, as amended by St. 1899, c. 359, § 1, per- 
mits the adoption of a label "not previously owned or adopted 
by any other person," and the latter part of the same section pro- 
vides that the Secretary shall not record any label that would 



304 



OPINIONS OF THE ATTORNEY-GENERAL. 



reasonably be mistaken for a label already on record. If these 
provisions be literally construed, the second applicant is not 
entitled to have his label recorded. 

I am aware that § 1 above quoted provides that the certificate 
of the applicant shall specify not only his class of business, but 
also "the class of merchandise and the particular description of 
goods comprised in such class to which" the label has been or is 
intended to be appropriated. If this provision stood alone, it 
might reasonably be argued that the applicant would be entitled 
to use his label exclusively only for the particular class of goods 
named in the certificate. 

But in view of the express provisions of the statute above 
quoted, I think that the provision requiring a specification of the 
class of business and the particular goods in the class must be 
intended as an identification and method of proof as to the use 
of the label rather than as a limitation upon the ownership of it. 
If, for example, one should register a label wdthout specifying 
upon what goods he had used or intended to use it, it might be 
difficult to determine whether his allegation of previous use were 
true. This construction reconciles the whole section and simpli- 
fies your duties. 

It follows that having ascertained that the label now claimed 
has already been recorded, it is your duty to refuse to act upon 
the later application. See 1 Op. Atty.-Gen. 100. 



State Paupers — Aid furnished by Cities and Towns — 
Rendering of Bill — Notice. 

The rendering to the Commonwealth of a bill for aid furnished by a city or town 
to a State pauper, as required by Pub. Sts., c. 86, § 43, does not terminate 
the liability of the Commonwealth to make reimbursement therefor so as to 
require a new notice from such city or town if the aid is thereafter continued. 



St. 1898, c. 425, § 5, amending Pub. Sts., c. 84, § 18, provides 
as follows: "A city or town may furnish aid to poor persons 



To the Super- 
inteiuli'iit of 
State Adult 
Poor. 

December 23. found therein, having no lawful settlement within the state, if the 
overseers of the poor deem it for the public interest; but except 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 305 

in case of sickness, not for a greater amount than two dollars a 
week for each family during the months of May to September 
inclusive, or three dollars a week for the months of October to 
April inclusive, and the overseers shall in every such case give 
immediate notice by mail to the state board of lunacy and 
charity, which board shall examine the case, and should they 
direct discontinuance shall remove such persons to the state 
almshouse or to any state or place where they belong, when the 
necessities of such persons or the public interest require such 
removal." 

This section is in harmony with the general policy of legisla- 
tion in Massachusetts in the matter of public aid to persons in 
distressed circumstances, which aims to secure immediate relief, 
leaving the question of liability to be thereafterwards deter- 
mined. It further exemplifies another well-established principle 
in the pauper legislation, which is, that persons in distress shall 
not be removed to public almshouses until it clearly appears that 
such removal is necessary. It is the duty of municipal authori- 
ties, both under this and under other statutes, to render aid at 
once. When the person so relieved is unsettled, notice of such 
aid is to be given forthwith to the Commonwealth, in order that 
the charge may be properly made to the State, and the question 
of removal is left to the decision of the State Board; and the 
liability of the State to the municipal authorities continues under 
the statute until the person is no longer in need of assistance or 
until the State causes the person so relieved to be taken to one 
of its almshouses. 

In the case submitted by your letter of August 8, a poor person 
was first assisted by the authorities of the town December 22, 
1900; notice was forthwith given to the Commonwealth; no 
removal was ordered by the State Board, and the assistance was 
continued until Januaiy 15, 1901; and the bill for assistance 
during that time has been rendered to the State by the town 
authorities. 

It would be clear, but for one circumstance which will be here- 
after considered, that under these circumstances due notice 
having been received by the State, and no action looking to the 



306 OPINIONS OF THE ATTORNEY-GENERAL. 

removal of the pauper having been taken, the State would be 
liable for the entire bill. The question is raised, however, by 
your letter, whether the State is liable after December 31, 1900, 
no new notice having been given by the town after that date. 

Whatever doubts exist upon the liability of the State arise 
upon the consideration of Pub. Sts., c. 86, § 43, which provides as 
follows: "All accounts against the commonwealth for allowance 
to counties, cities and towns, on account of state paupers, shall 
be rendered to the state board on or before the third Wednesday 
of January annually; and shall be so made as to include all 
claims for such charges up to the first day of said January, and, 
if approved by the board and certified by the auditor of accounts, 
shall be paid from the treasury of the commonwealth." 

It is suggested that if a bill be rendered by the town, including 
all charges up to December 31, in compliance with this statute, 
such a bill is presumed to be the closing of the account, and, con- 
sequently, the termination by the town of temporaiy assistance, 
so that if such assistance be continued beyond that period a new 
notice to the State is necessary. 

I am unable to appreciate the force of this contention. It may 
be conceded that under ordinary circumstances the rendering of 
a bill on behalf of the municipality is by implication a notice that 
the assistance by the town has terminated, so that if the town be 
called upon again to furnish assistance a new notice is necessary. 
But a bill rendered in obedience to the statute last quoted carries 
with it no such inference. The purpose of the statute obviously 
is to enable the Treasurer to make up a financial statement of the 
accounts of the Commonwealth for the year, so that all outstand- 
ing liabilities up to that time may be known ; and the rendering 
of a 1)111 in compliance with this statute cannot be taken to have 
any further significance. It is merely a statement that up to that 
date the State is indebted to the town to the amount stated, and 
nothing more. If, by way of illustration, a State required bills to 
be rendered monthly, it would hardly be contended that com- 
pliance with such a statute would make it necessary that a new 
contract of liabiUty should be made after the rendering of the 
monthly bill. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 307 

No unexpected liability can be said to devolve upon the Com- 
monwealth by the failure of the town to give a new notice after 
the end of the year. After the original notice is given, the 
authorities of the Commonwealth are presumed to be fully in- 
formed of the circumstances of the case, and of the condition of 
the pauper; and if they have determined not to remove the 
person assisted, it is for the reason that they deem it expedient 
to allow him to remain in the place where he is assisted. The 
mere fact of a bill being rendered because of a statute require- 
ment to that effect does not change the situation and cannot 
operate to discharge the Commonwealth of its responsibility for 
the pauper. 

I am of opinion, therefore, that the Commonwealth continues 
liable, notwithstanding the rendering of the bill required by Pub. 
Sts., c. 86, § 43. 

The same considerations apply to a case arising under what is 
commonly called the Sick State Poor Law. 



Great Ponds — Title to Islands — Board of Harbor and 
Land Commissioners. 

The title to islands within the area of great ponds is, in the absence of any grant 
from the Legislature, or from the freemen of a town, prior to 1647, in the 
Commonwealth, and the duties of the Board of Harbor and Land Commis- 
sioners relating to such islands are prescribed by Revised Laws, c. 96, § 3. 

Your letter of October 8 states that the Board of Harbor and Toti,e Board 

of Harbor and 

Land Commissioners desires to be informed "whether or not Land commis- 

sioners. 

islands in great ponds to which no private individual has title January?. 
are property of the Commonwealth, with reference to the posses- 
sion of which this Board has a duty to perform." 

The term "great pond" has been used in the statutes of the 
Commonwealth from time immemorial. It originally signified 
an inland body of water consisting of ten acres (Colony Ordinance 
of 1647) ; but this area was subsequently increased, in the case 
of the public right of fishing, to twenty acres (St. 1869, c. 384, 
§ 7). 



308 OPINIONS OF THE ATTORNEY-GENERAL. 

The original grants from the king, in the case of the Colony of 
Plymouth and the Colony of Massachusetts Bay as well, gave to 
the colony the title to all lands within the Conmionw^alth, in- 
cluding great ponds. This provision was also incorporated into 
the charter of the Province of Massachusetts Bay, and the title 
to such lands and ponds, unless previously parted with, was, 
both before and after the Revolution, in the State. "These 
charters [the several charters to the colonies and the Province] 
vested in the grantees not only the right of soil, but also large 
powers of government and the prerogatives of the crown in the 
seashores, bays, inlets, rivers and other property which were 
held for the use and benefit of all the subjects." Watuppa Res- 
ervoir Co. V, Fall River, 147 Mass. 548, 554. See also Common- 
wealth v. Roxbury, 9 Gray, 451, 483; Commonwealth v. Alger, 7 
Cush. 53. 

From a very early period the law of Massachusetts has treated 
great ponds as of a character closely resembling tide waters, the 
enjoyment of which for fishing, fowling and other purposes was 
common to all, and the title in and lands under which could not 
be made the subject of private ownership without special grant 
from the Legislature. Paine v. Woods, 108 Mass. 160; Ancient 
Charters, 148, 149. See also Commonwealth v. Vincent, 108 
Mass. 441 ; West Roxbury v. Stoddard, 7 Allen, 158. Thus it was 
provided in the Colony Ordinance of 1641 that every inhabitant 
should have free fishing and fowling in any great ponds . . . 
within the precincts of the town where they dwelt, unless the 
freemen of the town or the general court had provided other- 
wise. Body of Liberties, 1641. Later, it was provided that no 
town should appropriate to any person or persons any great pond 
containing more than ten acres. Ordinance of 1647. 

These ordinances applied to all great ponds exceeding ten acres 
in area which in 1647 had not been appropriated to particular 
persons, either by 'the freemen of the town or by the General 
Court. West Roxbury v. Stoddard, supra. The Commonwealth 
therefore owns the great ponds as public property held in trust 
for public purposes. It has the ownership of the soil, including, 
obviously, the soil of islands within the area of such ponds, and 



HOSEA M. lOTOWLTON, ATTORNEY-GENERAL. 309 

also the right to control and regulate the public uses to which 
the ponds shall be applied. Watuppa Reservoir Co.y. Fall River, 
147 Mass. 557. In such ponds a grant bounded by the pond 
extends only to low-water mark. Waterman v. Johnson, 13 Pick. 
261, 265; Paine v. Woods, 108 Mass. 160. The proprietors of 
land bordering upon the ponds have no rights in the soil or in 
the waters, unless it be by grant from the Legislature. Watuppa 
Reservoir Co. v. Fall River, 147 Mass. 557. 

It follows that the title to lands in great ponds is, in the ab- 
sence of any grant from the Legislature or from the freemen of a 
town, prior to 1647, in the Commonwealth. Being lands the 
title to which is in the Commonwealth, the duties of your Board 
relating to the same are prescribed by Revised Laws, c. 96, § 3. 



Employee of Commonwealth — Salary — Additional 
Compensation. 

An employee of the Commonwealth, who receives a salary from the State treasury, 
cannot legally receive additional compensation for work performed during 
the hours of employment for which such salary is paid. 

The opinion of the Attorney-General is desired upon the fol- '^Pl'^^^^'"*^* 
lowing state of facts: a clerk in the boiler inspection department oigtricfpoiice 
of your office receives a salary of $600 a year from the State janu^^yT. 
treasury, "said sum to be paid out of the proceeds of the fees 
received from examinations of applicants for licenses as engineers 
and for inspection of boilers." St. 1898, c. 219. She has also 
been employed by you for clerical work in connection with the 
sale of forfeited liquors, for which she receives compensation at 
the rate of $33 per month. This work is done during the regular 
hours of business, that is to say, during the time for which she is 
supposed to be compensated by the salary of $600 a year. The 
question submitted is, whether she may lawfully be so employed. 

I am not troubled by the provision in the Revised Laws, c. 18, 
§ 11, that "a person shall not at the same time receive more than 
one salary from the treasuiy of the Commonwealth." The un- 
doubted intention of that statute was to prevent a person from 



310 OPINIONS OF THE ATTORNEY-GENERAL. 

being employed in two positions at the same time, receiving 
salary from each one. It does not prevent the payment of com- 
pensation for extra services not rendered during the usual hours 
of employment in the position for which the person is employed. 
It has been the immemorial practice in the State House to 
permit the employment of those receiving salaries, during extra 
hours and for extra compensation. This, of course, would not 
apply to general State officers, but only to clerks whose con- 
tract ordinarily is for services during regular office hours. More- 
over, although the compensation paid in this case is deducted 
from the amount eventually paid into the State treasury, the 
compensation paid to the clerk in question is not paid ''from 
the treasury of the Commonwealth," as provided in the statute. 

But, upon another ground, I am of opinion that the employ- 
ment is unauthorized. The salary paid is for certain hours of 
work each business day. Revised Laws, c. 6, § 58, provides that 
"salaries payable from the treasury shall, unless otherwise pro- 
vided, be paid on the first day of each month, and shall be in full 
for all services rendered to the Commonwealth by the persons to 
whom they are paid." This section is to be construed as mean- 
ing that the salary shall be in full for all the services rendered in 
the position for which the person receiving the salary is em- 
ployed, and does not prohibit paying compensation for extra 
services having no connection with the duties of that position. 
It is, however, inconsistent with the employment of a person in 
two capacities during the time when the person so employed is 
presumed to be engaged in the discharge of the duties of the office 
for which the salary was paid. 

For this reason I am of opinion that the person in question 
cannot be paid for services rendered during the time for which 
she is employed under the salary payable from the State treasury. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 311 

Gas Company — New England Gas and Coke Company — 
Unincorporated Association — Manufacture of Gas 
— Returns to Gas and Electric Light Commissioners. 

The New England Gas and Coke Company, an unincorporated association of in- 
dividuals, engaged in the naanufacture and sale of gas to certain corporations 
for the purpose of sale and distribution to the public by the latter, is not 
itself engaged in the business of the sale and distribution of gas to consumers, 
and therefore is not subject to the jurisdiction of the Gas and Electric Light 
Commissioners in the matter of the returns prescribed by Revised Laws, 
c. 121. 

In a letter to you dated January 26, 1899/ I had the honor to to the Board 

,. T-, • •• -ii • • ^• !_• X. of Gas and 

advise your Board that m my opinion it had no jurisdiction to Eiectnc Light 
require the New England Gas and Coke Company to make the ^^^^^^^^ 
annual returns to the Board required by the statutes of gas com- January i. 
panics, or to furnish information touching the condition, man- 
agement and operation of the company. This opinion was based 
upon the facts then submitted by your Board, to wit, that the 
company in question was not a corporation, but only an associa- 
tion of individuals, and that it was not then engaged in the 
manufacture of gas. 

It now appears, however, that the company has installed a 
plant, and is engaged, and during the past year has been engaged, 
in the manufacture and sale of gas; but it further appears that 
its entire product is sold and delivered on its premises to the 
Massachusetts Pipe Line Company, which in turn sells and de- 
livers the gas so received to companies in the city of Boston 
engaged in the sale and distribution of gas to consumers. The 
opinion of the Attorney-General is required, upon this state of 
facts, as to the liability of the company under the provisions of 
the statutes relating to gas and electric light companies. Revised 
Laws, c. 121. Certain of the provisions of that chapter are by 
§ 41 made applicable to "all persons owning or operating works 
for the manufacture and sale of gas for heating or illuminating 
purposes within the Commonwealth." Although the business 
of the company in question is to not sell its product directly for 
heating or illuminating purposes, but to a corporation for the 
purpose of sale and distribution by that corporation for those 

' Ante, p. 8. 



312 OPINIONS OF THE ATTORNEY-GENERAL. 

purposes, and is therefore not strictly within the terms of § 41, 
yet, for the purposes of this opinion, I assume that the language 
of the section is broad enough to include the individuals com- 
posing the company in question. They are an association of 
individuals not forming a corporation, engaged in the manufac- 
ture and sale of gas intended to be used for heating or illuminat- 
ing purposes; and, if the statute is to be taken literally, they are 
bound to make returns to your Board, to permit inspection of 
their books, to furnish information as to the conduct of their 
business, and are subject to the orders of the Board as to the 
quality of gas furnished by them and as to the price to be 
charged by them therefor. 

Upon the facts submitted, however, I am of opinion that they 
are not within the scope of the statutes. I am led to this con- 
clusion by a consideration of the purpose and justification of the 
statutes of the Commonwealth relating to the subject. 

I do not deem it necessary to rest the justification for the regu- 
lations exercised by your Board over gas companies upon the 
proposition that they derive their authority from the Common- 
wealth, and are therefore under its control as to the conduct of 
their business. Speaking for myself, I see no reason why a cor- 
poration, whose charter is expressly made subject to all provisions 
of general laws, does not thereby contract that it will be governed 
by such provisions, at whatever cost to itself. I am aware, 
however, that the weight of authority is that regulation by the 
State must stop short of anything approaching that which may 
result in partial or total confiscation of its property, even though 
such confiscation be, by imphcation, within the powers conferred 
by the statutes to which, under its charter, it is made subject. 

But there is another principle of law which amply sustains the 
authority of the Legislature to make the regulations contained 
in the statutes relating to gas and electric light corporations. 
Under our frame of free government, the Legislature has rarely 
attempted to regulate or in any way to interfere with the busi- 
ness of the individual, or to restrain or in any way to regulate 
the conduct of his affairs. This principle extends in general to 
corporations which have no special relations with the public. 



HOSEA M. KNOWLTON, ATTORNEY-GENERAL. 313 

But there is a class of corporations, soiiietimes termed "quasi- 
public," but which are more accurately termed "public-service" 
corporations, as to which the Legislature has undertaken to regu- 
late their business, so far as such business relates to the public. 
Among these are corporations operating steam or electric rail- 
ways, those engaged in telegraph or telephone business, and 
corporations carrying on the business of selling and distributing 
gas and electricity for heating and illuminating purposes. It is 
not accurate to say of such that they serve the public. In a gen- 
eral way a grocer may be said to serve the public, because he 
sells to all who come to his store. But he may discriminate, and 
may refuse to sell only to such as he chooses. The public-ser- 
vice corporations, on the contrary, undertake to serve all mem- 
bers of the community who have occasion to avail themselves 
thereof. In this respect they are analogous to innkeepers and 
common carriers, whose business from time immemorial has 
been subject to statutory regulation. 

But the relations of public-service corporations to the public 
are closer even than those of common carriers and innkeepers, for 
the reason that the former enjoy franchises in public ways which 
could not lawfully be granted to private individuals, or have the 
right to take land of private individuals by condemnation pro- 
ceedings for the purposes of their business. By reason of these 
rights they enjoy a practical monopoly, either in fact or by law, 
of the business in which they are engaged. In consideration of 
these rights, they must undertake to serve the public indiscrim- 
inately. 

I am aware that in the case of Commonwealth v. Lowell Gas 
Light Company, 12 Allen, 75, there is a dictum of Chief Justice 
Bigelow, as follows: "They [gas companies] are not bound to 
sell and dispose of it [their product] to any one either for public 
or private use or consumption." This statement, however, has 
not been followed in later decisions, and in the case of Evans v. 
Boston Heating Company, 157 Mass. 37, and in the Opinion of 
the Justices, 155 Mass. 598, the soundness of this dictum is by 
implication questioned; and it may be doubted whether, if the 
question were presented directly, the court would not now hold 



314 OPINIONS OF THE ATTORNEY-GENERAL. 

that a gas company in the enjoyment of public rights could not 
refuse to sell its product to any member of the community com- 
plying with its reasonable regulations. But, however that may 
be, all doubts as to the duties of gas companies are settled by the 
statutes. Revised Laws, c, 121, gives such companies, by § 26, 
a practical monopoly of the streets occupied by them for the 
purposes of their business; and § 33 authorizes your Board to 
compel them to furnish their product to any person or corpora- 
tion applying therefor. 

Being thus in the service of the public, and in the enjoyment 
of a legal or actual monopoly, there can be no doubt of the right 
of the Legislature to enact regulations for the protection of the 
customer. There are many such regulations. Among other 
things, your Board may prescribe how their books and accounts 
shall be kept (§ 29) ; it may require a gas company to supply its 
product to a resident of the city within w^hich it is located (§ 33) ; 
it may make such regulations as it deems proper with relation 
to the quality or price of gas furnished (§ 34), and every gas 
company must furnish to the Board a sworn statement, with 
such details as the Board may require, of its indebtedness and 
financial condition, the amount of its dividends, the names of 
its salaried officers and the amount of salary paid to each (§ 31). 
It may also at any time investigate the affairs of a gas company, 
.examine its books and inquire into the conduct of its business. 
Such regulations would be intolerable as applied to a private 
individual carrying on business not connected with the public, 
but they are amply justified upon the considerations stated. 

For the same reasons, individuals who enjoy public rights and 
undertake to carry on the business of selling and distributing to 
consumers are properly made subject to the same regulations. 

But when there is no possible relation between the gas manu- 
facturer and the public, the justification for the regulation so 
imposed is entirely wanting. Whether it was the purpose of the 
Legislature to make the regulations imposed applicable to all 
incorporated gas companies, whether actually engaged in the 
business of manufacturing and selling gas, it is unnecessary to 
determine. But it is not to be presumed, unless the intention 
be clearly expressed, that it was the purpose of the Legislature 



i 



HOSEA M. KNOWLTOX, ATTORNEY-GENERAL. 315 

to impose upon an individual enjoying no public rights, and hav- 
ing no relations with the public, a supervision so extraordinary 
and minute. The company in question has no rights in public 
highways'; it makes no contracts and fixes no price with con- 
sumers. There is no more occasion for supervision of their do- 
ings, in my judgment, than there would be m supervising the 
condition and operation of a coal company which supplies to a 
gas company the material for producing its gas. The purposes 
for the enactment of the statute entirely fail, and, while there is 
no express exception, it is, nevertheless, in my opinion, a reason- 
able construction of the law to hold that it was not intended to 
cover a case like the present. 

It may be contended that this construction of the law operates 
to prevent your Board from ascertaining the cost of the gas fm'- 
nished to the citizens of Boston by the companies distributing 
it. Even if this objection were well taken, it is one which is to 
be dealt with by the Legislature. But I see no such difficulty. 
It is to be presumed that the commission is able to ascertain, 
either upon its own knowledge or by the evidence of suitable ex- 
perts, what the gas furnished by the Boston companies ought to 
cost, and to regulate the price accordingly. If the gas company 
has made an improvident bargain with the New England Gas 
and Coke Company, that is a matter which does not concern 
your Board, and they must suffer the loss if the reasonable price 
of gas be fixed by the Board at such a rate as makes it a losing 
contract. In other words, if they are incorporated for the pur- 
pose of manufacturing gas, they must sell gas at what it ought 
to cost them to manufacture it, plvs a reasonable profit. If they 
see fit to employ another person or association of persons to 
make their gas for them, your duty is not altered thereby. It is 
not to investigate the business of the contractor, but to regulate 
the price of the gas supplied by the distributing company, re- 
gardless of their private contract with the manufacturer. 

I am of opinion, therefore, that the association of individuals 
known as the New England Gas and Coke Company, not being 
engaged in the business of the sale and distribution of gas to con- 
sumers, is not subject to the jurisdiction of your Board. 



316 OPINIONS OF THE attorney-gj:neral. 



OPINIONS 



HERBERT PARKER. ATTORNEY-GENERAL. 



Towns — Public Library — Support. 

A library, situated in a town, to whicli the inhabitants tliereof liave free access, 
and of wliich they have the use, although it is not owned or controlled by 
the town, is a public library within the meaning of R. L., c. 102, § 163, which 
provides that money received from the issuance of dog licenses shall be 
returned to cities and towns to be expended for the support of public 
libraries or schools. 

To the Free Youp letter of Jaiiuarv 16 requests the opinion of the Attor- 

Pubhc Library ^ i i 

Commission. ney-General upon the question whether a town may lawfully 

Ja nuary 18. appropriate money received from dog licenses to the support 

and maintenance of any library to which the inhabitants have 

free access and of which they have the use, although such library 

is not owned and controlled by the town. 

R. L., c. 102^ § 163, provides that money received under the 
provisions relating to dogs shall be paid back to the treasurers 
of the cities and towns, "and the money so refunded shall be 
expended for the support of public libraries or schools;" R. L., 
c. 25 § 15, provides that a town may appropriate money for 
the following purposes, among others: 'Tor the establishment, 
maintenance or increase of a public library therein, and for the 
erection or provision of suitable buildings or rooms therefor;" 
and ''For maintaining a library therein, to which the inhabit- 
ants have free access and of which they have the use, and for 
establishing and maintaining a pul^lic reading-room in connec- 
tion with and under the control of the managers of such library." 
The question is, whether a library not owned and controlled 
by the town, yet open to the free access and use of the inhabit- 



HERBERT PARKER, ATTORNEY-GENERAL. 317 

ants of the town, is a public library within the meaning of c. 102, 
§ 163. The apparent argument against including such a hbrary 
within the phrase "pubUc library" is that in c. 25, § 15, above 
quoted, the Legislature seems to make a distinction between 
such library and a public library, by providing, in separate para- 
graphs, for their maintenance. I am of opinion, however, that 
no such distinction was intended, and that, whether a library is 
owned by the town or not, dog license money may be appro- 
priated to it so long as the inhabitants of the town have free 
access to it. 



Trust Company — Place of Business — Branch Office. 

A trust company may legally receive or disburse money at a place other than its 
main office; and, subject to the provisions of R. L., c. 116, § 35, may pur- 
chase and hold real estate for the purpose of maintaining a branch office. 

The first question submitted by your letter is, whether a trust ofsavin"'^'^*^ 
company, subject to the provisions of R. L., c. 116, may receive mts^'iomirs!" 
or pay out money at any place other than at its main office. janiarV^o. 

Receiving deposits and paying checks at a branch office is in- 
cidental to the business of a trust company, and may be done 
unless prohibited by statute. R. L., c. 116 (the act relating to 
trust companies), contains no such prohibition. The act relat- 
ing to banks and banking (R. L., c. 115), however, provides as 
follows: "Section 30. A bank shall carry on, at its banking 
house only, the usual business of banking, and no loan or dis- 
count shall be made, nor shall a bill or note be issued by such 
bank, or by any person on its account, in any other place than 
at its banking house." There is a similar prohibition in the law 
regulating savings banks (R. L., c. 113, § 20) and co-operative 
banks (R. L., c. 114, § 27). 

Since our statutes have made this distinction between trust 
companies and other banking institutions, I am of opinion that 
your question must be answered in the affirmative. See Nash 
V. Brown, 165 Mass. 384. 

Your second inquiry is as follows: "Can such company, hiring 
and occupying offices for its general business, purchase and hold 



318 OPINIONS OF THE ATTORNEY-GENERAL. 

other real estate in the same city for an office in which to receive 
and pay out money? " This question is answered by R. L., 
c. 116, § 35, which is as follows: "Such corporation may hold real 
estate unencumbered by mortgage suitable for the transaction 
of its business to an amount including the cost of alterations and 
additions in the nature of permanent fixtures, not exceeding 
twenty-five per cent of its capital actually paid in, and in no 
case to exceed two hundred and fifty thousand dollars; but the 
provisions of this section shall not require such corporation to 
change an investment legally made prior to the eighteenth day 
of April in the year eighteen hundred and ninety-four." 



January 22. 



Registered Pharmacist — Examination — Inability of Can- 
didate TO understand the English Language. 

A person who presents himself as a candidate for examination for registration as 
a pharmacist is not necessarily debarred therefrom because he is unable to 
speak, read or write the English language. 

of^Re^nftratfon Your letter rcquires the opinion of the Attorney-General upon 
^° ^I'.J^""*'^'^ ■ the question whether your Board is required by law to examine 
an applicant for registration who is unable to speak, read or write 
the English language. 

The statute defining your duty is R, L., c. 76, § 14: "A person 
who desires to do business as a pharmacist shall, upon payment 
of five dollars, be entitled to examination, and if found quali- 
fied shall be registered as a pharmacist and shall receive a certifi- 
cate signed by the president and secretary of said board." 

I am aware of no provision of law which denies to any person 
the right to enter upon legitimate fields of labor or enterprise for 
the sole reason that he is unacquainted with the English language. 
Whether such a person is qualified to be registered as a pharma- 
cist is a question for your Board alone. 



HERBERT PARKER, ATTORNEY-GENERAL. 319 



Pauper — Settlement. 

A widow, owning and occupying an estate of inheritance or freehold for three 

consecutive years, may thereby acquire a settlement, in accordance with 

the provisions of R. L., c. 80, § 1, cl. 4. 
Under the provisions of R. L., c. 80, § 1, cl. 5, not only the assessment of the taxes 

specified therein but also the payment thereof must be made within a period 

of five consecutive years. 

Your letter of January 18 requests the opinion of the Attor- to the super- 

_, , 1 r 11 • • intendentof 

ney-Generai upon the loUowing questions : — state Aduit 

1. "Can a widow obtain a settlement in a town by ownership j ^^oa 



and occupancy of real estate for three years under R. L., c. 80, 
§ 1, cl. 4?" 

This clause provides that a person of the age of twenty-one 
years, who has an estate of inheritance or freehold in any place 
within the Commonwealth, and lives thereon three consecutive 
years, shall thereby acquire a settlement in such place. I am of 
the opinion that under this statute a widow may obtain a settle- 
ment by fulfilling the requirements therein set forth. Orleans v. 
Chatham, 2 Pick. 29. See Spencer v. Leicester, 140 Mass. 224. 

2. "A pauper who has been a resident of the city of Cambridge 
from May 1, 1894, to the present time, was assessed poll taxes 
in 1894, 1895 and 1896, which taxes were paid on October 17, 
1895, January 12, 1898, and November 13, 1900, respectively. 
Has such pauper a legal settlement in the city of Cambridge 
under the provisions of R. L., c. 80, § 1, cl. 5?" 

This clause provides that a person of the age of twenty-one 
years, who resides in any place within this Commonwealth for 
five consecutive years, and within that time pays all State, 
county, city or town taxes, duly assessed on his poll or estate 
for any three years within that time, shall thereby acquire a 
settlement in such place. I am of the opinion that it was clearly 
the intention of the Legislature to require that not only the 
assessment of the specified taxes, but also the payment thereof, 
should be made within the period of five consecutive years. See 
P. S., c. 83, § 1, cl. 5; 1 Op. Atty.-Gen. 519; St. 1898, c. 425, § 1. 

It follows, therefore, that the pauper in question did not 
acquire a settlement in Cambridge. 



January 23. 



320 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Adjutant- 
General. 

19(12 
February 6. 



MiLiTL\ — Board of Examiners — Commissioned Officer — 
Inability to appear for Examination by Reason of 
Sickness. 

The Board of Examiners may accept competent proof of the inability of an officer 
to appear before such Board for examination within the limit of time re- 
quired by R. L., c. 16, § 57; and, if such inabiUty was occasioned by ill 
health, may postpone the time of examination 

You inquire, in your letter of January 25 to this department: 
First, if an officer, duly elected and commissioned in the militia, 
and ordered to appear for examination, as required, within 
forty days, and who, by reason of sickness, fails to appear, and, 
as evidence of his inability to appear from such cause, furnishes 
to the Board of Examiners the certificate of his attending physi- 
cian, does such officer come within the provisions of R. L., c. 16, 
§ 57? Second, is it obligatory that such officer, who did appear 
before the examining Board after the expiration of forty days, 
and was examined and found competent, must be discharged? 

To your first question I have to say that, while the language 
of the statute to which you refer is in form directory, it should 
be construed liberally enough to permit the Board of Examiners 
to accept competent proof of an officer's inability to appear 
before it within the required limit of time; and the Board of 
Examiners, being satisfied that the inability was caused by ill 
health, may, in my opinion, postpone the time of examination, 
and the examination then held would be within the intent and 
purpose of the statute. 

To your second question I have to say that I am of opinion 
that, if the officer be found qualified upon such postponed exam- 
ination, he neither ought to, nor must, be discharged from the 
service ; but the result of such examination would be the same as 
if the examination had been held within the limit of time fixed 
by the statute. 



HERBERT PARKER, ATTORNEY-GENERAL. 321 



Commissioners on Fisheries and Game — Protection of 
Lobsters — Short Lobsters. 

R. L., c. 91, § 88, in terms makes the possession of protected lobsters an offence, 
without regard to the place where they were caught or the intent of the 
possessor as to their disposition. 



You request the opinion of the Attorney-General upon the TotheCom- 
construction of the statute relating to lobsters. FisherieTand 

R. L., c. 91, § 88, provides that whoever sells or offers for sale, 1902 ' 

' March 14. 

or has in his possession, an uncooked lobster less than ten and 

one-half inches in length, shall forfeit a penalty for every such 
lobster. 

First. — This section in terms makes it an offence to have in 
one's possession protected lobsters, without regard to the place 
where they were caught, and without regard to the intent of the 
person in possession as to their disposition. It applies as well to 
lobsters imported from other States or countries as to lobsters 
caught within the waters of this Commonwealth. Its evident 
object is to prevent Massachusetts lobsters from being sold 
under pretence of their having been imported. Commonwealth 
v. Savage, 155 Mass. 278. 

It is to be noted that the statute makes a distinction between 
short lobsters and egg-bearing lobsters. In § 86 the penalty is 
provided only for selling egg-bearing lobsters, or having them in 
one's possession with intent to sell them. 

Second. — In the event that State officers, duly authorized to 
enforce the fish and game laws, find among packages of imported 
lobsters any the possession of which is prohibited, they may 
seize such lobsters and put them into Massachusetts waters. 
R. L., c. 91, § 91. But if lobsters so found are in fact merely 
in transit through this Commonwealth to another jurisdiction, 
with no intent whatever to make disposition of them here, the 
authority to make seizures is not, in my opinion, clear. See 
Commonwealth v. Young, 165 Mass. 396, 

Third. — The fact that a Massachusetts dealer receives pro- 
tected lobsters from the British Provinces on a Way-bill to 



322 OPINIONS OF THE ATTORNEY-GENERAL. 

Boston, though he subsequently ships them without the Com- 
monwealth, may warrant a finding that he was illegally in posses- 
sion of them. Whether he was a mere forwarding agent for the 
foreign owners is a question to be determined only from the facts 
of each case. If it were proved that such dealer was a mere 
forwarding agent, and the protected lobsters were found here 
only in transit to another jurisdiction, it is not settled that such 
facts would be a valid defence. In Commonwealth v. Young, 
supra, this question is expressly left open. 



Civil Service — Employee — Discharge — Reinstatement. 

The discharge of an employee by an official lawfully empowered thereto, dulj' 
certified to and recorded by the Civil Service Commission, cannot be with- 
drawn and such employee reinstated by the successor in office of such official. 

service^com- ^^ answcr to your inquiry set forth in your letter of February 
™iM2°"' 15,1 state my opinion upon the several points as follows : — 

^Z!2if ■ The facts upon which the inquiry is based are plainly and sub- 

stantially set forth in your letter, and I understand them to be 
in effect as follows: one Patrick Geoghegan was an inspector of 
work in the street department of Boston, where he had been em- 
ployed for many years prior to March 25, 1901, when he was 
discharged by the then superintendent of streets, having author- 
ity to make such discharge. A due record was made, stating 
that the cause of discharge was for the good of the service. The 
position formerly held by Geoghegan was included within civil 
service classifications. The discharge was duly reported to the 
Civil Service Commission. 

I am advised that the superintendent of streets who made 
the discharge has retired from office, and a successor is now 
acting in his place. The latter now submits to your Board a 
request that he be permitted to withdraw the discharge, and 
thereby restore the former employee to his place. The reason 
suggested for this withdrawal is that the present superintendent 
of streets is of the opinion that the discharge was based upon 
errors of fact, or was in fact unjustifiable, the discharge not being 



HERBERT PARKER, ATTORNEY-GENERAL. 323 

impeached upon any ground of a clerical error in the record, but 
upon the facts which the record correctly sets forth. 

I am of the opinion that the discharge, having been made by one 
lawfully empowered to make it, and it having been duly recorded 
and certified to your Board, must be held, for the purposes of 
your administration, to be conclusive. I am of the opinion that 
you may not and ought not to consent to the withdrawal of the 
discharge as suggested by the present superintendent of streets, 
and, indeed, I know of no authority that would permit you to 
give this permission. Assuming, therefore, as we must, that, the 
discharge having been made, a vacancy in the position now 
exists, it can be filled only in compliance with the rules of the 
commission by a new appointment. 

The law appears to be perfectly clear, and the reason for the 
law is as plainly evident; for if, upon every change of adminis- 
tration in any department of service subject to the ruling of your 
commission, the records of discharges or adjudications by former 
incumbents of office were to be reviewed, vacated or set aside, 
obviously great confusion would result, and the plain intent of 
the civil service law would be evaded. 



Board of Commissioners of Savings Banks — Investments 
FOR, Savings Banks — Bonds of Town of Danbury, 
Conn. — Valuation — Town Assessors. 

In determining whether or not bonds issued by the town of Danbury, Conn., 

may be a legal investment for Massachusetts savings banks, under the pro- • 

visions of R. L., c. 113, § 26, which permits investment to be made in the 

bonds of any town in Connecticut whose net indebtedness does not exceed 

three per cent, of the last preceding valuation of the property therein for 

the assessment of taxes, the Board of Commissioners of Savings Banks must 

be guided by the valuation of the town assessors, and not by that of the 

State Board of Equalization of Connecticut, whose function under the laws 

of that State is simply to adjust the valuations among the several towns so 

that the burden of the State tax may bear equally upon them. 

You request my opinion whether an issue of bonds by the town to the Board 

^ '^ ^ •'of Savings 

of Danbury, Conn., may be a legal investment for Massachusetts Banks com- 

'' ' y J o missioners. 

savings banks. ^^^rus. 



324 OPIXIONS OF THE ATTORNEY-GENERAL. 

R.L.,c. 113,§26, provides that such investment may be made 
in the bonds of any town of Connecticut whose net indebtedness 
does not exceed three per cent, of the ''last preceding vakiation 
of the property therein for the assessment of taxes." The last 
assessed valuation of the property of Danbury, as reported by 
the town to the State Board of Equalization was $7,978,801. To 
this the State Board added $5,110,000, making the last valuation 
of Danbury, upon which as a basis State taxes are imposed, 
$13,088,801. The net indebtedness of the town, including this 
bond issue, is more than three per cent, of the last town valuation 
and less than three per cent, of the last State valuation; there- 
fore, it is necessary to decide which is the valuation contemplated 
by our statute. 

The last valuation by the State Board, being a valuation of the 
property in the town for the assessment of State taxes, is in a 
sense within the letter of the statute. It is the completed valua- 
tion which, for the purposes of the State tax, must be substituted 
by the town clerk for the valuation as made up by the town 
authorities. Since the town might evade its proper share of the 
State tax by making a low valuation and adopting a high rate, 
the designed effect of the State Board's action is to hold each 
town to its fair share of the burden. The State Board, however, 
does not make a revaluation in detail of the items appraised 
by the town assessors; and, in my opinion, the result which it 
reaches is rather an estimate of the town's share of the public 
burden than a strict valuation of the town's property, such as 
our statute contemplates. 

The proceedings required by the law of Connecticut, G. S., 
§§ 3815 to 3894, are in brief as follows: each town assessor 
equalizes his list of valuations and lodges it in the town clerk's 
office on or before December 31. Thereupon the Board of Relief, 
a town Board, meets, and determines all appeals and equalizes 
and adjusts the assessed valuations of all the assessment lists. 
From the action of this Board appeal lies to the Superior Court. 
The town clerk, on or before March 1, sends an abstract of the 
lists thus corrected by the Board of Relief to the State comp- 
troller. Then the State Board of Equalization, consisting of the 



HERBERT PARKER, ATTORNEY-GENERAL. 325 

comptroller and treasurer, meets to "equalize and adjust the 
assessment lists of each town by adding to or deducting from 
its lists or any part thereof such amount as, when compared with 
the valuations of other towns, will equalize the same." These 
lists, after they have been so equalized and adjusted, constitute 
the general list of the State upon which the State taxes are im- 
posed. Thereupon the town clerk is notified of any change made 
by the State Board. He makes his town list correspond, and the 
State taxes are levied and collected on the list as so modified. 

Valuation is a judicial process. There must be some sort of 
opportunity to be heard on the question of value, else the tax- 
payer's property is taken without due process of law. See Hagar 
V. Reclamation District, 111 U. S. 701; Kentucky Railroad Tax 
Cases, 115 U. S. 321. This is afforded by the proceedings in the 
equalization by the Board of Relief, with appeal to the Superior 
Court. There can be no question, therefore, that the valuation 
of $7,978,801 is a legal one. 

The State Board, on the other hand, determines without a 
hearing, and adds to the town valuations with no statutory limit 
upon its discretion. In the present case it has nearly doubled the 
valuation of Danbury. Without suggesting that in this instance 
it has exceeded its power, I think the Board might increase the 
valuation of a town to such an extent that the increased tax 
required of a town would amount to the taking of property with- 
out due process of law, or to an unreasonable discrimination 
against the town. In re de las Casas, 180 Mass. 471. 

In view of the facts that the town valuation as equalized by 
the Board of Relief is undeniably valid ; that the function of the 
State Board of Equalization is simply to adjust the valuations 
among the towns so that the State tax may bear equally upon 
them; that this adjustment is liable to possible abuse, and is in 
strictness not a valuation of property within the town at all, — 
I am of the opinion that your Board should be governed by the 
valuation of the town assessors. 



326 OPINIONS OF THE ATTORNEY-GENERAL. 

Public Parks or Boulevards — Regulation of Advertise- 
ments — Police Power — Public Nuisance — Compen- 
sation, 

Local authorities in the various cities and towns of the Commonwealth have no 
authority under existing laws to regulate or restrict the display of advertise- 
ments beyond the limits of public parks, boulevards and ways. 

A bill providing that the authorities having charge of parks or parkways may 
make such reasonable rules and regulations respecting the display of signs, 
posters or advertisements, near and visible from public parks or boulevards, 
as they maj' deem necessary for preserving the objects for which parks or 
boulevards are established and maintained, and that, after publication of 
such regulations, any sign, poster or advertisement maintained in violation 
of them shall be a public nuisance, is a valid exercise of the police power, 
and neither owners of property affected, nor persons having contracts for 
advertising prevented thereby from performing the same, would be entitled 
to compensation.' 

To the House J have the honor to acknowledge the receipt of the order of 

of Representa- " ^ 

**l902. ^^^ House of Representatives, adopted March 20, 1902, requiring 

^P"' ^ - my opinion upon the following questions, viz.: — 

"1. In case Senate Bill No. 57, House Bill No. 621, House Bill 
No. 811, or any similar bill regulating and restricting the display 
of signs, posters and advertisements on or near any public parks 
and boulevards, should be enacted into law, would owners of 
property affected by such legislation, or persons having contracts 
for advertising which could not be lawfully performed by reason 
of such legislation, be entitled to compensation? 

"2. If the persons referred to in the foregoing questions are 
entitled to compensation, can the General Court, by any form 
of statute, deprive them of that right or prevent the right from 
coming into existence? 

"3. Have the local authorities in the various cities and towns 
of the Commonwealth authority under existing laws to regulate 
and restrict the display of advertisements on or near public 
parks and boulevards?" 

In the consideration of these inquiries, I take them out of the 
order in which they are presented. In answer to the third in- 
quiry, I am of opinion that the local authorities in the various 
cities and towns of the Commonwealth have power, under exist- 

' But see Commonwealth v. Boston Advertising Co., 188 Mass. 348. 



HERBERT PARKER, ATTORNEY-GENERAL. 327 

ing laws, to regulate and restrict the display of advertisements 
only within the limits of pubHc parks, boulevards and public 
ways. At the boundary of private land their authority ceases. 

The second inquiry is stated in this form: "If the persons 
(owning property affected by the proposed legislation, or having 
contracts for advertising which could not be lawfully performed 
by reason of such legislation) are entitled to compensation, can 
the General Court, by any form of statute, deprive them of that 
right or prevent the right from coming into existence?" 

Confining myself to the precise form of the question, I reply 
that no statute nor phrase of legislation can constitutionally de- 
prive a citizen of compensation to which he is lawfully entitled. 
It may be, however, that this direct reply does not measure the 
full scope of the inquiry intended by the Honorable House of 
Representatives to be transmitted to me. 

I answer, further therefore, that I am of opinion that the Leg- 
islature may, within the lawful exercise of the police power, im- 
pose restrictions upon the use and enjoyment of private prop- 
erty, and that no right to recover damages is thereby created, 
the reason being that no private right in such case has been vio- 
lated, and no property of the citizen taken, since all ownership 
of property is conditioned upon, and subject to, the right of the 
public exercised through legislative authority, to restrict the 
enjoyment of private property in such reasonable manner and 
to such reasonable degree as the public safety and welfare may 
require. The exercise of this police power must, however, always 
be conditioned upon the circumstances which gave rise to its in- 
vocation. Not every taking, nor restriction, of the use of prop- 
erty, by public authority and without compensation, can be 
justified under the police power. The restriction must be, if not 
necessary, at least reasonable. If it be the intent of the Legis- 
lature to exercise this police power, it must be unequivocally 
expressed in the act, and this may, perhaps, best be accom- 
plished by making no provision for compensation. There must 
be no conditional nor alternative provision in this regard. If the 
act be a lawful exercise of police power, the owner of property 
has, and can have, no right to compensation. If the legislation 



328 OPINIONS OF THE ATTORNEY-GENERAL. 

be not within the lawful limitation of the police power, any im- 
pairment of property rights thereunder would be inoperative, as 
unconstitutional. I am led, then, to consider the hmitations 
which define the scope of this police power, upon the issues raised 
by the first inquiry, of the Honorable House of Representatives 
which is stated as follows: "In case Senate Bill No. 57, House 
Bill No. 621, House Bill No. 811, or any similar bill regulating 
and restricting the display of signs, posters and advertisements 
on or near public parks and boulevards, should be enacted into 
law, would owners of property affected by such legislation, or 
persons having contracts for advertising which could not be law- 
fully performed by reason of such legislation, be entitled to com- 
pensation?" 

Senate Bill No. 57 differs from the two House bills in that it 
gives the local authorities power to determine the character of 
all offences. Such power might be exercised in such a way as to 
make the statute objectionable. This bill and House Bill No. 
811 fix a limit in feet beyond which the rules of the park author- 
ities shall have no effect. In my opinion, such limitation is 
unnecessary to the validity of the act, and is arbitrary in its 
effect. 

I discuss, therefore, only House Bill No. 621, which seems best 
designed to accomplish what I assume to be the intent of the 
Legislature, and carefully guards the rights of property owners. 

The bill provides that the authorities having charge of parks 
or parkways may make such reasonable rules and regulations 
respecting the display of signs, posters or advertisements, near, 
and visible from, public parks or boulevards, as they may deem 
necessary for preserving the objects for which such parks or 
boulevards are established or maintained; and that, after pub- 
lication of the regulations, any sign, poster or advertisement 
maintained in violation of them shall be a public nuisance. 

Any use of private property which materially interferes with 
the public comfort, except in those cases where the reasonable 
requirements of the owner afford him justification or excuse, is 
a nuisance. Noises and odors have always been treated as nui- 
sances, even without legislative adjudication that they are un- 



HERBERT PARKER, ATTORNEY-GENERAL. 329 

wholesome. Davis v. Sawyer, 133 Mass. 289; Commonwealth v. 
Harris, 101 Mass. 29; Commonwealth v. Perry, 139 Mass. 198. 

There is no legal reason why an offence to the eyes should have 
a different standing from an offence to the other organs. To 
strike the unwilling ear is in principle the same as to catch the 
unwilling eye. Obnoxious signs have rarely been held to be 
actionable nuisances, because only lately has the attention of 
the courts been called to this aggressive method of disfiguring 
the landscape. 

An advertisement upon private land anywhere may be a pub- 
lic nuisance. In every case it would be a question of what is 
reasonable under the circumstances. The right to put glaring 
signs where people may not escape them is measured by the 
degree of annoyance to which the public may be reasonably re- 
quired to submit for the benefit of private interests. The stand- 
ard must be determined by the effect of posters upon people 
generally, in the locality where they are put, — not by their 
effect upon those who are peculiarly sensitive, nor upon those, 
on the other hand, whose optic nerves will bear the harshest 
stimulation without inconvenience. The Legislature may very 
appropriately recognize and deal with the effect upon people in 
general of unrestrained scenic advertising, and take measures 
for its proper repression; and it has often declared certain con- 
ditions or objects to be nuisances in themselves, and provided 
that they may be regulated and controlled by local authorities. 
See Train v. Boston Disinfecting Co., 144 Mass. 523; Langmaid 
V. Reed, 159 Mass. 409; Newton v. Joyce, 166 Mass. 83. 

Persons whose property is affected by such restrictions have 
no right to compensation, because one of the incidents to prop- 
erty is a condition that it shall not be used so as unreasonably 
to impair the interests of the community. See Commonwealth 
v. Gilbert, 160 Mass. 157. 

Similar acts have generally been upheld. In ex parte Casi- 
nello, 62 Cal. 538, an ordinance giving the superintendent of 
streets power to determine where on private land rubbish and 
broken crockery-ware might be dumped was declared valid; so 
an ordinance prohibiting the beating of a drum on the streets 



330 OPINIONS OF THE ATTORNEY-GENERAL. 

without a permit, — re Flaherty, 105 Cal. 558; so a law declar- 
ing dense smoke a public nuisance was upheld on the ground 
that the public comfort was involved, it being immaterial 
whether such smoke was dangerous to health or to prop- 
erty, — Moses V. United States, 16 App. D. C. 428; likewise an 
ordinance that no person should blast rocks without a permit 
from the aldermen was sustained, — Commonwealth v. Parks, 
155 Mass. 531 ; and a statute that no public bowling alley should 
be open after six o'clock in the afternoon, — Commonwealth v. 
Cotton, 8 Gray, 488. There is no vested right in individuals to 
be exempt from police regulations. 

It is to be specially noted that in other States advertising has 
been regulated throughout whole cities; and the legislation has 
been, when attacked, sustained, on the ground that the views in 
a city, if beautiful and unobstructed, constitute one of its chief 
attractions, and in that way add to the comfort and well-being of 
its people. In re Wilshire, 103 Fed. Rep. 620; Rochester v. West, 
164 N. Y. 510; The Gunning System v. Buffalo, 75 N. Y. S. C, 
App. Div. 31. 

It is, however, unnecessary, under the order of the honorable 
House of Representatives, to consider the power of the Legis- 
lature to restrict bill boards everywhere. For especial reasons, 
its power may be properly exercised in case of parks and boule- 
vards. 

In Attorney-General v. Williams, 174 Mass. 476, at 479, in dis- 
cussing the well-established principle that the power of eminent 
domain may be exercised for the sole purpose of educating the 
public taste, the court says: "The grounds on which pubhc parks 
are desired are various. They are to be enjoyed by the people 
who use them. They are expected to minister, not only to the 
grosser senses, but also to the love of the beautiful in nature in 
the varied forms which the changing seasons bring. Their value 
is enhanced by such touches of art as help to produce pleasing 
and satisfactory effects on the emotional and spiritual side of 
our nature. Their influence should be uplifting, and, in the high- 
est sense, educational. If wisely planned and properly cared for, 
they promote the mental as well as the physical health of the 



HERBERT PARKER, ATTORNEY-GENERAL. 331 

people. For this reason it has always been deemed proper to 
expend money in the care and adornment of them, to make them 
beautiful and enjoyable. Their ai-sthetic effect never has been 
thought unworthy of careful consideration by those best qualified 
to appreciate it." 

Since the public good justified the spending of money to pro- 
duce an aesthetic effect, the court w^ill not hold that a reasonable 
regulation to preserve the effect for which the public money was 
spent is beyond the power of the Legislature. 

The purpose of educating the public taste by means of parks 
being declared by the court a public one, and the Legislature 
being of opinion that the public comfort makes some regulation 
of the use of private property visible from them needful, the only 
limit upon the Legislature's power to regulate such use without 
compensation is that the regulation must not be clearly unreason- 
able. This bill does not authorize any except reasonable rules. 
It wisely leaves it to the local boards to formulate the rules, as 
these should vary according to the needs of Ihe particular local- 
ity. Since it lies with the Supreme Court ultimately to determine 
whether any particular rule is reasonable, there can be no viola- 
tion of the Constitution in this enactment. 

The Legislature may delegate to such boards power to make 
rules, and provide that they may be enforced by suitable penal- 
ties. This is not a delegation of the power to enact laws. It is 
merely a delegation of administrative powers and duties. See 
Opinion of the Justices, 138 Mass. 601. 

A person who has a contract for advertising, which this enact- 
ment makes illegal, has no more sacred right to be immune from 
such regulations than the one who owns the property upon which 
the contract was to be performed. All contracts are subject to 
such exercise of legislative power. See Salem v. Maynes, 123 
Mass. 372. 

Manifestly, neither party to such a contract, upon its becoming 
illegal by legislative enactment, can maintain an action against 
the other for its breach. See Hughes v. Wamsutta Mills, 11 Allen, 
201; Commonwealth v. Overby, 80 Ky. 208; Bailey v. De Cres- 
pigny, L. R. 4 Q. B. 180. 



332 



OPINIONS OF THE ATTORNEY-GENERAL. 



In my opinion, therefore, in case this bill is enacted into law, 
neither owners of property affected thereby, nor persons having 
contracts for advertising prevented thereby from performing the 
same, would be entitled to compensation. 



To the Metro, 
politan Water 
and Sewerage 
Board. 
1902 
April 10. 



Metropolitan Water and Sewerage Board 

TO INSTALL MeTERS. 



Authority 



The Metropolitan Water and Sewerage Board is authorized, under St. 1895, c. 488, 
to install a system of meters for the purpose of securing a more efficient 
distribution of water to the communities which are supplied by it. 

Your letter of April 7 requests my opinion whether your Board 
has power, under the water act, so, called, to introduce meters by 
which the amount of water supplied to each municipality by 
your Board may be determined wdth reasonable accuracy; and 
you further inform me that, in the opinion of your chief engineer, 
sufficient advantages will arise from the system of meters through 
the greater facilities afforded for detecting breaks and leakages, 
and for the more efficient maintenance and economical adminis- 
tration of the w'ork of distribution, to justify the necessary ex- 
penditure of money for that purpose. 

I reply that, such being the facts, in my opinion the statute 
creating your Board (St. 1895, c. 488) gives it authority, as inci- 
dent to the discharge of its prescribed duties, to install a system 
of meters to secure a more efficient distribution to the communi- 
ties, and to ensure the proper conservation of the water which it 
is required to furnish them. 



R. 



Oleomargarine — Label on Package. 

L., c. 56, §§36 and 48, relating to marks on wrappers in cases of the sale of 
oleomargarine or renovated butter, is sufficiently complied with if the indi- 
vidual packages containing such merchandise are plainly marked by labels 
setting forth the contents; and where several packages, one of which con- 
tains oleomargarine, and is so marked, are enclosed in a common wrapper, 
it is unnecessary that such wrapper should also be labelled. 



I have your letters of April 7, in which, referring to §§ 36 and 
c. 56 of the Revised Laws, relating to marks on wrappers 



To the Agent 
of the Daily 

Bureau of tlic AQ rsf 

State Board of '*0 OI 

'^^^'^^*"'^*^' in cases of the sale of oleomargarine or renovated butter, you ask 

-^^ ' my opinion, upon the assumption that two or more purchases are 



HERBERT PARKER, ATTORNEY-GENERAL. 333 

made at a store, and all packages are placed in an outside wrapper 
for the convenience of the customer in diminishing the number 
of parcels, whether the law requires the distinctive mark on the 
outside of such parcel containing the specific parcels of merchan- 
dise which are themselves required to be labelled. You further 
inquire whether the law would be complied with if the required 
mark is on the outside of each of the individual packages within 
the package as finally made up for the convenience of the cus- 
tomer. 

I am of the opinion that the law does not require that the out- 
side of the parcel containing the several parcels of enclosed mer- 
chandise shall bear the specific label, if such be upon each of the 
parcels originally made up and delivered to the purchaser. Such 
delivery is, in my opinion, the delivery contemplated by the 
statute; and if, after such delivery, the customer requests, and 
in compliance with such request, expressed or implied, the seller, 
as agent for the purchaser, makes up the larger bundle, such 
transaction is no part of the original delivery; and, the law having 
been complied with as to each of the original packages, no further 
labels need be affixed by the seller. 



Side Arms. — Lithuanian St. Kaziner Benefit Society — 
Parade — Military Organizations. 

The Lithuanian St. Kaziner Benefit Society of Haverhill, a corporation organized 
under the general laws for purposes of benevolence and charity, is not within 
the provisions of R. L., c. 16, § 147, and may not, therefore, parade with 
side arms. In the absence of legislative enactment conferring the right to 
carry side arms, there is no authority adequate to grant such permission. 

R. L., c. 16, § 147, providing that "any organizations heretofore authorized thereto 
by law may parade with side arms," is not limited to military organizations, 
but includes any organization which has been so authorized by law. 

I have received your communication of April 4, requiring my Totiie 
opinion upon the matter of the petition of Matieus Bunker, secre- ^^j^^''^- 
tary of the Lithuanian St. Kaziner Benefit Society of Haverhill, A^rii^i. 
that such society may be permitted to parade with side arms. It 
is stated that the society has been legally incorporated under the 
laws of this Commonwealth, and I assume that to be the fact. 
I am not advised, however, whether the society is so organized 



334 OPINIONS OF THE ATTORNEY-GENERAL. 

under the general laws, or by special charter. From the tenor of 
the allegations of the petition, however, I believe I may safely 
assume, for the purpose of my reply to you, that the society has 
no special charter, but is organized under the general laws as a 
corporation the purpose of which is benevolence and charity. I 
must, therefore, further assume that the society does not come 
within the provisions of R. L., c. 16, § 147, as having been here- 
tofore authorized by law to parade with side arms. 

This question of express authority is a question of fact; and, if 
it be true that the authority has heretofore been expressly given 
by law, there would be no further occasion to deal with your in- 
quiries. If I am right in the assumption that no such express 
authority has been given, it is clear to my mind that no such 
authority exists, and you cannot confer it. 

You further inquire if permission can be given to this society 
to parade with side arms, pending the enactment of law granting 
authority to do so. The very suggestion that the society is 
awaiting the enactment of some law giving it the authority it 
desires makes it apparent that no such authority now exists, 
and may not be granted; so that here, again, in my opinion, you 
are precluded from giving the desired permission. 

In answer to your third inquiry, I have to say that I am of the 
opinion that permission to parade with side arms must be con- 
ferred by legislative enactment. In the absence of such pro- 
vision, there is no other authority adequate to give the permission 
sought for. 

In answer to the fourth inquiry, I have to say that, if this so- 
ciety has petitioned the Legislature for an enactment giving it 
the authority it desires, the pendency of such act would require 
the society to await the will of the Legislature. 

Your last inquiry I understand to be in effect a question 
whether the act which recites that "any organization heretofore 
authorized thereto by law ' ' applies exclusively to military organ- 
izations, or extends as well to any association, military or other- 
wise. I believe that the words are to be taken in their more 
comprehensive meaning, and to refer to any organization what- 
ever which has been so authorized by law. Of course the statutes 



HERBERT PARKER, ATTORNEY-GENERAL. 335 

giving such authority by their very terms define the organization 
to which the authority extends; and it would be necessary to 
examine each of such statutes to ascertain the extent of the 
authority thereby granted. 



Metropolitan Water and Sewerage Board — Duty to pro- 
vide FOR Existing Pipe Lines — Report of State Board 
OF Health for 1895 — Alterations in Direction of 
Pipe Lines — Excavations in Streets — City Ordi- 
nances. 

1. Under the provisions of St. 1895, c. 488, the MetropoHtan Water and Sewerage 

Board has authority to alter the courses or directions of pipe lines which 
such statute requires it to construct, even if such alterations are in detail 
at variance with the scheme suggested in outline by the report of the State 
Board of Health for 1895, therein referred to. 

2. A provision in the charter of the city of Newton, that no public street shall be 

dug up without first obtaining the written approval of the mayor, cannot be 
construed to impose a restriction upon the Metropolitan Water and Sewerage 
Board, acting for and in behalf of the Commonwealth in the prosecution of 
the work authorized by St. 1895, c. 488. 

3. In laying pipes the Board must have regard to existing pipes or conduits in the 

streets, and to any definite existing plan for the future construction of ad- 
ditional pipe lines by the city; but it cannot bind itself to make provision 
for pipes not now in existence nor a part of any adopted plan. 

I beg to acknowledge your communication of April 4, asking to the Metro- 
my opinion as to the rights and powers of the Metropolitan Water «nd sewerage 
and Sewerage Board in laying and maintaining pipe lines in the . ^'^f-,, 



streets of the city of Newton. Your communication informs me 
that the pipe lines intended to be laid are extensions of the 
Weston aqueduct from its end in Weston near the Charles River 
to the Chestnut Hill reservoir, through portions of the metro- 
politan district in which Newton is included. 

By § 3 of c. 488 of the Acts of the year 1895, the Board was 
required to construct a system of metropolitan water works sub- 
stantially in accordance with the plans and recommendations of 
the State Board of Health contained in their report of the year 
1895. The building of this Weston aqueduct was a part of the 
general scheme so recommended by the State Board of Health, 
though its immediate construction was postponed. The report of 



April 12. 



386 OPINIONS OF THE ATTORNEY-GENERAL. 

the State Board of Health refers to the necessity of the Weston 
aqueduct, and of pipes to be laid from it through the metropolitan 
district. Estimates were also given of the cost of this aqueduct 
and for laying pipes therefrom, some to be constructed within 
the first ten years, others within the second ten years. Mr. 
Stearns, the chief engineer for the Board, in his accompanying 
report gave a description of this Weston aqueduct, and spoke of 
the pipe lines to be laid as not being carefully located. A map 
which was submitted with the report shows two proposed pipe 
hues, and at the time it was suggested by the chief engineer that 
an aqueduct would be substituted for a part of the distance for 
one of these lines, which at present it is not proposed to build. 

The pipe line about to be laid, and concerning which question 
is now raised by the mayor of Newton, runs through Auburndale 
and Commonwealth avenue extension (which was not built at the 
time of the report of the State Board referred to) to the Chestnut 
Hill reservoir, about midway between the two routes shown on 
the map. 

The mayor of the city of Newton appears to base his objection 
to the prosecution of this w^ork by the Commonwealth on the 
following grounds : — 

First. — That the charter of the city of Newton, c. 1, § 31 
(Acts of 1897, c. 283), provides that no public streets shall be dug 
up without first obtaining the written approval of the mayor. 
No person or corporation, except officers and employees of the 
executive departments, shall dig up any pubHc street without 
first furnishing to the street commissioner sufficient security for 
restoring such street to a condition which shall be satisfactory to 
said commission, and for keeping the street in such condition for 
six months after the completion of the work. Under this pro- 
vision he is required to obtain security that the street and existing 
pipes therein will be left in as good condition and as accessible as 
before the work was done ; it having been the custom for a con- 
tractor, corporation or department opening the streets to pay to 
the street department the cost of restoring and maintaining the 
same for a reasonable term, the street commissioners doing the 
work and becoming responsible therefor. The mayor, therefore, 



IIERBEKT PARKER, ATTORNEY-GENERAL. 337 

as I am informed, demands that, before approving the projected 
work of the Metropolitan Board, security for the sum of $23,225, 
the estimated cost of restoring the streets to a satisfactory con- 
dition, shall be given by that Board. 

Second. — I am informed that the mayor contends that the 
report of the State Board of Health for 1895, and c. 488 of the 
Statutes of 1895, did not contemplate such use of the public 
streets as that now proposed by your Board, and asserts that the 
proposed future pipe line marked on Plan 6 in the report of 
the State Board of Health is shown through private land nearly 
the entire distance from the Weston aqueduct to the Chestnut 
Hill reservoir, while the line heading for Spot Pond does not pass 
through any part of the city of Newton; contending, apparently, 
that the line of pipe proposed to be laid by the Metropolitan 
Water Board in the city of New^ton is not described or set forth 
in the report of the Board of Health referred to in the metropoli- 
tan water act, and that, therefore, the laying of such pipe is 
beyond the power of your Board. 

Your Board desires the opinion of the Attorney-General upon 
the following question: ''Is not the Board authorized, under the 
provisions of the act of 1895, to proceed to dig up public streets 
and lay pipes in them as proposed, notwithstanding, as suggested 
by the mayor, that 'the proposed future pipe line marked on 
Plan 6 in this report is shown through private land nearly the 
entire distance from the Weston aqueduct to Chestnut Hill 
reservoir, while the line heading for Spot Pond does not pass 
through any part of the city of Newton?'" 

I understand this inquiry is directed to the question whether 
the laying of this line of pipe in the city of Newton not upon the 
actual lines laid down in the original report of the Board of 
Health is within the power of your Board; and in effect, as I 
understand it, you inquire whether the Board is bound to rigidly 
follow the precise letter of the plans of the Board of Health re- 
ferred to in the original act. 

Reference to the provisions of this act (§ 3) seems to me to 
conclusively answer this inquiry to the effect that your Board is 
required only to construct a system of work in substantial accord- 



338 OPINIONS OF THE ATTORNEY-GENERAL. 

ance with the plans and recommendations of the State Board of 
Health. The Legislature did not intend to restrict your work to 
any precise plan. Much of the detail of location and construction 
had necessarily to be left to the discretion of the Board, and to be 
determined by conditions that could not have been foreseen and 
prescribed by precise legislation. I entertain no doubt that, 
under the provisions of the metropoUtan water act, your Board 
has power to alter the courses or directions of pipe lines, even if 
such alterations shall be at variance in detail with the scheme 
suggested in outline by the report of the Board of Health. The 
Board must follow the general recommendations of that report, 
but is not inflexibly bound l^y intimations and suggestions set 
forth therein, for they do not and were never intended to have, 
in my opinion, the effect of an absolute and fixed plan. I am, 
then, of the opinion that the proposed pipe line through the city 
of Newton, according to the present plan of your Board, may 
be lawfully laid and maintained under the authority vested in 
your Board by the Legislature. 

Upon the second inquiry you submit to me, I am of the opinion 
that the provisions "in the charter of the city of Newton, which 
have been referred to, cannot be construed to impose a restriction 
upon the Metropolitan Water and Sewerage Board, which acts 
for and in Ijehalf of the Commonwealth in the prosecution of a 
work authorized by the Legislature. Section 9 of c. 488 of the 
Statutes of 1895 provides that the Board, in carrpng out the 
powers and duties conferred upon them, "may carry and conduct 
any aqueduct, conduit, pipe, drain or wire, under or over any 
water course or any railroad, street or other way, in such a manner 
as not unnecessarily to obstruct or impede travel thereon; may 
dig up any such road, street or way, and lay, maintain and repair 
aqueducts, conduits, pipes, wires and other works beneath the 
surface thereof, conforming to any reasonable regulations made 
by the mayor and aldermen of cities and the selectmen of towns, 
respectively, wherein such works are performed, and restoring, so 
far as practicable, any such road, street or way to as good order 
and condition as the same was in when such digging was com- 
menced." 



liERBERT PARKER, ATTORNEY-GENERAL. 339 

In conferring such authority upon the Water Board, the Legis- 
lature could not have intended or contemplated that its exercise 
should be made dependent upon the action of the mayor of any 
city, in the absence of express enactment to that effect ; for, were 
the operations of the Board subject to such a possible contingency, 
it is clear that it would have been possible for municipal author- 
ities to have prohibited the prosecution of the work, or to have so 
impeded it as to impose great expense and delay upon the Com- 
monwealth. 

The provision of § 9, above referred to, requiring that the work 
shall conform to reasonable regulations made by the mayor and 
aldermen of cities wherein such works are performed, and re- 
storing, so far as practicable, the way in the condition it was in 
when such digging was commenced, is to be construed as confined 
to rules and regulations attendant upon the progress of the work, 
and consequent upon it. These regulations are not conditions 
precedent, but conditions attendant; and require merely that 
the work, as it proceeds, shall be conducted conformably to 
reasonable regulations of the local authorities. The obligations 
imposed by the statute upon your Board to ensure proper prose- 
cution of the work and restoration of the streets and ways are as 
effective, efficient and far-reaching, and, indeed, are almost in 
the same language, as the requirement which the statute author- 
izes a municipality to impose where the digging of streets is to be 
done by any party other than the Commonwealth. Where the 
Commonwealth has imposed upon itself the obligation of restor- 
ing the streets to their original condition, no ground exists, in 
my judgment, for the contention that its agents, in carrying out 
the work so entrusted to them, can be required to give security 
for an obligation which the Commonwealth has declared it has 
assumed. The State can be required to give no bond to her own 
citizens. 

Your third inquiry is stated as follows: "The city of Newton 
has constructed surface drains along one side of the Common- 
wealth Avenue extension, where it is proposed to lay the pipe 
line, and provides for connection with the other side of the avenue 
at the entrance of several of the side streets. The Board would 



340 OPINIONS OF THE ATTORNEY-GENERAL. 

make proper provision for all such system of drains already laid. 
Can the city of Newton compel it, in addition, to deposit money 
or give bond or agreement for the construction of additional 
cross-drains in future years, when additional streets not now laid 
out are built?" 

In my opinion, the city of Newton can require no bond, obliga- 
tion, promise or agreement from the Commonwealth in any event. 
In laying its pipes, the Metropolitan Water Board must have 
regard to the existing pipes or conduits in the street, and as well 
to any definite or adopted plan for future construction of the 
city's pipes. It cannot now make provision, nor can it bind itself 
or be bound to make provision for pipes not now in existence, nor 
a part of any known or adopted plan. If in the future some new 
scheme and new system of pipes be adopted and laid by the city 
of Newton, they must be so adopted and laid with regard to the 
conduits of the Commonwealth, then existing by lawful right and 
by priority of location. 

I have endeavored to clearly answer your several inquiries. If 
I have failed to do so, I will advise you further. 



Member of Congress — Fifty-seventh Congress — Vacancy 
— Resignation — Formal Notice — Governor. 

After the repeal of St. 1891, c. 396, by St. 1901, c. 511, providing for the election 
of representatives in the Fifty-eighth Congress, and in each subsequent 
Congress until otherwise provided by law, no act remains in force by which 
the Commonwealth is divided into districts for the choice of Representatives 
in the Fifty-seventh Congress; and when a vacancy occurs in the represen- 
tation of any district for such Congress, legislative action is necessary to 
authorize the election of a successor. 

The Governor can have no official knowledge of the resignation of any Representa- 
tive in Congress from the Commonwealth, or of any purpose of such member 
to retire, until formal notice of the resignation has been received by him. 

Governor. You Tcquire my opinion as to the necessity or advisability of 

ApriUo. new legislation to provide for the election of a successor to the 

Hon. William H. Moody, Congressman for the sixth district, in 

case of his resignation before the expiration of the term for which 

he was elected. 



HERBERT PARKER, ATTORNEY-GENERAL. 341 

Chapter 396 of the Acts of 1S91 divided the Commonwealth 
into districts for the choice of Representatives in Congress. Under 
this act, the sixth district, now represented by Mr. Moody, was 
created, and continued until a reapportionment should be made, 
or there should be legislation repealing or terminating this ap- 
portionment. By c. 227 of the Revised Laws the above statute 
of 1891 was expressly repealed, taking effect December 31, 1901. 

Chapter 511 of the Acts of the year 1901, enacted June 14, 1901, 
and now embodied in § 422 of c. 11 of the Revised Laws, divides 
the Commonwealth into districts for the choice of Representa- 
tives in Congress, the language being: "For the purpose of 
electing representatives in the fifty-eighth congress of the United 
States, and in each subsequent congress, until otherwise pro- 
vided by law, the commonwealth shall be divided into," etc. 
It thus appears that the new districts so created and elections 
pursuant thereto are confined to membership in the Fifty-eighth 
Congress. The old districts in which elections to the Fifty- 
seventh Congress were or could be made no longer exist, by 
reason of the repeal by the Revised Laws, above cited. 

In case a vacancy occurs in the representation of any district 
for the Fifty-seventh Congress, it is my opinion that it is necessary 
to fill such vacancy during the continuance of the Fifty-seventh 
Congress, and by an election to take place in the district con- 
stituted for the election of members to that Congress. It is 
apparent that there is now no act in force by which the Com- 
monwealth is divided into districts for the election of members in 
the existent Congress, or providing for any election of members 
except for the Fifty-eighth Congress not yet convened or in ex- 
istence. 

If it be deemed advisable that a successor be appointed to a 
member resigning from the Fifty-seventh Congress, it seems that 
legislative action must be taken to provide for the election of such 
successor. It should be, in my opinion, in substance as follows, 
its caption being, "An act to repeal an act repealing the provi- 
sions of chapter 396 of the Acts of the year 1891, entitled, 'An 
act to divide the Commonwealth into districts for the choice of 
representatives in the Congress of the United States.'" "Section 



342 OPINIONS OF THE ATTORNEY-GENERAL. 

1. So much of chapter two hundred and twenty-seven of the 
Revised Laws as repeals chapter three hundred and ninety-six 
of the acts of the year eighteen hundred and ninety-one is hereby 
repealed, and said chapter three hundred and ninety-six of the 
acts of the year eighteen hundred and ninety-one is hereby re- 
vived, and shall continue in full force and effect for the purpose 
of electing representatives to the Congress of the United States, 
to fill any vacancies that may occur from death, resignation or 
otherwise in the Fifty-seventh Congress of the United States, 
but for no other purpose." ''Section 2. This act shall take 
effect upon its passage." 

In answer to the further inquiry of Your Excellency, I am of 
the opinion that Your Excellency can have no official knowledge 
of a resignation of any Representative in Congress from the 
Commonwealth, or of any purpose of such member to so retire, 
until official notice of the resignation has been received by Your 
Excellency. Formal notice from the sitting member, either of 
his actual resignation or of his definite and fixed purpose to 
resign, stating the time when such resignation shall take effect, 
is a necessary precedent to any action to be taken by Your Ex- 
cellency for the purpose of providing for or filling such vacancy. 



Civil Service — Executive Clerks or Secretaries in Di- 
visions OF THE Street Departments of the City of 
Boston. 

Officers to be appointed as executive clerks or secretaries in the several di^^sions 
of the street department of the city of Boston, whose duties will be to arrange 
for hearings and other matters, and, in general, to take charge of the business 
of such divisions and to stand in the places of the deputy superintendents 
during their absence, such positions involving some incidental clerical work 
as well, are within Schedule A, Class 2, of Rule Vll. of the civil ser\ice rules, 
and must be selected in accordance with such rules. 

To the Civil I have had under consideration your inquiry of March 21, 

Service Com- -' i ^ 

™*j;f^\o"ers. relating to the status of proposed officers to be appointed as 

Ajirn2i. executive clerks or secretaries, to have charge of the several 

offices under divisions of the street department of the city of 



HERBERT PARKER, ATTORNEY-GENERAL. 343 

Boston, when the deputy superintendent of such department is 
absent; the general duties of such proposed appointees being, 
as stated to me, to arrange for hearings and other matters, and, 
in general, to take charge of the business of the office and stand 
in the place of the deputy superintendent during his absence, 
and arrange and keep the run of the business of the division, — 
being responsible and answerable to him, — the work of such 
appointees involving some incidental clerical duty. It is further 
suggested that the position is, of necessity, a confidential one in 
its relation to the deputy superintendents. 

I assume the duties to be discharged by the proposed officers 
are aptly described as above, and I am of opinion that they fall 
within the civil service law, and that such officers must be ap- 
pointed under its requirements. I assume that the city, or its 
executive, has authority to create, and, adhering to the civil 
service rules, to appoint and employ, such officers. 

I am of the opinion that the proposed office falls within Schedule 
A of Class 2 of Rule VII. of classification of service by your com- 
mission. It seems to me that it isVithin the definition of "clerk" 
or "agent," or a person rendering service similar to that of clerk 
or agent. It is possible that the office would be within the classi- 
fication of Class 12 of Schedule B, as being that of an assistant 
superintendent or assistant deputy; but it is clear to my mmd 
that, under the statement of the duties of the office, as submitted 
to you, the incumbent could not be held to be a chief superin- 
tendent, and therefore is not within the exception in Class 12. 

I note the suggestions of the superintendent of streets, accom- 
panying his inquiry, calling attention to the fact that, as the 
proposed officer must perform certain executive duties, have 
charge of the business of the office and stand in the place of the 
deputy during his absence, he must hold a relation of trust and 
confidence to his chief; and that therefore the civil service rules 
ought not to apply. 

I cannot bring myself to this position, and, indeed, it seems to 
me to be untenable in view of the express adjudication of the 
Supreme Court in the case of Attorney-General v. Trehy, 178 
Mass. 186, 193, where the court distinctly holds that the exist- 



344 OPIXIOXS OF THE ATTORNEY-GENERAL. 

ence of a confidential relation between the chief and the sub- 
ordinate does not preclude the position from being classified as 
one to be filled under the rules of the Civil Service Commission; 
it being further held that the statute leaves to the commissioners 
the power, in their judgment and discretion, to require offices in- 
volving confidential relations between the incumbent and his 
superiors to be filled under the rules, or to so classify them that 
they will be free from such rules. It seems to me that the offices 
in question have been so classified by the commission as to bring 
them within the definition of Schedule A, Class 2, Rule VII. 

I therefore advise you that, in my opinion, if the proposed 
offices are created and appointments made thereto, they must be 
made pursuant to the rules of the civil service department. 



Civil Service — Deputy Street Commissioner of the City 
OF Lynn — Chief Superintendent. 

An official designated as the "deputy street commissioner of Lynn," who is ap- 
pointed by the board of public works, an elective board created by the 
revised city charter of Lynn (St. 1900, c. 367), having charge, subject to 
the direction of the city council, of all streets and ways, sidewalks, bridges 
and sewers, the supervision of wires, street lighting and street watering, 
and the supervision and care of all public buildings, is not a chief superin- 
tendent of any department, since he does not represent such Board through- 
out its jurisdiction; and he is therefore subject to the civil service rules. 

To the civn Your letter of March 21 requests my opinion whether the posi- 

™m2"^"' ^^^^ ^^ ^^ officer designated ''deputy street commissioner of 
Aprn22. Lynn" is within the classified service. 

Under the revised city charter (St. 1900, c. 367), a board of 
public works is created, consisting of three members, elected by 
popular vote, which has charge, subject to the direction of the 
city council, of all streets and ways, sidewalks, bridges and sew- 
ers, the supervision of wires, street lighting and street watering, 
and the supervision and care of all public buildings. 

This board has appointed an officer, called a deputy street 
commissioner, to act as its executive officer, directly responsi- 
ble to it, in taking charge of the streets and ways of the city, with 
the duties which generally belong to the position of a city super- 



i 



HERBERT PARKER, ATTORNEY-GENERAL. 345 

intendent of streets. The question is, whether he is to be ap- 
pointed in accordance with the civil service rules. Plainly, he 
is a superintendent within Class 12 of Schedule B of Rule VII., 
and must be so appointed, unless the position comes wdthin the 
saving clause of that class which exempts the chief superintendent 
of a department. 

If this officer represented the board of public works in every 
branch of its authority, he might be the chief superintendent of 
its department. He represents the board, however, only in its 
control of streets and w^ays. Therefore, the question is, whether 
the division of streets and highways, being the division of munic- 
ipal affairs, usually controlled by a superintendent of streets, but 
in Lynn under the general charge of the board of public works, 
is a department within Class 12 of Schedule B. In other words, 
the cjuestion is, whether the board of public works may divide 
its department into various "departments." 

Beginning with the highest, there are two departments in 
Lynn, the mayor and city council being one, the school committee 
the other. Probably, however, these are not the only depart- 
ments intended in the rule. 

The charter further provides for administrative officers, in- 
cluding a board of public works (§ 34, cl. XII.). This board, it 
seems to me, is in charge of a department. It has power to ap- 
point all subordinate officers, clerks and assistants therein (§ 38). 
A superintendent representing it throughout its jurisdiction 
might be the chief superintendent of a department. 

There is, however, no authority in the charter for the creation 
of a ''department" by an administrative board, so that the 
board may be at the head of several departments at once. The 
city council may establish additional boards (§ 34, cl. XIII.), 
and such a board, "having the charge of a department," may 
appoint subordinates. Thus the city council may create a new 
department, it seems, just. as it may consolidate existing depart- 
ments. But if any department were at liberty to subdivide into 
"departments" at its pleasure, it would be impossible to set a 
limit, defined by law, to their number and to the number of chief 
superintendents. Subdivision might extend so far that each 



346 OPINIONS OF THE ATTORNEY-GENERAL. 

clerk would be the chief superintendent of his own department. 
In my opinion, the authority for subdivision must be found, if 
at all, in the charter or in the general provisions of law. I find 
no adequate authority, upon the conditions stated, for the ap- 
pointment of the proposed officer except in accordance with the 
requirements of the civil service rules. 



Gas Company — Incorporation — Purpose of Organization 
— Distribution of Gas to Public. 

An organization proposed to be incorporated for the purpose of manufacturing 
and selling coke, tar, ammonia, gas and other products of coal, but with no 
intent or purpose to engage in the business of distributing gas to the public, 
may incorporate under the provisions of R. L., c. 110, § 5. 

To the Com- J j^ep; to acknowledge your communication of April 3, requir- 

missioner of " o ./ i 'i 

♦^o^po'^ations. ^jjg j^y opinion upon the question whether an organization pro- 
^!^- posed to be incorporated "for the purpose of manufacturing and 

selling coke, tar, ammonia, gas and other products of coal," but 
with no purpose or intent to engage in the business of distribut- 
ing gas to the public (this limitation to appear in the articles of 
incorporation), is to be considered a gas company within the 
meaning of § 9 of c. 110 and of c. 121 of the Revised Laws. 
In reply, I have to say that the provisions of c. 110 and of c. 
121 of the Revised Laws do not necessarily apply to the same 
conditions; and I am of the opinion that a corporation may be 
within the scope of c. 121 as a gas company, though not organ- 
ized under the provisions of § 9 of c. 110. Having regard to the 
stated purpose of the proposed corporation, I am of opinion that 
it may be organized under § 5 of c. 110, and that its purpose, as 
above stated, does not compel its organization under § 9 of the 
same chapter. 

I believe that I have thus answered the inquiry that you de- 
sired to submit to me. I may, however, supplement this state- 
ment by saying that I do not now pass upon the question whether 
this corporation, so organized under § 5, would or would not be 
subject to the supervision of the Gas Commission, under the pro- 
visions of c. 121. 



HERBERT PARKER, ATTORNEY-GENERAL. 347 

Insurance — Fraternal Beneficiary Corporation — Man- 
agement OF Funds — Supreme Lodge — Subordinate 
Organizations — By-laws — Amendment. 

R. L., c. 119, regulating the conduct of business by fraternal beneficiary corpora- 
tions, requires that the supreme lodge or council shall be responsible for 
and have possession of the several funds provided for by law, and shall regu- 
late the rates of assessments and the amounts of death or disability benefits 
to be paid; and a fraternal beneficiary corporation carrying on business 
under the provisions of such statute cannot amend its by-laws so as to pro- 
vide that a member of the association shall be entitled to a sick benefit, to 
be paid by the subordinate lodge of wliich the holder of the certificate is a 
member, from funds collected by each subordinate lodge from its own 
members. 

Your letter of December 17 requests the opinion of the Attor- to the insur. 

r~i ^ • c 1 1 T <• ance Conniiis- 

ney-General upon the question oi the legahty of a proposed sioner. 
amendment to the by-laws of the Portuguese Fraternity of the ^^'^y '^ - 
United States, a fraternal beneficiary corporation doing busi- 
ness under the provisions of R. L., c. 119. 

The proposed change relates to the disability fund, and pay- 
ments therefrom to persons entitled to receive "sick benefits." 
As at present constituted, the by-laws provide that the disabil- 
ity fund, for which provision is made in the statute, shall be paid 
to and in charge of the supreme lodge, which may authorize the 
subordinate lodges to retain a part of the receipts from disability 
assessments, and pay therefrom such disability benefits as are 
due to the members of the respective lodges, the supreme lodge 
collecting and holding the remainder of the fund for the use of 
the subordinate lodges which may be in need of assistance from 
it. The by-laws, as amended, are to provide that the members 
of the association shall be entitled to sick benefits, to be paid by 
the subordinate lodge of which the holder of a certificate is a 
member, from collections made by each subordinate lodge from 
its own members. 

There are two grounds upon which the legality of this amend- ' 
ment may be questioned: first, upon the ground that the con- 
tractual relation between the corporation and the individual 
members thereof will be impaired; and, second, that the provi- 
sions of R. L., c. 119, regulating the conduct of business of fra- 
ternal beneficiary corporations, will be violated. 



348 OPINIONS OF THE ATTORNF^Y-GENERAL. 

The objection to the amendment founded upon contract pre- 
sents no serious difficulty. The decisions of the courts have 
ah'eady sanctioned changes in the by-laws of such corporations 
at least as sweeping as those under discussion, from the point of 
view of the contractual relation existing between the corpora- 
tion and its individual members. Changes in the rates of assess- 
ment, when not in conflict with the by-laws, have been sustained 
(Messer v. the Ancient Order of United Workmen, 180 Mass. 321); 
and the corporation, if the by-laws permit, may even amend them 
so as to affect the rights of a member to future benefits under a 
disability existing at the time when the amendment is made. 
Pain v. Soci'te St. Jean Baptiste, 172 Mass. 319. See also Fullen- 
weider v. Royal League, 180 111. 621. 

The proposed change may therefore be made under the power 
of amendment reserved in the by-laws "to adopt and to amend 
the constitution, laws and rules for its own government and 
membership and for the government of the members and lodges 
within such jurisdiction and control" (By-laws, c. 1, § 1), without 
impairing any obligation of contract subsisting between the cor- 
poration and its members. 

The second c^uestion, however, as to whether or not the pro- 
posed amendment is a violation of the provisions of R. L., c. 119, 
is not free from difficulty. A consideration of the by-laws of the 
Portuguese Fraternity of the United States shows how important 
the matter is, and how far-reaching may be the ultimate outcome 
of such amendments; for, if the corporation has the right to 
delegate the power of assessment for a disability fund, and the 
payment therefrom of sick or disability benefits to subordinate 
lodges or councils, leaving such organizations the right to regu- 
late the terms and condition of such payments, it may also dele- 
gate to subordinate lodges the power to determine whether or 
not those bodies will pay any such benefit at all. Yet the statute 
* contains no positive prohibition in relation to the division of the 
disability fund among the subordinate lodges, and the collection 
of assessments from, and payments of sick benefits to, its members 
by each separate lodge in the management of its disability fund. 
If it is prohibited at all, it is prohibited by implication. 



\ 



HERBERT PARIsIER, ATTORNEY-GENERAL. 349 

That the statute did not contemplate any such action by asso- 
ciations incorporated under its provisions, and that the result is 
contrary to the theory upon which the statute has grown up, is 
admitted ; but it is contended that, inasmuch as the corporation 
has the general right, incident to incorporation, to make by-laws 
not inconsistent with law, such inconsistency only arises where 
the action contemplated by the proposed amendment conflicts 
with some direct prohibition in the statute; or, in other words, 
everything is permitted which is not expressly prohibited by 
some provision in the law (see R. L., c. 119, § 2). 

Whatever may be the force of this reasoning, it is clear that the 
determination of the ciuestion must depend upon the construction 
and scope of the power reserved to the corporation to make 
by-laws not inconsistent with law, and, in this case, not incon- 
sistent with the provisions of R. L., c. 119, 

If such inconsistency can only arise upon a direct contra- 
vention of some express provision or prohibition in the statute, 
it may be admitted that the proposed amendment is not illegal. 
I am of opinion, however, that a broader definition of incon- 
sistency must be applied than that above suggested. A by-law 
may be so framed as not to be in contradiction to any express 
provision of an act, and yet be so inconsistent with the whole 
spirit of the law as to render it an unlawful exercise of power on 
the part of the corporation to adopt it. That such may be the 
case, even with regard to the contractual relation entered into by 
the corporation with its individual members, is intimated by the 
court in Messer v. the Ancient Order of United Workmen, above 
referred to: "It may be conceded that some amendments might 
be so foreign to the general scheme and purpose of the organiza- 
tion, and so contradictory to its fundamental law and the con- 
tracts made under it, as not to be within the power of amendment 
referred to; but this is not true of an amendment which merely 
changes forms and methods, while the substance of the general 
plan and purpose of the organization is preserved." 

WTiether the amendment in question is so foreign to the gen- 
eral plan and purpose of the statute under which the Portuguese 
Fraternity is incorporated as not to be within the power of 



350 OPINIONS OF THE ATTORNEY-GENERAL. 

amendment reserved to the corporation, may be best determined 
by a consideration of the scope and intention of c. 119. It was 
the evident purpose of the statute to place in the hands of the 
corporation as a whole the control and management of the death, 
disability and emergency funds provided for, together with the 
assessments therefor and the payments therefrom. Such funds 
are repeatedly referred to in the singular number, and provisions 
are made which could not conveniently apply if the disability 
fund were divided among the various subordinate lodges. ''Be- 
fore such certificate is granted, the corporation must present 
satisfactory evidence to the insurance commissioner that at least 
five hundred persons have each paid one advance assessment for 
its mortuary or disability business or both, if such business is 
combined, at its established rates," etc. (§ 4). "Section 7. A 
corporation . . . may hold as a death fund . . . not more than 
the amount of three assessments from a general or unlimited 
membership, or of three assessments from each limited class or 
division of its members; and in addition thereto may create, 
collect, maintain, disburse and apply an emergency fund in ac- 
cordance with its by-laws. . . . The emergency fund shall be 
used only for the payment of death or disability benefits." 
"Section 8. Death, disability and expense assessments may be 
called together." Section 4, above stated, plainly sets forth the 
intention of the law that the Insurance Commissioner shall, 
through the corporation itself, have direct and restrictive con- 
trol over the affairs and finances of the corporation, both as to 
mortuary and disability business. 

The statute further contemplated a corporation represented 
by a supreme lodge or council, composed of the officers and di- 
rectors of the corporation and such representatives as the sub- 
ordinate organizations might elect in accordance with the by-laws, 
which should be responsible for and have possession of the 
various funds provided for by law, and should regulate the rates 
of assessment and the amounts of death or disabihty benefits to 
be paid. 

Under by-laws similar to those which the Portuguese Frater- 
nity of the United States proposes to adopt, instead of a single 



HERBERT PARKER, ATTORNEY-GENERAL. 351 

corporation which is responsible for and in possession of the dis- 
abihty fund, there are numerous separate and irresponsible 
bodies which control their respective funds, collecting assess- 
ments and paying the so-called "sick benefits" in such manner 
as they may see fit. The practical effect of such a condition is 
that the corporation, as represented by the supreme lodge, has 
delegated its entire powers with regard to the conduct of disa- 
bility business to the subordinate organizations. Such a corpo- 
ration could not conveniently make use of the emergency fund 
for the payment of disability benefits. It could not collect 
death, disability and expense assessments together, and it would 
have made no adequate provision for the payment of benefits 
in case of disability, as provided by § 6. 

The provisions regulating the management of the death fund 
clearly prohibit such a course with regard to that particular fund 
(§§6 and 7), and it is admitted that such a by-law, if applied 
to the death fund, is inconsistent with the provisions of the act. 
It is argued, however, that, because certain express provisions 
are made in §§ 6 and 7 for the collection, maintenance and dis- 
bursement of the death fund, which do not specifically extend to 
the disability fund, the respective funds are separable throughout 
the act ; and that a disposition of the disability fund which would 
be clearly prohibited if attempted in the case of the death fund 
is not inconsistent with any of the provisions of the statute if 
limited to the disability fund. 

Upon its face this contention has force, but it is, I think, refuted 
by consideration of the legislation on the subject. The statutes 
regulating this form of insurance, beginning with St. 1899, c. 442, 
did not establish death and disability business upon the same 
footing. By far the more important of the two was the payment 
of death benefits, and disability benefits were merely an incident. 
It was therefore natural that careful provision should be made 
for the collection, maintenance and disbursement of the death 
fund; while the disability fund, for payments which were inci- 
dental, was less carefully safeguarded, the idea being to keep on 
hand only sufficient funds to meet the claims as they arose (St. 
1899, e. 442, § 13). It was, however, found advisable, under 



352 OPINIONS OF THE ATTORNEY-GENERAL. 

later acts, to increase the amount to be kept on hand for the 
payment of disabiUty benefits from the amount of one assessment 
to the amount of three assessments. The reason why no provi- 
sion is made for the investment of the disabihty fund appears to 
be that it is desirable, if not necessary, to keep such fund on hand 
to meet promptly the claims which may arise from time to time. 
For example: there are many more disability claims presented 
in winter than in summer, owing to the greater prevalence of 
sickness in- the former season; but, by keeping a considerable 
amount in the disability fund, it is possible to equalize, to a great 
extent, the assessment during the different seasons. The reason 
why no provision is made as to the person to whom disability 
benefits shall be paid similar to those in § 6, with regard to death 
benefits, is clearly because they are paid to the person himself, 
who may thereafter dispose of them as he desires. 

For these reasons I am of opinion that no valid distinction can 
be drawn between the management of the death fund and the 
management of the disability fund, and that a disposition which 
is prohibited in the case of the former must also be held to be at 
least impliedly prohibited in the case of the latter. 

Section 10 was also relied upon by the Portuguese Fraternity 
of the United States as supporting its position; but I am of 
opinion that it not only lends it no support, but is in effect one of 
the strongest arguments against the proposed amendment. The 
purpose of that provision was to enable a Massachusetts corpora- 
tion, which consisted of a grand lodge and subordinate lodges, 
to maintain and continue their affiliation and relations with some 
supreme body, either incorporated or not, which was without 
the Commonwealth. The specific reason for its enactment was 
the conflict which arose in 1899 between the grand lodge of the 
Ancient Order of United Workmen, which was incorporated in 
Massachusetts, and the supreme lodge of that order, which was 
at that time unincorporated, over an attempt by the latter to 
levy a war assessment upon the Massachusetts corporation. 

The language of the latter part of the section is significant. It 
provides, in effect, that a Massachusetts corporation may pay 
death benefits to or for the beneficiaries of deceased members 



HERBERT PARKER, ATTORXEY-GENERAL. 353 

holding. benefit certificates issued not by such corporation, but by 
the supreme body or by one of the grand or subordinate bodies 
thereof, organized or incorporated elsewhere than in this Com- 
monwealth. The section further provides: "But this authority 
shall not permit the payment of benefits other than those arising 
from death." As I understand it, this provision authorizes the 
corporation to pay death benefit certificates which are not issued 
by the corporation itself, but by some organization which is a 
part of it or with which it is affiliated ; from which it is to be im- 
plied that, under the other provisions of the chapter, only certif- 
icates issued by the corporation can be paid by it. 

This authority is not extended in any case to the payment of 
certificates other than death certificates, and there can be no 
question as to the illegality of the payment by any organization 
of a disability certificate not issued by the corporation itself. 

The issuance of such a certificate implies an obligation to meet 
the payment thereof whenever it may fall due; and this the cor- 
poration cannot assume under by-laws like those referred to, 
where the benefit business is entirely in the hands of individual 
subordinate lodges. It seems to me, therefore, that the legal and 
logical conclusion to be drawn from the requirement that the 
corporation shall issue benefit certificates is that it must also 
assume the obligation to provide for them ; and that the issuance 
of such certificates can be made only by the corporation itself by 
the provisions of the statute; that the responsibility of paying 
them when due is placed upon the corporation, and authority 
cannot be delegated by it to subordinate lodges to maintain 
funds, and to assume the responsibility of paying the disability 
certificates in such manner and to such extent as such subordi- • 
nate lodges may themselves determine. 

Upon the whole, therefore, I am of opinion that the Insurance 
Commissioner cannot properly approve the proposed by-law of 
the Portuguese Fraternity of the United States. 



354 OPINIONS OF THE ATTORNEY-GENERAL. 

Feoffees of Grammar School in Ipswich — Constitutional 
Law — Vested Rights — Obligation of Contract. 

Under St. 1786, c. 54, making perpetual the agreement set forth in Acts of 1765, 
c. 5, between the feoffees representing the original donors of land for a 
grammar school in Ipswich and the town of Ipswich to the effect that four 
feoffees on behalf of private individuals, and the three selectmen of the town 
of Ipswich for the time being, on behalf of the town, should be incorporated 
feoffees in trust for the management of such school, the rights of each group 
of trustees became vested, as well as the rights of the beneficiaries under the 
trust; and a bill to increase to six the number of feoffees on the part of the 
town would be unconstitutional, as impairing the obligation of the contract, 
and destroying vested rights without due process of law. 

To the Com. jj^ answering the inquiry of the committee on education 

mittee on o i j 

^wo-i''""°' whether House Bill No. 931, an act to increase the number of 
May3. feoffees of the grammar school in Ipswich, would be constitu- 

tional, it seems proper to state briefly the facts of which I am 
informed. 

In 1650 the town of Ipswich granted to Robert Payne and 
others a tract of land for the use of school learning in the town 
forever. Certain citizens also dedicated land to the same pur- 
pose, and in 1653 Robert Payne l^uilt an edifice for a grammar 
school at his own expense. In 1683, Robert Payne, being the 
last survivor of the individual donors, gave a deed of the whole 
property to a committee and their successors in trust forever. 
Three of the committee were chosen by the town and two by 
himself. See Feoffees of the Grammar School in Ipsivich v. 
Andrews, 8 Met. 584, 587. 

These trustees and their successors continued to act in the per- 
formance of their trust without interruption until 1720, when a 
difficulty arose with the town of Ipswich, which then for the 
first time laid claim to the land which it had deeded to Robert 
Payne as having reverted after the death of the original feofTees ; 
but the town lost the suit which it brought to recover the premises. 
In 1756 the town passed the following vote : — 

Ipswich town-records, vol. 4, p. 153. Att a IMeeting Of the Inhabitants 
of the Town of Ipswich by Adjournt Januarj^ 22d 1756. Collo John 
Choate Esq. Moderator of the Meeting 



HERBERT PARKER, ATTORNEY-GENERAL. 355 

The Comtee Appointed on the Twelfth Inst to Confer with the Feoffees 
of the Grammar School in Ipswich Respecting the Management of the 
School Rents Reported that they had Agreed thereon and then the Town 
Came into the Following Vote. Vizt — 

Whereas the Town in Granting the School Farm att Chebbacco did 
not give those Persons to whose Trust they Committed the Improvement 
of Said Farm a power to Appoint Successors as the Private Persons who 
granted Lands in this Town for the Same use Did as Appears by Exam- 
ining the Respective Grant by which Means those Grants being Differ- 
ently Constituted and the Persons Instructed by the Town as Aforesaid 
being Long Since Dead Endless Disputes may Arise between the Town 
& Feoffees About the School (to the Support of which the whole Income 
if needed is to be Applyed) Unless Relief be had from the Generall Court 
and inasmuch as the Present Feoffees have Manifested there Agreement 
Thereto — 

"Voted That a Joynt Application be made to the Great and Generall 
Court to Obtain and Act if they See meet Fully to Authorize and Im- 
power the Present Four Feoffees and Such Successors as they shall from 
time to time Appoint in their Stead together with the Three Edest 
Selectmen of this Town for the time being other than Such Selectman 
or men as may att any time be of the Four Feoffees To be A Committee 
in Trust the Major Part of whom to Order the Affairs of the School Land 
& School Appoint the Schoolmaster from time Demand Receive and 
Apply the Incomes Agreeable to the True Intent of the Donors No Feoffee 
hereafter to be Appointed by the Present Feoffees or by their Successors 
Other than an Inhabitant of this Town and not to Act after he Removes 
his Dwelling out of it and to have no more than Four att one time and 
Least any Unforeseen Inconvenience may happen in this Method it is 
agreed that the Act be only made for Ten Years att First. 

Attest 

Samuel Rogers T. Cler — 

As a result of the agreement expressed in this vote, the act of 
1756, c. 26, was passed, incorporating the seven feoffees, being 
four on the part of the original donors and three representing the 
town. This act was an experiment, to be in force only for ten 
years. 

By the act of 1765, c. 5, the Legislature, reciting that it had 
been found by experience that the previous act had been of 
great advantage to the interest of learning in the town, and that 
all doubts and disputes had ceased and the parties concerned 



356 OPINIONS OF THE ATTORNEY-GENERAL. 

desired the continuance of the act, provided that the four sur- 
viving feoffees on the part of the individual donors, together 
with the three selectmen at that time, should be incorporated 
feoffees in trust, and that the act should continue in force twen- 
ty-one years. Then, by St. 1786, c. 54, the Legislature provided 
that the act of 1765 be made perpetual. 

Again disputes have arisen between the feoffees on the part of 
individuals and the town of Ipswich. The town has voted to 
increase its power in the corporation by adding three feoffees, 
that it may out-vote the representatives of the individual donors 
six to four, and applies to the Legislature for an act authorizing 
the change. 

In my opinion, the Legislature has no authority to pass the 
act in question. As a result of the agreement expressed in the 
vote of the town above recited, the original admmistration of the 
trust was materially changed. The balance of power was shifted 
from the town to the private feoffees, and this contract was 
made permanent by the statute incorporating the seven feoffees. 
Under this act the rights of each group of trustees became vested, 
as also the rights of the beneficiaries under the trust; and any 
gifts to the charity made thereafter were upon faith that the 
trust should be administered by trustees in behalf of each group 
of donors in those proportions. If the bill in question should be 
passed, it would be void, as impairing the obligation of the con- 
tract and destroying vested rights without due process of law. 
See Trustees of Dartmouth College v. Woodivard, 4 Wheat. 518; 
Allen V. McKeen, 1 Sumn. 277; Brown v. Hummel, 6 Pa. St. 86; 
Cary Library v. Bliss, 151 Mass. 364. 

The principle is the same as if the Legislature were to deprive 
the town of its power in the management, or were to supplant 
the feoffees by a new committee. 



HERBERT PARKER, ATTORNEY-GENERAL. 357 

State Board of Health — Rules and Regulations for 
Protection of Water Supply — Publication — Ex- 
pense. 

Under the provisions of R. L., c. 75, § 113, authorizing the State Board of Health 
to make rules and regulations to secure the sanitary protection of waters 
used as sources of water supply, it is the duty of such Board to cause the pub- 
lication of such rules and regulations, and to meet all expenses incidental to 
such publication. 

Replying to the inquiry of your Board under date of April 17, b^„*J?|J^*® 
I have to say that, in my opinion, the duty of publishing notice ^IqJ^^- 
of rules established by your Board for the sanitary protection of ^^^^ ^^' 
the waters for the water supply of Taunton is imposed upon 
your Board ; it appearing that in the latter part of the year 1901 
the water commissioners of the city of Taunton petitioned the 
State Board of Health for the establishment of rules and regu- 
lations to prevent pollution and secure sanitary protection for 
the waters of the Lakeville ponds, they being the water supply 
of said city. After examination, a set of rules and regulations 
were prepared by the State Board; and the question has now 
arisen whether the duty of publishing notice of such rules de- 
volves upon the State Board of Health or upon the city of 
Taunton, 

The authority of the State Board in the premises is conferred 
by c. 75, § 113, of the Revised Laws, which is a substantial re- 
enactment of c. 510 of the Acts of 1897. Those provisions are 
that the State Board may cause examination of such waters 
(including streams and ponds used for water supply), to ascer- 
tain their purity and fitness for domestic use. The Board may 
further make rules and regulations to prevent the pollution and 
secure the sanitary protection of all such waters as are used as 
sources of supply. Presumably the water commissioners of 
Taunton petitioned the State Board under the provisions of this 
law. 

Section 114 of the Revised Laws, c. 75, provides that the pub-_ 
lication of an order, rule or regulation made by the Board under 
the provisions of § 113 is to be made in a newspaper published 



358 OPINIONS OF THE ATTORNEY-GENERAL. 

in the city or town in which such order is to take effect; or, if 
there be no newspaper so pubhshed, a copy of the order is to be 
posted in some pubhc place in such city or town; and that such 
pubhcation shall be legal notice to all persons. An affidavit 
thereof is to be made by the person causing such publication, 
and is to be filed and recorded in the office of the clerk of the city 
or town, and such affidavit is to be admitted as evidence of the 
time, place and manner in which the notice is given. 

Section 116 of c. 75 provides that said Board may appoint, 
employ and fix the compensation of such agents, clerks, servants 
and assistants as is considered necessary; and further provides 
that such agents and servants shall cause the provisions of law 
relative to the pollution of water supplies and of the rules and 
regulations of the Board to be enforced. 

Section 117 of the same chapter provides, among other things, 
that no person shall be required to bear the expense of consulta- 
tions with or advice or experiments of the State Board in this 
connection. 

The making and promulgation of rules and regulations for the 
protection of a water supply is a part of the duty of the State 
Board, and may be invoked by municipalities for their protec- 
tion. Section 113, before referred to, provides that the Board 
may make rules and regulations to prevent the pollution and to 
secure the sanitary protection of such waters. The making and 
promulgation of these rules is plainly an incident to secure such 
protection, and is a necessary preliminary to their enforcement. 

For these reasons I have reached the opinion which I have 
above stated, to the effect that the State Board should, under 
the circumstances, secure the publication of the rules and regu- 
lations made by them in the premises; and that this duty does 
not devolve upon the municipality, nor should any expense in- 
cident thereto be charged to the city. 



HERBERT PARKER, ATTORNEY-GENERAL. 359 

Massachusetts Agricultural College — Fund derived from 
Proceeds of Sale of Public Lands — Payment of In- 
terest BY Commonwealth. 

The obligation imposed upon tlie Comnaonwealth by St. 1863, c. 166, accepting 
the pro\'isions of the United States statute of June 2, 1862 (12 U. S. St., 
c. 130), to pay to the Massachusetts Agricultural College interest upon the 
fund derived from the proceeds of the sale of public lands as therein pro- 
vided, requires the Commonwealth to pay only such rate of interest as it is 
reasonably able to obtain by the investment of such fund in safe securities. 
The whole amount of such interest, once accrued, must be paid without 
diminution to such college. 



You have requested my opinion whether, in view of the United ^uj'\o, 
States statute of July 2, 1862 (12 U. S. St., c. 130), and the Mayli. 
Massachusetts statute of 1863, c. 166, accepting the provisions 
of the federal statute, the Commonwealth must pay to the Mas- 
sachusetts Agricultural College interest upon the fund therein 
described at the rate of five per cent., or only at such rate as it 
is possible to obtain. 

By the statute above cited the United States government 
granted to the Commonwealth public lands upon condition that 
all moneys derived from their sale were to be invested in safe 
stocks, yielding not less than five per cent, on the par value, the 
money so invested to constitute a perpetual fund, the capital of 
which should remain forever undiminished, the interest to be in- 
violably appropriated to the endowment of an agricultural college. 
The act further provided as follows: "If any portion of the fund 
invested or any portion of the interest thereon shall, by any 
action or contingency, be diminished or lost, it shall be replaced 
by the state, so that the capital of the fund shall remain forever 
undiminished, and the annual interest shall be regularly appUed 
without diminution to the purposes named." This statute was 
accepted by the Massachusetts statute of 1863, c. 166, and the 
beneficiary of the fund, the Massachusetts Agricultural College, 
was incorporated by St. 1863, c. 220. I am informed that an 
investment of the fund at so high a rate of interest has now 
ceased to be possible. 

In the first place, the question arises whether the following 
provision by itself requires the Commonwealth to pay five per 



360 OPINIONS OF THE ATTORN F.Y-GENERAL. 

cent, at all events: "If any portion of the fund invested or any 
portion of the interest thereon shall by any action or contingency 
be diminished or lost, it shall be replaced by the State, so that 
the capital of the fund shall remain forever undiminished." I 
believe that this applies only to a loss of interest which has ac- 
crued, — not to a diminution in the rate of interest. This is in- 
dicated by the language, ''any portion of the interest." Neither 
is there anything in the language which follows, "the annual 
interest shall be regularly applied without diminution to the pur- 
poses named," to indicate a guaranty that the rate shall not be 
diminished. 

The vital question arises upon the provision that all moneys 
are to be invested in safe stocks, yielding not less than five per 
cent, upon the par value. Naturally, this refers not only to the 
original investments, but, in general, to reinvestments. 

It is possible to construe this as a condition that the Common- 
wealth shall forever invest the fund at five per cent., or pay the 
difference to the college; but, in my judgment, this is not its 
true construction. Even if it were an ordinary contract, in which 
a trustee agreed in similar terms to invest a fund, a fair interpre- 
tation of his obligation would not be that he insured forever the 
stability of high rates of interest. Without express language, 
one who engages to deliver a specific article does not insure its 
continued existence, nor does any contractor warrant the per- 
manence of the existing law. Butterfield v. Byron, 153 Mass. 
517; Howell v. Coupland, L. R. 1 Q. B. D. 258; Stewart v. Stone, 
127 N. Y. 500; Baily v. De Crespigny, L. R. 4 Q. B. 180. Upon 
similar grounds, it is not a reasonable construction of such trus- 
tee's contract to say that he guarantees that the business con- 
ditions of the last generation shall persist. 

In the present case such a construction is even less to be ac- 
cepted. The obligation of the Commonwealth is not expressed 
in its own language, but by the acceptance of a grant with a 
condition annexed. If doubt existed as to the reasonable con- 
struction of the condition, it should be resolved in favor of the 
Commonwealth. 

For the above reasons, I am of opinion that the Common- 
wealth is required to pay only such rate of interest as it is rea- 



HERBERT PARKER, ATTORNEY-GENERAL. 361 

sonably able to obtain by investment in safe securities, and that 
the whole of such interest, once accrued, is to be regularly ap- 
plied without diminution to the Agricultural College. 



Militia — Naval Brigade — Cities and Towns — Duty to 
FURNISH Accommodations for Boats and Equipment. 

R. L., c. 16 § 105, makes it the duty of cities and towns, within the limits of which 
portions of the volunteer militia are located, to provide suitable accommoda- 
tions for the equipment necessary to secure the proper efficiency of such 
militia; and, if an existing armory is not adequate for the storage of boats 
and other equipment used by a company of the Naval Brigade, a recognized 
part of the militia of the Commonwealth, quartered within any city or town, 
proper accommodations must be supplied by such city or town either within 
the armory itself or by securing suitable buildings elsewhere. 

I beg to acknowledge the receipt of your inquiry of June 19, ^o the 
relating to the duty imposed upon cities and towns by the pro- *^i902'^''^^- 
visions of R. L., c. 16, § 105, of maintaining suitable armories '^^}l2^- 
for the volunteer militia for drill and for the safe-keeping of 
military property. 

The specific question upon which you desire my opinion is as 
follows: "The Naval Brigade being a part of that militia, and 
boat drills being an important part of their instruction, is it not 
incumbent, under the law, for cities and towns to provide suit- 
able accommodations for the safe-keeping and storage of boats 
and equipment, by the erection of boat houses?" 

R. L., c. 16, § 105, provides: "The mayor and aldermen and 
selectmen shall provide for each regiment, battalion, corps of 
cadets, or portion of the volunteer militia, within the limits of 
their respective cities and towns, a suitable armory for the pur- 
pose of drill and for the safe keeping of the arms, equipments, 
uniforms and other military property, suitable places for parade, 
drill and target practice; and a suitable room for the headquar- 
ters located within their limits of each brigade, regiment, sep- 
arate battalion or corps of cadets, for the keeping of books, the 
transaction of business and the instruction of officers, with nec- 
essary fuel and lights, or a reasonable allowance therefor, for 
each armory or headquarters located within their limits. Any 
city or town failing to comply with this section shall forfeit to 



3lJ2 OPINIONS OF THE ATTORNEY-GENERAL. 

the use of the commonwealth not more than five thousand 
dollars." 

This section expressly requires cities and towns to provide 
suitable quarters for bodies of militia which may be within their 
respective limits; and, as the Naval Brigade forms a recognized 
part of the militia of the Commonwealth, it becomes the duty 
of cities and towns where portions of the Naval Brigade are 
located to furnish suitable accommodations for the equipment 
necessary to secure the proper efficiency of such militia. I am 
of opinion, therefore, that, if an existing armory is not adequate 
to store the boats and equipment used by a company of the 
Naval Brigade within the limits of any city or town, such accom- 
modations must be provided either within the armory itself or 
by procuring suitable buildings elsewhere (1 Op. Atty.-Gen. 63). 



To tlie Com- 
missioner of 
Corporations. 

li»0-2 
August 7. 



Corporation — Effect of Attempt to organize under Re- 
pealed Statute. 

An organization formed under the provisions of G. S., c. 61, subsequent to tlie 
repeal of sucli statute by St. 1870, c. 224, but not in compliance witii tiie 
provisions of the existing law, is not a corporation existing by authority of 
the laws of this Commonwealth, and therefore is not subject to R. L., cc. 14, 
109 and 110. 

In your letter of July 21 you ask whether the Hebron Manu- 
facturing Company of Attleborough is a Massachusetts corpora- 
tion, and state the following facts: — 

Certain persons filed in the office of the town clerk of Attle- 
borough, February 27, 1871, a sworn certificate, dated February 
22, 1871, of their organization as a corporation under the above 
name, "in pursuance of c. 61 of the General Statutes and the 
acts in addition thereto." No certificate was filed in the office 
of the Secretary of the Commonwealth, and there is no evidence 
in his office, or in yours, that such a corporation has ever existed. 
The company has never made the returns required by law, and 
has never been taxed as a corporation. The only change in its 
status since the date of the certificate of organization is in the 
ownership of shares. It has kept up its organization by the 
election of oflficers, and holds itself out to the public as being a 
corporation. 



HERBERT PARKER, ATTORNEY-GENERAL. 363 

Had these persons organized in the above manner prior to the 
repeal of c. 61 of the General Statutes, probably they would be a 
corporation, notwithstanding their failure to comply with some 
of the directions in that chapter. See Merrick v. Reynolds En- 
gine and Governor Comfany, 101 Mass. 381. But on May 9, 
1870, this chapter of the General Statutes was repealed by St. 
1870, c. 224, which provided, in § 1, that the subscribers to a 
corporation agreement should become a corporation upon com- 
plying with the provisions of § 11. The latter section provided 
for a submission of the certificate of organization and the record 
to the inspection of the Commissioner of Corporations, and, upon 
his approval, required that the certificate be filed in the office of 
the Secretary of the Commonwealth. Since these requirements 
which the statute provided as express conditions to the creation 
of a corporation were not observed, I am of opinion that this 
company is not a corporation existing by authority of our laws, 
and is therefore not subject to cc. 14, 109 and 110 of the Revised 
Laws. 

Whether it is a de facto corporation I have not considered, 
because it is the duty of officials of the Commonwealth not to 
recognize as having corporate existence a body of persons against 
whom it may be expedient for the Commonwealth to proceed by 
quo warranto to oust them from the illegal enjoyment of corporate 
franchises. 



Metropolitan Park Commission — Police Jurisdiction over 
Roadways and Boulevards — Local Police — Right of 

Entry. 

The police of any city or town have no authority to enter upon roadways or boule- 
vards exclusively controlled by the Metropolitan Park Commission for the 
general purpose of maintaining the public peace and order within the limits 
of such roadways or boulevards. The right of local officers of police to enter 
upon such premises is confined to the pursuit and apprehension of persons 
who have committed a breach of any statute, ordinance or regulation within 
the limits of an adjacent city or town, and have taken refuge upon a roadway 
or boulevard controlled by such commission. 

Your letter of July 14 requests my opinion as to the extent of p^i";f,,^/4rr 
the authority of the police appointed by a city or town within the t^ommission. 
limits of land taken by the Commonwealth for parkway or ^^^ '■ 



3G4 OPINIONS OF THE ATTORNEY-GENERAL. 

boulevard purposes in such city or town, under St. 1894, c. 288, 
the so-called boulevard act. 

St. 1894, c. 288, § 3, provides as follows: "In furtherance of 
the powers herein granted said board may appoint clerks, police 
and such other employees as it may from time to time find neces- 
sary for the purposes of this act, remove the same at pleasure, 
and make rules and regulations for the government and use of 
the roadways or boulevards under its care, breaches whereof 
shall be breaches of the peace, punishable as such in any court 
having jurisdiction of the same; and in addition said board shall 
have the same rights and powers and in regard to the roadways 
or boulevards taken and constructed hereunder as are or may 
be vested in them in regard to other open spaces by said chapter 
four hundred and seven and acts in amendment thereof and in 
addition thereto, and shall have such rights and powers in regard 
to the same as, in general, counties, cities and towns have over 
public ways under their control; provided, however, that nothing 
in this act contained shall be taken or held to affect or abridge 
the right of any city or town lying within said district to pursue 
and apprehend, as it lawfully may from time to time, any person 
or persons who commit within the limit of said city or town any 
breach of any statute, ordinance or regulation." 

St. 1893, c. 407, § 3, provides that the jurisdiction and powers 
of the Park Commission shall extend to and be exercised within 
the metropolitan parks district, the limits of which are therein 
defined. 

Section 4 authorizes the commission to preserve and care for 
the public reservations and open spaces established by it, and 
further provides that: "In furtherance of the powers herein 
granted, said board may employ a suitable police force, make 
rules and regulations for the government and use of the public 
reservations under their care, and for breaches thereof affix 
penalties not exceeding twenty dollars for one offence, to be 
imposed by any court of competent jurisdiction; and, in general, 
may do all acts needful for the proper execution of the powers and 
duties granted to and imposed upon said board by the terms of 
this act." 



HERBERT PARKER, ATTORNEY-GENERAL. 365 

St. 1895, c. 450, §§ 7, 8 and 9, provide as follows: ''Section 7. 
Said commission shall publish the rules and regulations made by 
it from time to time. Said publication shall be made at least six 
times in at least three newspapers printed and published in each 
county which is wholly or in part within said metropolitan parks 
district, and such publication shall be sufficient notice to all 
persons. The sworn certificate of any member of said commis- 
sion, or of its secretary, that said rules and regulations have been 
published as herein provided, shall be prima facie evidence 
thereof. A copy of said rules and regulations, attested by any 
member of said commission, or by its secretary, shall be prima 
facie evidence that said rules and regulations have been made by 
said commission, as provided by law." "Section 8. Whoever 
violates any rule or regulation lawfully made by said commission 
shall be punished by a fine not exceeding twenty dollars." "Sec- 
tion 9. The police appointed or employed by said commission in 
accordance with the provisions of chapter four hundred and 
seven of the acts of the year eighteen hundred and ninety-three 
and chapter two hundred and eighty-eight of the acts of the year 
eighteen hundred and ninety-four shall have all the powers of 
police officers and constables for the maintenance of the public 
peace upon any lands, roadways or boulevards under its care, 
and upon any roadways passing through or bordering upon said 
lands." 

St. 1896, c. 465, § 1, provides that certain exceptions and res- 
ervations in takings by the Commonwealth shall be valid, effect- 
ual and binding; "but no such grant, agreement, license or 
arrangement shall be taken or held to abrogate or abridge the 
control of said board over the land included in said taking except 
as in said exceptions and reservations provided, or the right of 
said board from time to time in its discretion to make rules and 
regulations for the government and use of any roadway, boule- 
vard or crossway, which may at any time hereafter be laid out 
and maintained over said land or over any portion thereof, not 
inconsistent with such exceptions and reservations." 

Section 2 provides: "Said commission is hereby authorized 
and empowered to transfer for care and control, including police 



3fi6 OPINIONS OF THE ATTORNEY-GENERAI.. 

protection, any lands or rights or easements or interest in land, 
although the same be a roadway or boulevard owned or con- 
trolled by it, to any city, town or county, or local board of a 
city or town within the metropolitan parks district, with the con- 
sent of such city, town, county or board, and upon such terms 
and for such period as may be mutually agreed upon, and to 
enter into an agreement with any such city, town or county or 
board for the joint care and control or police protection of said 
land or boulevard, and also for laying out, constructing and 
maintaining streets or ways into or across any such land or 
boulevard; and any city, town or county, or any local board 
within the metropolitan parks district, is hereby authorized and 
empowered to transfer for care and control, including police pro- 
tection, any land, rights, easements or interest in land in its con- 
trol, although the same be already a part of a public street owned 
or controlled by it, to the metropolitan park commission for 
such period and upon such terms as may be mutually agreed 
upon, and to enter into an agreement with said commission for 
the joint care and control, including police protection, of said 
land or street." 

St. 1897, c. 121, § 3, provides: "The police appointed or em- 
ployed by said commission, in accordance with the provisions of 
chapter four hundred and seven of the acts of the year eighteen 
hundred and ninety-three and chapter two hundred and eighty- 
eight of the acts of the year eighteen hundred and ninety-four 
and all acts in amendment thereof and in addition thereto, shall 
have within the metropolitan parks district all the powers of 
police officers and constables of cities and towns of this Common- 
wealth, except the power of serving and executing civil process, 
and when on duty may carry such weapons as said commission 
shall authorize." 

It is the clear intention of these statutes to vest in the Metro- 
politan Park Commission the entire care and control of the 
premises taken for parks, reservations and boulevards, and to 
make the commission responsible for their preservation and for 
the maintenance of good order within their limits. With regard 
to parkways or boulevards, the commission are given all the 



HERBERT PARKER, ATTORNEY-GEXERAL. 367 

powers vested in them in regard to open spaces by St. 1893, 
c. 407, and, in addition, such rights and powers with regard to 
the same as, in general, cities and towns have over pubhc ways 
under their control. All rights and powers previously vested in 
cities and towns and in the officers thereof are taken away, and 
the entire control vested in the park commission (1 Op. Atty.- 
Gen. 588, 590). Their authority over parkways and boulevards, 
therefore, would seem to be, from the language of St. 1894, c. 288, 
more extensive than that given them over open spaces taken for 
park purposes. 

As the Metropolitan Park Commission, by virtue of the stat- 
utes above quoted, is vested with the complete and exclusive 
care and control of the roadways, parkways and boulevards 
under its jurisdiction, it is charged with the preservation of good 
order thereon, and may create and maintain a poUce force for 
the following purposes : — 

(1) To enforce the rules and regulations which the commission 
is authorized to estabhsh over parkways and boulevards within 
its care and control. This enforcement is exclusively confided to 
the Metropolitan Park Commission, except where the commission 
has transferred, under the provisions of St. 1896, c. 465, the care 
and control of such places to city or town authorities, or has 
entered upon an agreement with any city or town for the joint 
control thereof. 

(2) To maintain the public peace upon roadways or boulevards 
controlled by the commission, and upon any roadways passing 
through or bordering upon the same. The duty of enforcing the 
public peace upon such roadways or boulevards rests exclusively 
upon the commission, with the exception of the transfers or agree- 
ments provided for by St. 1896, c. 465; and the metropolitan 
police are vested with all the powers of police officers or con- 
stables (except that of serving civil process), for the purpose of 
performing their duties not only upon the parkway itself, but 
throughout the metropolitan district (see St. 1897, c. 121, § 3). 

I am, therefore, of the opinion that the maintenance of the 
pubhc peace and the enforcement of the rules and regulations es- 
tabUshed by the commission upon ah roadways and boulevards 



308 OPINIONS OF THE ATTORNEY-GENERAL. 

controlled by them is entrusted solely to the commission, except 
in cases where such control is transferred to or shared with cities 
and towns under the provisions of St. 1896, c. 465; and that the 
local police of cities and towns have no authority to enter upon 
such roadways and boulevards for the purpose of maintaining 
the peace thereon. It should not be forgotten, however, that the 
city or town police are expressly authorized to enter upon such 
places for the purpose of pursuing and arresting persons guilty 
of offences 'committed within the limits of any city or town and 
without the limits of the jurisdiction of the commission. 

It follows, therefore, that the authority of the local police to 
enter upon roadways or boulevards exclusively controlled by the 
Metropolitan Park Commission is confined to the pursuit and 
apprehension of persons who have committed a breach of any 
statute, ordinance or regulation within the limits of an adjacent 
city or town, and have taken refuge upon such parkway or boule- 
vard ; and that they have no authority to enter upon such road- 
ways or boulevards for the general purpose of maintaining the 
public peace and order within the limits of the roadways and 
boulevards under the jurisdiction of the commission. 



Extradition — Governor — Executive Discretion — Ex- 
pediency. 

The right of the Governor of this Commonwealth to consider questions of expe- 
diency or discretion exists onlj' upon appHcations for requisition issuing from 
this Commonwealth, or upon demands for tlie extradition of persons held 
here in custody to answer for crimes against the Commonwealth, or the 
United States, or by force of any civil process. 

Governor. ^^ tlic matter of the demand of the Executive of North Caro- 

August2i. lina for the extradition of Monroe Rogers, an alleged fugitive 
from the justice of that State, I have the honor to report that, 
in obedience to Your Excellency's direction, I have heard re- 
monstrants to the honoring of this demand, and the fullest op- 
portunity has been given for the presentation of evidence and 
arguments in support of the contention raised in behalf of the 
alleged fugitive. 



HERBERT PARKER, ATTORNEY-GEXERAL. 369 

I have to advise Your Excellency that, in my opinion, all the 
essential reciuirements establishing the validity as to matters of 
form and substance of the demand for extradition, with its accom- 
panjdng documents, are complied with, and are in accordance with 
the provisions of the Revised Statutes of the United States, § 5278. 

Learned counsel for the alleged fugitive contended that the 
application for extradition, with its various exhibits and docu- 
ments, was defective in form, and insufficient in respect to sub- 
stantive and necessary allegations of fact and law; but, in my 
opinion, these contentions are not well founded, and must be 
overruled. If there be error in my conclusion, I am reassured, 
and the rights of the prisoner are amply protected, since he may 
invoke the aid of courts having competent jurisdiction, upon a 
writ of habeas corpus, to review and revise this determination of 
issues of law. 

I am further forced to the conclusion that, under the provi- 
sions of the Constitution of the United States and the statutes 
founded thereon. Your Excellency is required to honor the requi- 
sition. The counsel and citizens who have interested themselves 
in the important considerations raised by this case very earnestly 
and forcibly urged, even insisted, that, under § 12 of c. 217 of the 
Revised Laws of Massachusetts, it is my duty, under the re- 
sponsibility imposed upon me, to consider and advise Your Ex- 
cellency not only as to the law of the case, but, as well, as to the 
expediency of Your Excellency's favorable action upon the 
demand of the Executive of North Carolina. 

I am of opinion, however, that my investigation must be con- 
fined to the legal aspects of the case, and that Your Excellency's 
action must be controlled by the requirements of the Constitu- 
tion and statutes of the LTnited States, and that the Massachu- 
setts statutes cannot be operative except in so far as is consistent 
with the federal law. Upon this view, the right of Your Ex- 
cellency to consider questions of expediency or discretion exists 
only upon applications for requisition going from this Common- 
wealth, or upon demands for persons held here in custody to 
answer for crimes against this Commonwealth, or the United 
States, or by force of any civil process. 



370 OPINIONS OF THE ATTORNEY-GENERAL. 

These considerations seem to me conclusive, and require that 
Your Excellency honor the reciuisition from North Carolina. 

Giving the widest latitude to the inquiry upon this issue of 
expediency or discretion raised by the respondent, and for the 
purpose of giving full consideration to the question of the right 
of Your Excellency to exercise discretion in your official action, 
I heard arguments and statements tending, as the remonstrants 
claimed, to justify or to require Your Excellency, upon this issue 
of expediency or discretion, to refuse the rendition of the prisoner 
upon extradition. The remonstrants offered as evidence printed 
statements from newspapers published in southern States and in 
the State of North CaroUna, and declarations made upon hearsay, 
tending to show that mob violence prevailed in that State to such 
an extent and so universally as to compel the conclusion that no 
negro accused of crime could or would have a fair trial according to 
law in any southern State, and that he would, if returned upon this 
requisition, be made the victim of the lawless violence of a mob. 

Accepting the contention of the remonstrants, that Your Ex- 
cellency has discretion to honor or deny the extradition, and that 
executive or judicial discretion cannot be revised by any other 
tribunal, but rests upon the responsibility of him authorized to 
exercise it, it is, nevertheless, true that the field within which 
such discretion may be exercised must be determined by estab- 
lished principles of law as to the competency of the evidence 
submitted for its exercise. 

Upon these considerations, I must advise Your Excellency 
that no competent evidence was offered establishing or tending 
to show any conditions affecting or overcoming the presumption 
of law, borne upon the application for extradition itself, that the 
alleged fugitive, if returned, will be dealt with according to law. 
The presumption obtains and remains until overcome by com- 
petent evidence, that the allegations, assurances and pledges 
contained in the application are made in good faith and for the 
purpose declared; namely, to insure a trial of the alleged fugitive 
in the only courts having jurisdiction of the alleged crime, in 
accordance with the principles of law. I am of the opinion, how- 
ever, that, even if Your Excellency is to assume that the evidence 



HERBERT PARKER, ATTORNEY-GENERAL. 371 

offered as such was competent, and did tend to show a lawless 
condition in North Carolina, and the inability of the lawfiil 
authorities to secure a fair trial to the alleged fugitive, still, I am 
compelled to declare that I know of no tribunal within this Com- 
monwealth, and none that can be established even by Your 
Excellency, that has jurisdiction to try this question of fact, or 
before which the sovereign State of North Carolina could be 
required to appear as petitioner or respondent. 

But, again, even resolving all these questions in favor of the 
contention of the remonstrants, and considering the issue as one 
of expediency or discretion under the statutes of this Common- 
wealth, I am compelled to suggest, if it be within my province, 
that Your Excellency might well hesitate to refuse the rendition 
of this alleged fugitive, for the reasons urged by the remon- 
strants ; for such refusal upon such grounds would be tantamount, 
as it seems to me, to declaring that the State of Massachusetts 
offers itself as a sanctuary where persons charged with crime, 
fleeing from the southern States, may secure immunity from 
punishment if guilty; for certain it is, they could not here be 
tried or punished. None can doubt the necessity or the justice 
of those laws which are enacted, and which officials must enforce, 
to protect the community whose interests are intrusted to them 
from the invasion or infection of fugitives or immigrants justly 
charged with, or guilty of, the commission of crime; nor is the 
consideration unworthy of notice, that the attitude of this Com- 
monwealth, apparently or avowedly offering such sanctuary to 
escaped criminals, could not fail to encourage, because of this 
hoped-for immunity, the perpetration of crime in a sister State. 
For these reasons, which I respectfully submit to Your Excel- 
lency, I am of the opinion that, upon any view of discretion or 
expediency, upon grounds presented by the remonstrants your 
executive duty requires the honoring of this requisition. 

There is, among the documents submitted for my examination, 
and at Your Excellency's suggestion by me made known to the 
remonstrants, a letter to Your Excellency from the Governor of 
the State of North Carolina, in express and unequivocal terms 
declaring (indeed, promising Your Excellency), upon the faith 



372 OPINIONS OF THE ATTORNEY-GENERAL. 

of the Executive himself and of the State he represents, safety 
from violence and a fair trial to the accused, if he be rendered in 
accordance with the demand for extradition. This communica- 
tion I do not consider as evidence supporting or re-enforcing the 
pledges and obligations in law set forth in the demand for extra- 
dition itself; but it is significant and important, as tending, right- 
fully and conclusively, in my opinion, to allay any reasonable 
fear of violence or lawlessness that might be entertained by the 
alleged fugitive or by his friends. And in this connection I cite 
a case referred to by the learned counsel for the prisoner, and 
confidently relied upon by him as supporting his contention, 
that in the exercise of Your Excellency's discretion the extradi- 
tion should be denied. 

The opinion does not present the decision of any court of last 
appeal, but is a nisi prius opinion of a justice of the court of 
common pleas in the State of Ohio, and is in the matter of one 
Hampton, an alleged fugitive from Kentucky. The learned 
justice, in discussing the issues raised upon a writ of habeas 
corpus, construes the rights and duties of an executive or of a 
court as to matters of discretion concerning the rendition of the 
fugitive more liberally than elsewhere, so far as I know expressed 
by any judicial authority. But it is exceedingly significant that 
even in this case the learned justice comments upon the fact that 
there was before him evidence tending to rebut the presumption 
of good faith, raised by the demand for extradition itself. The 
court uses this language: ''If these extradition proceedings had 
been regular as to form, had by duly authenticated court records 
charged a crime, and the proof established that he was a fugitive 
from justice, it would be my duty to remand the prisoner to the 
sheriff for delivery to the agent of the demanding State, save as 
I have said, for the proof before me that he cannot securely take 
back and keep him safe for trial by law. I therefore asked him 
to get me the assurance of the trial judge, who reasonably would 
know the state of feeling and the probabilities of safety locally, 
antl of the Governor of the State as the head of the executive 
power thereof, and amply able, if forewarned, to protect the 
prisoner from violence." 



HERBERT PARKER, ATTORNEY-GENERAL. 373 

The earnest and convincing declarations of His Excellency the 
Governor of North Carolina, submitted in this case, would com- 
pel, even under the authority of the case cited by the remon- 
strants, the rendition of this alleged fugitive. If the evidence 
offered in the case before me tended to rebut or overcome this 
presumption of good faith set forth in the requisition. Your 
Excellency must, as I believe, accept, both upon the presump- 
tions of law and under the fixed principle of comit}'" between 
States, and upon the good faith that must attend the declaration 
of the Governor of North Carolina, assume, and act upon the as- 
sumption, that the rendition of the alleged fugitive is sought only 
for the purpose of trying him in accordance with law; and that 
the State of North Carolina both can and will secure the personal 
safety of the prisoner as against any power save that of the law 
he is said to have violated. 



Legacy Tax Act — Postponement of Tax — Non-resident 
Decedents — Intervening Life Estate. 

The provisions of St. 1902, c. 473, are not applicable to the estates of non-resident 
decedents. 

The statute postpones the time when the legacy tax shall become due upon a 
taxable remainder until the time when such remainder vests in the remain- 
derman, without reference to the character of the life estate which precedes 
it. 

By a communication dated August 6, you request my opinion Tothe 

J o > J n ./ 1 Treasurer 

upon certain questions with regard to the construction of St. '^""^p^^^f*^^'"' 
1902, c. 473. The act is as follows: '' Section 1. In all cases JJ^loe. 
where there has been or shall be a devise, descent or bequest to 
collateral relatives or strangers to the blood, liable to collateral 
inheritance tax, to take effect in possession or come into actual 
enjoj^ment after the expiration of one or more life estates or a 
term of years, the tax on such property shall not be payable nor 
interest begin to run thereon until the person or persons entitled 
thereto shall come into actual possession of such property, and 
the tax thereon shall be assessed upon the value of the property 
at the time when the right of possession accrues to the person 



374 OPIXIONS OF THE ATTORXEy-GENEllAL. 

entitled thereto as aforesaid, and such person or persons shall 
pay the tax upon coming into possession of such property. The 
executor or administrator of the decedent's estate may settle his 
account in the probate court without being liable for said tax: 
provided, that such person or persons may pay the tax at any 
time prior to their coming into possession, and in such cases the 
tax shall be assessed on the value of the estate at the time of the 
payment of the tax, after deducting the value of the life estate 
or estates for years; and provided, further, that the tax on real 
estate shall remain a lien on the real estate on which the same is 
chargeable until it is paid." "Section 2. This act shall take 
effect upon its passage." 

You ask, first, does St. 1902, c. 473, entitled "An act relative 
to taxes upon collateral legacies and successions," apply to the 
estates of non-resident decedents; and, second, is said statute 
applicable to estates of resident decedents in cases where the 
intervening life estate is taxable? 

The first question is not free from difficulty. The statute does 
not in terms distinguish between the estates of resident and non- 
resident decedents, and there is much force in the contention 
that no such distinction was contemplated by the Legislature 
in its enactment. It will result, however, if the act is construed 
to include the estates of non-resident decedents, that the existing 
law relating to the taxation of collateral legacies and successions 
will become practically inoperative or at least ineffective in every 
case where personal property of a non-resident decedent, which 
may be within the jurisdiction of the Commonwealth, vests in or 
comes into the actual possession of a collateral relative or stranger 
to the blood liable to the collateral inheritance tax, after the 
expiration of one or more life estates, and both the property and 
the legatee in whom it vests are beyond the limits of the Com- 
monwealth. 

In view of what I deem to be the purpose of the statute, I can- 
not believe that the legislature intended by implication to effect 
so radical a change in the existing law. The undoubted object 
of St. 1902, c. 473, was not to disturb the ultimate liability of 
taxable persons and its enforcement, as at present fixed under 



HERBERT PARKER, ATTORNEY-GENERAL. 375 

the collateral inheritance tax law, but to revise or amend the law 
only so far as relates to the time when such liability shall in 
certain cases accrue. Upon this construction of the statute I am 
forced to take the view that it does not serve to postpone the 
time when the tax shall be due and payable, where there has been 
a devise, descent or bequest, consisting of property in this Com- 
monwealth belonging to a non-resident, which vests or takes 
effect in possession in the future; and that your first question 
must be answered in the negative. 

This conclusion receives confirmation from the language of the 
act itself. The statute provides that "The executor or admin- 
istrator of the decedent's estate may settle his account in the 
probate court without being liable for said tax," a provision which 
can only apply to the estates of resident decedents, since the exec- 
utor or administrator of a non-resident decedent is not required 
to file an account in the probate court of this Commonwealth, but 
may receive the property of the decedent which may be within 
the jurisdiction of the Commonwealth, upon the allowance by 
the court of the petition required by R. L., c. 148, § 3 (see R. L., 
c. 15, §§ 12, 13 and 14), if it appears that such executor or ad- 
ministrator is, in the State where he is appointed, liable for the 
property so received. This language, therefore, supports the 
conclusion that the provisions of St. 1902, c. 473, can only apply 
to estates the executors or administrators of which are com- 
pelled to file an account in the probate courts of this Common- 
wealth. 

To your second question I am of opinion that I must reply in 
the affirmative. Neither the purpose nor the language of the act 
can be construed to warrant a distinction between an intervening 
life estate which is taxable and one which is not taxable. The 
statute clearly postpones the time when the tax shall become 
due upon a taxable remainder to the time when such remainder 
vests in the remainderman, without reference to the character 
of the life estate which precedes it. 



37G 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Metro- 
politan P;irk 
Coniinissioii. 

September 4. 



Metropolitan Park Commission — Business of Common 
Victualler — License from Local Authorities. 

The Metropolitan Park Commission is not authorized to conduct, through em- 
ployees, a common victualler's business on land taken by such commission, 
without first obtaining a license therefor from the authorities of the citj' or 
town within the limits of which such land is situated, nor can a lessee of the 
Commonwealth conduct such business on land so taken without a license 
from the local authorities. 

In answer to your inquiry in behalf of the Metropohtan Park 
Commission, stated as follows, I transmit my opinion herein- 
after set forth. The inquiry is, whether the commission, through 
its employees, may conduct a common victualler's business on 
land taken by this commission, without first obtaining a license 
from the city or town in which the lands are situated; and also 
wliether a licensee of the Commonwealth, through this commis- 
sion, may carry on the business of a common victualler on lands 
taken by this commission for parks or parkways, without license 
from the city or town within which the business is so carried 
on. 

In previous cases the Attorney-General has decided that the 
Commonwealth, in the care of its own property, is not subject 
to the regulations of general legislation respecting similar prop- 
erty owned by individuals. Thus, the elevators of the St^te 
House are not to be inspected by the officials of the city. 

The just effect of this doctrine is strikingly apparent in case 
the rule is made not by the Legislature, but by a subordinate 
body, like the board of health of a town. It is presumed that a 
town board of health, by its regulations concerning plumbing, 
may not prescribe the plumbing of a building within the town 
which is under the care and control of State officials (1 Op. Atty.- 
Gen. 290, 297). 

So, where the Commonwealth has expressly delegated the 
performance of certain work to its own agents, they are not sub- 
ject to the direction or control of local officials. The Governor 
and Council l^uilding the State House park are not required to 
obtain a permit from the street commissioner of Boston before 
digging in the streets. Othenvise, confusion might result in case 



HERBERT PARKER, ATTORNEY-GENERAL. 377 

the street commissioner should refuse the permit, and a pubUc 
work conducted by and in the name of the Commonwealth be 
delayed, if not entirely suspended. 

So the metropolitan park police, being expressly empowered, 
have exclusive jurisdiction of offences committed in their terri- 
torial district. 

On the other hand, a dog, though he chances to be the prop- 
erty of the Commonwealth, must be licensed (1 Op. Atty.-Gen. 
300). And agents of the Commonwealth carrying swill through 
the streets of a town must conform to the rules of the local board 
of health (1 Op. Atty.-Gen. 299). 

In every case we are to seek the intention of the Legislature. 
When it has given the care and control of property to certain 
agents, it is not reasonable to suppose that it intends them to be 
interfered with by other officials. When it expressly requires a 
certain act to be done upon the property of the Commonwealth 
by its agents, in general it does not intend that act to be subject 
to the restrictions which would attach to its doing by an individ- 
ual as a personal matter. For example, in the present question, 
if the Legislature definitely required the Park Commission to 
maintain a common victualler's stand on . the reservation, we 
would be forced to conclude that it did not intend to make its 
maintenance depend upon the contingency of a license from 
local authorities. An agent of the Park Commission, then, car- 
rying on such business, might, if prosecuted under the general 
law, as assuming to be a common victualler without a hcense 
from the city, justify himself under the express requirement of 
the special act, else the Commonwealth might be in the position 
of requiring its agents to first obtain a license from a board 
over whose authority the commission had no control. 

But here no express provision has been made for the refresh- ■ 
ment of persons resorting to the metropolitan parks. I find no 
authority given any officials of the Commonwealth to undertake 
such a business, nor is any such ol3ligation imposed upon them. 
The Board has power 'Ho make available to the inhabitants of 
the district open spaces for exercise and recreation," to make 
rules and regulations for their government and use, and, in gen- 



378 OPINIONS OF THE ATTORNEY-GENERAL. 

eral, to do all acts needful for the proper execution of its duties 
(St. 1893, c. 407, § 4). 

In the absence of more specific power or duty in the premises 
delegated to or imposed upon the Park Commission, it is my 
opinion that the management of a common victualler's business 
remains as regulated and controlled by general legislation; and 
that one conducting such business without a Ucense from the 
local authorities could not plead successfully that no such hcense 
was required for his justification, because he was an agent of the 
Park Commission, helping to make the park available to the 
public for recreation. 

In St. 1897, c. 207, it is provided that no liquor license shall be 
granted to be exercised in any public reservation. From this it 
would appear that the Legislature did not contemplate the sale 
of liquor by unlicensed agents of the Commonwealth; yet, if the 
Park Commission can cause ice cream to be sold in parks by an 
unlicensed agent, it may sell intoxicating liquors as well in the 
same manner. 

My conclusions as above set forth apply with even greater 
force to your question relating to the authority or immunity of 
a lessee of the Commonwealth. I can conceive of no possible 
ground under which such lessee could conduct the business of a 
common victualler upon land of the Commonwealth without the 
license by law required to justify the maintenance of such busi- 
ness. 



State Highw' ay — Abandonment — Existing Highway. 

The State Highway Commission has no authority to abandon any portion of an 
existing State higliway, or to surrender such highway to a city or town. 

The abandonment contemplated in R. L., c. 47, § 8, may be made only in the case 
of lands or rights in lands taken by eminent domain, but upon which no 
State highway has been constructed or dedicated to public use. 

HiuBctts^''^^''' -'■ ^^§ ^*-* acknowledge a request of the Massachusetts Highway 

conl'inission. Commission for my opinion as to whether that commission has 

sepu-mber «. authority, under R. L., c. 47, § 8, or under any other legal pro- 

vision, to abandon an entire highway and surrender the same to 



HERBERT PARKER, ATTORNEY-GENERAL. 379 

a town, the issue being presented by a petition addressed to the 
Highway Commission by the selectmen of Watertown, the peti- 
tion being as follows : — 

To the Honorable the Massachusetts Highway Commission. 

The undersigned, the selectmen of the town of Watertown, respectfully 
request your honorable Board to abandon and surrender to said town 
that part of Main Street in Watertown which has been heretofore laid 
out and constructed as a State highway, so that after such abandonment 
and surrender this highway shall be kept in good repair and condition 
by the town and shall be under the sole control of the town, and the 
Commonwealth shall be reUeved from all expense and liability on ac- 
count thereof. 

James H. L. Coon, ' 

Joseph P. Keefe, 

A. L. Richards, 

Selectmen of Watertown. 

Section 6 of c. 47 of the Revised Laws, making provision for 
the exercise of the authority conferred upon the Board to lay out 
and take charge of State highways, after defining the prelimi- 
naries for the exercise of this authority and referring to the adop- 
tion of a way as a State highway, the law requires that '^ there- 
after it [such highway] shall be a state highway, and shall be 
constructed and kept in good repair and condition by the com- 
mission, at the expense of the commonwealth," thereby fixing 
the status of such way permanently as a State highway. 

I am of opinion, therefore, that the commission may not aban- 
don a State highway or surrender it to a town as prayed for by 
the selectmen of Watertown. 

My attention is called to § 8 of c. 47 of the Revised Laws: 
"Said commission may, with the concurrence of the mayor and 
aldermen of a city or the selectmen of a town, abandon any land 
or part thereof, or rights in land which have been taken or ac- 
quired by it in such city or town by executing, acknowledging 
and recording a deed thereof accompanied by a plan of survey 
which shall be recorded therewith. Said abandonment shall 
revest the title to the land or rights abandoned in the persons, 
their heirs and assigns, in whom it was vested at the time of the 



380 OPINIOXS OF THE ATTORXEY-GENERAL. 

taking, and may be pleaded in reduction of damages in any suit 
therefor on account of such taking;" but I am of opinion that 
this section does not authorize or even contemplate the aban- 
donment of State highways as such, after the}^ have been located 
and constructed in accordance with the provisions of that chapter. 
Section 8 of c. 47 does not authorize the abandonment of land 
or rights in land within the location of a highway after the same 
has been established and constructed and committed to the 
charge of the commission for the Commonwealth; the abandon- 
ment contemplated in § 8 may only be made of lands or rights 
in lands taken, but on which no State highway has been located, 
constructed or dedicated to the public use. 



Extradition — State Officer — Duty to notify Fugitive 
OF Right to apply for Writ of Habeas Corpus — 
Expenses. 

1. An officer serving a warrant for the rendition of a fugitive from justice, issued 

by the Governor of this Commonwealth, is not required by law to inform 
such fugitive as to liis right to apply for a writ of habeas corpus. It would 
be well, however, for the officer in each case to inform the party so arrested 
that this right is open to him. 

2. All expenses of a State officer incidental to the transportation and deliver}^ 

of a person held as a fugitive from justice must be borne by the agent of the 
demanding State, including reasonable and proper expenditures for hotel 
bills and railroad fares. 



To the Chief 
of the Massa- 
chusetts Dis- 
trict Police. 

190-2 
September 12. 



You submit to me for my opinion two questions. First, is an 
officer serving the warrant for the rendition of a fugitive issued 
by the Governor of this State upon a requisition ol^liged to in- 
form the person arrested that he has a right to apply for a writ of 
habeas corpus under R. L., c. 217, § 14? 

In answer to this inquiry, I advise you that the officer is not 
required by law to inform the person under arrest of his right to 
apply for a writ of habeas corpus, though he must give the per- 
son arrested opportunity to make such application. I am, nev- 
ertheless, of the opinion that it would be well always for the offi- 
cer to specifically inform the party so arrested that this right is 
open to him. Ordinarily, the duty of an officer is fully discharged 



HERBERT PARKER, ATTORNEY-GENERAL. 381 

when he makes service of his precept in strict accordance with 
its direction and authority. He is not required to offer advice 
as to the legal rights of the person upon whom he makes service; 
indeed, the offer of such advice might often result in serious em- 
barrassment to the officer, if, in the effort to construe the pre- 
cept and its legal effect, he was in error as to a matter of fact or 
law. 

Your second question is phrased as follows : Is the agent who 
makes the demand obliged to pay all the expenses of the officer 
who serves the Governor's warrant, such as railroad fares and 
hotel bills to and from the State line? 

I call your attention to § 13 of the chapter of the Revised 
Laws above referred to: "If the governor is satisfied that the 
demand conforms to law and oiight to be complied with, he shall 
issue his warrant, under the seal of the commonwealth, to an 
officer authorized to serve warrants in criminal cases, directing 
him at the expense of the agent who makes the demand, ... to 
take and transport such person to the boundary line of this com- 
monwealth and there deliver him to such agent." 

Under this express provision, it is clear that all expenses of 
the State officer incidental to the transportation and delivery 
of the person held are to be borne by the agent of the demand- 
ing State. Within such expenses, proper and necessary expend- 
itures for hotel bills and railroad fares of the State officer are 
to be included. 



Insurance — Annual Returns of Insurance Companies 
— Public Documents. 

Annual statements of insurance companies, filed in the office of the Insurance 
Commissioner, according to the p^o^'isions of R. L., c. 118, § 96, are papers 
which the Insurance Commissioner is by law required to receive for filing 
within the intention of R. L., c. 35, § 5, and are therefore open to inspection 
as public documents. 

I am advised by you that a question has arisen in the insur- to the insur. 

^ ^ ... ance Commis- 

ance department upon which you desire my opinion, the inquiry, ^^°°*\^j;(j2 
as stated to me, being whether the annual statements made by Sep tembe r 22. 



3«2 OPINIONS OF THE ATTORNEY-GENERAL. 

insurance companies under the provisions of R. L., c. 118, § 96, 
are public records, open to the inspection of any citizen. 

Section 96 is as follows: "Every insurance company shall 
annually, on or before the fifteenth day of January, file in the 
office of the insurance commissioner a statement which shall 
exhibit its financial condition on the thirty-first day of Decem- 
ber of the previous year, and its business of that year. For 
cause the commissioner may extend the time within which any 
such statement may be filed, but not to a date later than the fif- 
teenth day of February. Such annual statement shall be in the 
form required by the insurance commissioner. He shall em- 
body therein, so far as appropriate to the several companies, 
the substance of the appended forms, with any additional in- 
quiries he may require for the purpose of eliciting a complete 
and accurate exhibit of the conditions and transactions of the 
companies. The assets and liabilities shall be computed and 
allowed in such statement in accordance with the rules stated 
in section eleven. Such statement shall be subscribed and 
sworn to by the president and secretary, or, in their absence, 
by two of its principal officers. The annual statement of a com- 
pany of a foreign countiy 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. For filing each annual state- 
ment each foreign company shall pay to the commonwealth 
twenty dollars. The transaction of any new business by any 
company or its agents which has failed to file a statement in 
the manner herein provided shall, after notice to that effect from 
the insurance commissioner, be unlawful while such default con- 
tinues." 

R. L., c. 35, § 5, provides: "In construing the provisions of 
this chapter and other statutes, the words 'public records' shall, 
unless a contrary intention clearly appears, mean any written 
or printed book or paper . . . which any officer or employee of 
the commonwealth or of a county, city or town has received or 
is required to receive for filing." 

This legislative definition cannot be held to include within its 



HERBERT PARKER, ATTORNEY-GENERAL. 383 

intention every paper which an officer of the Commonwealth 
receives and files. It must be limited to such as he is required 
by law to so receive for filing. Any other construction must be 
prejudicial to the rights and interests of the Commonwealth or 
its officers, and indeed, of parties or persons making communi- 
cations with such officers. 

The original act for which the provision of the Revised Laws 
is a substitute (St. 1897, c. 439, § 1) called a public record any 
paper which a public officer is required by law to receive, or in 
pursuance of any such requirement has received for filing. The 
compilers of the Revised Laws have not preserved the distinc- 
tion between a paper which an officer is required by law to re- 
ceive and one which he receives for his own convenience. The 
existing qualification for the purpose of definition makes a test 
of the requirement to receive for filing, and any paper so received 
falls within the definition of a public record. 

The question you submit to me is necessarily narrowed, there- 
fore, to this : whether an annual statement of an insurance com- 
pany, filed in the office of the commissioner, under § 96, c. 118 of 
the Revised Laws, is a paper which the Insurance Commissioner 
is required by law to receive for filing within the intention of the 
statute; and I am of the opinion that it is such, and, as such, 
open to the inspection of any citizen^ under the provisions of 
§ 17 of c. 35 of the Revised Laws. 



Wachusett Mountain State Reservation — Specific Ap- 
propriation — Unexpended Balance. 

The purpose of the appropriation under St. 1901, c. 496, was expressly limited to 
the acquisition of land and the construction and repair of the roadway on 
the Wachusett Mountain State reservation, and an unexpended balance 
remaining therefrom may not be expended for the erection of a house for 
the use of the superintendent of such reservation. 

Confirming my oral statement to you, I now have to say, in Totue 

. I'lTi ... Wachusett 

answer to your question submitted July 14, inquiring whether Mountain state 
your commission may lawfully apply any balance that may be commismon. 
left, after purchasing land under authority of c. 496 of the Acts Sep tembe r 22. 



I 



384 OPINIONS OF THE ATTORNEY-GENERAL. 

of 1901, to the construction of a house for the use of the super- 
intendent of the reservation : — 

This commission was estabUshed by c. 378 of the Acts of 1899: 
"Section 4. The commission shall have the same powers to ac- 
quire lands for the Wachusett Mountain state reservation which 
are given to the metropohtan park commission, established by 
chapter four hundred and seven of the acts of the year eight- 
een hundred and ninety-three, and acts in amendment thereof 
or supplementary thereto, and shall be vested with full power 
and authority to care for, protect and maintain the same in 
behalf of the Commonwealth." ''Section 5. The necessary ex- 
pense for care and maintenance of the Wachusett Mountain 
state reservation, in excess of any income that may be derived 
therefrom, shall be annually estimated by the Wachusett Moun- 
tain state reservation commission, and shall be embodied by the 
county commissioners of the county of Worcester in the estimate 
annually submitted by them to the general court, and shall be 
assessed upon said county and collected in the same manner as 
are county taxes." 

Under this act $25,000 were appropriated to carry out its pro- 
visions. Chapter 496 of the Acts of the year 1901 made a further 
appropriation of $25,000, "to be expended by said commission 
for the purpose of acquiring, by purchase or otherwise, such land 
adjoining the present Wachusett Mountain state reservation as 
the commission may deem it necessary or advisable to acquire, 
and for the purpose of putting in safe and suitable condition the 
mountain roadway on the reservation." 

Section 2 gives to the commission the same powers over lands 
acquired under this act as are given them over lands previously 
acquired under c. 378 of the Acts of the year 1899. Section 3 
provides that the necessary expense for the care and mainte- 
nance of the additional land acquired shall be paid by the county 
of Worcester in the manner provided by said statute of 1899. 

The purposes for which the $25,000 appropriated by the stat- 
utes of 1901 may be expended are expressly Umited to the 
acquisition of land and the construction and repair of the road- 
way on the reservation. It would seem, therefore, that the com- 



HERBERT PARKER, ATTORNEY-GENERAL. 385 

mission is not authorized to use any unexpended balance of such 
appropriation for the construction of a house for the use of the 
superintendent, this being an expenditure which cannot properly 
be included under either of the designated purposes for which 
the moneys were appropriated by the State. Whether there may 
be any other source, by appropriation or otherwise, from which 
the funds necessary for the construction of a house for the super- 
intendent may be secured, I express no opinion, since that in- 
quiry is not addressed to me; but I am clearly of the opinion 
that the commission is not authorized to use the unexpended 
balance of the sum appropriated by the act of 1901 for the pur- 
pose suggested, namely, the erection of a house for the superin- 
tendent of the reservation. 



State Highway — Posting of Notices — Public Shade 

Trees. 

The Massachusetts Highway Commission has no authority, under existing laws, 
to affix to pubhc shade trees, located within the limits of a State highway, 
notices warning the public against the injury or defacement of such trees. 

The Massachusetts Highway Commission requests the opinion to the Massa- 

11 1 • • chusetts High- 

01 the Attorney-General as to whether or not that commission waycommis- 

. . sion. 

has the right, under the statutes relating to its work, to post ^'f'^ 



notices upon trees located on State highways, warning the public 
against the injury or defacement of such trees. 

R. L., c. 208, § 104, is general in terms, and applies to shade 
trees upon public ways. I am of opinion that it includes those 
upon State highways, and that the local tree wardens necessarily 
have jurisdiction over them, excepting so far as the statutes 
defining the duties of the Highway Commission are inconsistent 
therewith. The question you. submit, therefore, must be de- 
termined by a consideration of the authority over public shade 
trees given to your commission, if at all, by those statutes which 
define the duties and powers of the Highway Commission. 

Chapter 47, § 21, of the Revised Laws, provides that "no 
shade trees shall be planted or removed or obstruction placed 



October 7. 



386 



OPINIONS OF THE ATTORNEY-GENERAL. 



thereon, without the written permit of the highway commission, 
and then only in accordance with the regulations of said com- 
mission." 

Section 11 of c. 47 authorizes the commission to cause suitable 
trees to be planted, and to keep the highway reasonably clear of 
brush. 

Neither of these statutes can be construed to authorize the 
commission to violate the provisions of c. 208, § 104, of the 
Revised Laws, which relates to affixing notices upon public 
shade trees; and the affixing of such notice, even by your Board, 
does, technically, in my opinion, violate the letter if not the 
spirit of that law. 

I am therefore of the opinion that your Board has no authority 
to affix any notices upon shade trees. It would seem that the 
wiser course would be to secure the formal assent or approval of 
the local tree warden to the posting of such notices as you think 
the protection of the trees require, and with this approval you 
could accomplish the end sought for, and be within the technical 
restrictions of the law. 

I am further of the opinion that the state of the law, which 
seems to prohibit your taking the initiative in the matter, is the 
result of omission rather than design; for I cannot doubt that, 
had the Legislature dealt directly with the question, it would 
have conferred upon your Board this power, which is so plainly 
incident to the complete discharge of your duties with regard to 
the maintenance and preservation of the State highways. 



Fire Marshal's Department — Hearings — Exclusion of 

Public. 

The deputy in charge of the Fire Marshal's department of the District PoUce may 
exclude from a hearing conducted by Wm, for the purpose of ascertaining 
the cause of a fire, all persons other than those summoned to give testimony. 



You require the opinion of the Attorney-General upon the 
question whether the deputy in charge of the Fire Marshal's 



To the Chief 
of the Massa- 
chusetts Dis- 
trict Police. 

octlblr 7. department of the District Police has the power to exclude from 



HERBERT PARKER, ATTORNEY-GENERAL. 387 

a hearing conducted by him any persons, including counsel, while 
an inquest is being held to ascertain the cause of a fire. 

R. L., c. 32, § 3, provides that, for certain purposes, "the fire 
marshal or his deputy may summon and examine on oath any 
person supposed to know or have means of knowing any material 
facts touching the subject of investigation. Such witnesses may 
be kept apart and examined separately and such examination 
shall be reduced to writing, and false swearing therein shall be 
deemed perjury and be punishable as such. Any justice of the 
municipal court of the city of Boston, or of the superior court, 
upon application of the fire marshal or his deputy, may compel 
the attendance of such witnesses and the giving of such testimony 
before the fire marshal or his deputy in the same manner and to 
the same extent as before said courts respectively." 

This provision was not affected by St. 1902, c. 142, which was 
an act transferring the powers and duties of the State Fire 
Marshal to the Massachusetts District Police. The original 
statute establishing the office of State Fire Marshal (St. 1894, 
c. 444), expressly repealed by R. L., c. 227, provided, in § 4, 
that "all investigations held by or under the direction of the 
state fire marshal may in his discretion be private, and persons 
other than those required to be present by the provisions of this 
act may be excluded from the place where such investigation is 
held, and witnesses may be kept separate and apart from each 
other and not allowed to communicate with each other until they 
have been examined." This provision was not re-enacted in 
R. L., c. 32, § 3, above cited; but I am of opinion that, notwith- 
standing its omission, the deputy may still exclude from the 
room persons other than those summoned to give testimony 
during the progress of the inquest, and may examine persons so 
summoned separately, and in the absence of all persons except 
those officers who are themselves conducting the inquiry under 
the law. The omission of the specific provision contained in the 
earlier statute is not, in my opinion, conclusive as to the existing 
law. It may well be that the clause was omitted as being un- 
necessary, in that the tribunal, without express statutory au- 
thority, could have excluded witnesses and persons. 



388 



OPINIONS OF THE ATTORNEY-GENERAL. 



An inquest is not such a proceeding as confers upon parties 
summoned to appear the right to be there represented by coun- 
sel. It is not a trial, but an inquiry. It seems to be well estab- 
lished that in coroners' inquests no person is entitled, by reason 
of being suspected of causing the death, to be present or to have 
counsel, or to cross-examine the witnesses or produce others. 
This proceeding before the Fire Marshal is not essentially differ- 
ent from a coroner's inquest; and, having in view the purpose of 
the inquiry and the general method of procedure followed in 
similar cases, I am of opinion that the fact that the provision 
giving the Fire Marshal discretion to make such hearing private 
was omitted from the Revised Laws is not sufficient ground for 
holding that the Fire Marshal, under existing laws, may not make 
such hearing private. 



Street Railway 



To the Chief 
of the Massa- 
chusetts Dis- 
trict Police. 

l!>0-2 
October 8. 



Employees — Hours of Labor — "Day's 
Work." 



A special contract made by a street railway company and its employees, providing 
for employment and compensation by the hour, and not aggregating the 
service under the designation of a "day's work," as a unit, is not within the 
pro\asions of R. L., c. 106, § 22, setting forth what shall constitute a day's 
work for all conductors, drivers and motormen employed bj' street railway 
companies. 

You submit to me three inquiries: "First. A street railway 
company operating cars in this Commonwealth employ and pay 
their motormen and conductors by the hour. Does such pay- 
ment by the hour invalidate that part of § 22, c. 106, Revised 
Laws, which refers to 'a day's labor'?" The real inquiry is, 
whether a special contract, made by such company and such 
employee, providing for employment and compensation by the 
hour, and not aggregating the service under the designation of a 
"day's work," as a unit, falls within the prohibition of the section 
referred to, and is forbidden because in violation of statutory 
law. 

The question raised is an interesting one, and not entirely free 
from difficulty. But I am clearly of the opinion that an intention, 
if the Legislature entertained such, to restrict or impair the right 



HERBERT PARKER, ATTORNEY-GENERAL. 389 

of a citizen to make his own contract is not to be presumed in the 
absence of express and apt words compelUng that construction. 
I am of opinion that the term "day's work" is used, and so in- 
tended, as a unit representing both the term of labor and the 
right of compensation for such term. This definition does not 
prohibit or preclude the making of a special contract which does 
not adopt such unit as an element of the contract itself, but 
relates merely to specific employment for specific defined periods 
of time not referable to the standard of a day's work. 

It may be that the Legislature had in mind, by reason of its 
designation of conductors, drivers and motormen, not merely the 
rights or the protection of the laborer or employee, but the in- 
terests and safety of the pubhc; and that the enactment is based 
upon the judgment of the Legislature, speaking for the public, 
that employment in the exacting service of operating electric 
cars for more than the number of hours limited within the 
twenty-four would be dangerous to the travelling public, because 
labor protracted beyond such limited hours would tend to im- 
pair, through fatigue, the efficiency of the men to whose care the 
safety of the travelling public was committed. But this possible 
occasion for, or intent of, the legislation, does not warrant a con- 
struction that would require a new significance to be given to 
the words '' day's work" as a term in a contract. See 1 Op. Atty.- 
Gen. 10. 

Your second inquiry is based upon a statement of facts as fol- 
lows: "Conductors and motormen are employed in the case cited 
from 5.30 a.m. to 12 midnight, with a lay-ofT from 10.45 a.m. to 
6.15 P.M., not doing their day's work in twelve consecutive hours." 
Assuming that such schedule is based upon the special contract 
above referred to, for the reasons heretofore given I am required 
to hold that this arrangement is not in violation of the section 
which I have above cited. 

Your third inquiry states that: "A conductor and motorman 
may work from 5.30 a.m. to 11.50 a.m. and from 5.10 p.m. to 
10.30 P.M., making eleven hours and forty minutes of actual 
platform work, and also exce^ing the twelve consecutive hours." 
Here, again, assuming the existence of the special contract, I 



390 OPINIONS OF THE ATTORNEY-GENERAL. 

have to say, for the reasons above set forth, that I am of the 
opinion that this arrangement is permissible, because not in 
conflict with the provisions of the same section. 



To the Super- 
intendent ot 
Stiite Adult 
Poor. 

1902 
October '24. 



Pauper Law — Military Settlement — Desertion. 

A person is not debarred from gaining a settlement under the provisions of R. L., 
c. 80, § 1, cl. 10, by reason of the fact that he absented himself from his 
command, and was thereafter found serving with other troops and was re- 
turned to his original regiment, where he remained until honorably dis- 
charged from the ser\ace of the United States, there being no evidence that 
such person was ever proved guilty of desertion. 

In a communication dated September 22, you desired my 
opinion upon a question with regard to the settlement of a 
pauper under the provisions of R. L., c. 80, § 1, cl. 10. 

It appears that the pauper in question "enlisted in Company 
H, Twenty-ninth Massachusetts Infantry, August 22, 1862, and 
deserted therefrom on or about the fifteenth day of May, 1864. 
Under the name of Arthur Bryant he re-enlisted, August 6, 
1864, in Company C, Second Infantry, and received a bounty 
of $325. On June 28, 1865, he was reclaimed as a deserter and 
returned to the Twenty-ninth Infantry. He was honorably dis- 
charged from the service of the United States on the twenty- 
ninth day of July, 1865." 

It is admitted that the pauper would have gained a settle- 
ment under the provisions of this clause unless prevented there- 
from by the fact that in May, 1864, he absented himself from 
his command, and was thereafter found serving with other 
troops, and was returned to his original regiment, where he 
remained until he received an honorable discharge. 

I am of opinion that he was not so prevented. The statute in 
terms provides that, if other conditions are fulfilled, a pauper 
shall lose the benefit of this clause only when he has been proved 
guilty of desertion; and it is not enough that a person claiming 
settlement by virtue of such provisions was absent from duty 
or was even arrested for desertioif, if there is no evidence that 
such person was convicted or sentenced therefor. Fitchburg v. 



HERBERT PARKER, ATTORNEY-GENERAL. 391 

Lunenburg, 102 Mass. 358, 361. I am aware of no technical sig- 
nification which would render the words "reclaimed as a de- 
serter" equivalent to a statement that the person to whom they 
relate was proved guilty of desertion; and, assuming that they 
are used in their ordinary sense, I am of opinion that there is no 
evidence disclosed by the record, as quoted in your letter, that 
the pauper in question was ever proved guilty of desertion within 
the meaning of the statute, and that such person is therefore 
entitled to claim a settlement under the provisions of R. L., 
c. 80, § 1, cl. 10. 



Civil Service — Re-employment of Employee discharged 
BY Reason of Revision of Charter of City of Boston 
— Specific Exemption. 

St. 1895, c. 449, entitled "An act to revise the charter of the city of Boston," 
which provides in § 27 that officers and employees of any department of the 
city whose positions were abolished or whose tenure of office was affected 
by the act might be appointed to positions in any department of the city 
without civil service examination or enrolment, serves to exempt from the 
operation of the civil service law and rules an employee discharged by reason 
of such revision, although the re-employment of such employee is deferred 
until seven years after his discharge. 

I beg to reply to your communication of October 8, requesting to the civu 
my opinion upon the construction to be given to St. 1895, c. inisBion. 
449, § 27. This statute is entitled "An act to revise the charter No vembe r 3. 
of the city of Boston," creating certain departments of the city 
of Boston, and abolishing or consolidating some of those already 
existing. Section 27 is as follows: "The officers and employees 
of any department who may be removed from the service of the 
city, or whose tenure of office may be affected by the provisions 
of this act or the carrying out thereof, may be appointed to posi- 
tions in any department of said city without civil service exam- 
ination or enrolment." 

It appears that, at the time when the statute took effect, one 
Townsend was, and had been since 1890, employed in the labor 
division of the water department of Boston, in a branch of the 
service which was aboHshed under the provisions of this act. On 



392 OPINIONS OF THE ATTORNEY-GENERAL. 

August 5, 1902, more than seven years after the discharge of Mr. 
Townsend, consequent upon the abohtion of the department in 
which he was employed, the present water commissioner of the 
city of Boston notified tlie Civil Service Commissioners that he 
had appointed Townsend an inspector in the water department, 
a position in the first division of the classified service, without 
any requisition, examination or certification by the Civil Service 
Commissioners, claiming to act therein under authority of § 27, 
above quoted. 

Your letter further states that: ''The specific question upon 
these reported facts is, whether William H. Townsend was legally 
appointed inspector in the water department in August, 1902, 
solely under and by virtue of § 27 of c. 449 of the Acts of 1895, 
without requisition or certification." 

Although the question is not free from doubt, I am of opinion 
that the appointment of Townsend was legal under the provi- 
sions of St. 1895, c. 449, § 27. 

The obvious purpose of § 27 was to provide for the appoint- 
ment in other departments of officers and employees of the city 
of Boston who were thrown out of oflace or employment by the 
abolition or consolidation of the departments with which they 
were connected by the legislation of 1895, without subjecting 
them to the inconvenience and delay of taking a civil service 
examination, and awaiting their turn for appointment upon the 
classified lists of the service. The section does not in terms limit 
the time within which such appointments may be made, and I 
can see no valid ground for reading such a limitation into the act 
by implication. If the statute were construed to require, by 
implication, the immediate appointment to positions in the ser- 
vice of the city of Boston of persons displaced therefrom by St. 
1895, c. 449, even allowing a reasonable time for arranging for 
transfers or re-employment, it would follow that a separate adju- 
dication would be necessary in the case of each appointment to 
determine what should constitute a reasonable time, under all 
the circumstances, with the possible result that an adverse con- 
clusion would deprive the person for whose advantage § 27 was 
enacted of the very benefit which it was intended to confer. 



HERBERT PARKER, ATTORNEY-GENERAL. 393 

I cannot believe that such was the intent of the Legislature, 
and I am therefore constrained to advise you that, in my opin- 
ion, the appointment of Mr. Townsend as inspector in the water 
department of the city of Boston was authorized under the pro- 
visions of St. 1895, c. 449, § 27, although made without requisi- 
tion upon or certification by your commission. Upon this view 
of the question it seems unnecessary to reply to the general in- 
quiries submitted. 

Firemen's Relief Fund — Aid to Widows of Deceased 

Firemen. 

The Board of Commissioners of the Firemen's ReUef Fund is authorized under 
existing statutes to discontinue the allowance of $400 established by such 
Board to widows of deceased firemen, under the provisions of St. 1892, c. 177, 
in view of the payment of $1,000 designated and established for such purpose 
by R. L., c. 32, § 77. 

You desire the opinion of this department upon the question to the Board 

. ^ . of Commis- 

" whether it is obligatoiy to pay to the widows of deceased fire- sionersofthe 

^ '' 1 ./ Firemen s 

men killed in the service anything in addition to the amount now ^^"*ig(^"'^'^- 
granted to minor children." You state that, in accordance with ^^Q ^embe r 7. 
the provisions of § 77 of c. 32 of the Revised Laws, an allowance 
of $2 per week is given to such children under sixteen years of 
age; and that, prior to the enactment of the statute authorizing 
the State Treasurer to pay $1,000 to widows or dependents, 
under § 32 of above cited chapter of the Revised Laws, your 
Board has allowed $400 for death claims, $100 of which was for 
funeral expenses; and you further state that since the later en- 
actment your Board has discontinued the death allowance of $400. 

R, L., c. 32, §§ 71-77, inclusive, contain pro\dsions relating to 
the firemen's relief fund, § 71 providing that the sum of $10,000 
shall be paid by the Treasurer of the Commonwealth to the 
treasurer of the association, from money received from taxes on 
fire insurance companies doing business in this Commonwealth, 
and that such sum shall be known as the firemen's reUef fund 
of Massachusetts. 

Sections 73, 74 and 77 of said chapter provide as follows: 
"Section 73. Such fund shall be used for the relief of firemen, 



394 OPIXIOXS OF THE ATTORNEY-GENERAL. 

whether members of said association or not, who may be injured 
in the performance of their duty at a fire or in going to or re- 
turning from the same, and for the reUef of the widows and chil- 
dren of firemen killed in the performance of such duty, in the 
manner and to the amount determined by a board of five per- 
sons, three of whom, not members of said association, shall be 
appointed by the governor, and two of whom shall be appointed 
by said association." ''Section 74. Officers and members in 
active service in all incorporated protective departments co- 
operating with fire departments, and any person performing the 
duties of a fireman in a town having no organized fire depart- 
ment, shall be entitled to the benefits thereof." "Section 77. 
If a fireman in a regularly organized fire department of a city or 
town, or any officer or member in active service of any incor- 
porated protective department acting in concert with fire depart- 
ments, or a person doing fire duty at the request or by the order 
of the authorities of a town which has no organized fire depart- 
ment, or a person performing the duties of a fireman in such 
town, is killed, or dies within sixty days from injuries received 
while in the performance of his duties, and his death is certified 
by the city or town clerk and the attending physician or medical 
examiner to the treasurer and receiver-general, he shall pay to 
the executor or administrator of such fireman, out of the money 
received from taxes on fire insurance companies doing business 
in this Commonwealth, the sum of one thousand dollars for the 
use equally of his widow and minor children; or if there are 
minor children but no widow, to their use; or if there is no minor 
child, to the use of the widow; and if there is no widow or minor 
child, to the use of the next of kin if dependent on such deceased 
fireman for support. A child of full age dependent upon such 
fireman for support shall be regarded as a minor child." 

The original statute establishing this fund (Acts of 1892, c. 
177) does not materially differ from §§71 to 76 of the Revised 
Laws, c. 32; and the provisions of § 77, originally enacted in St. 
1893, c. 401, were almost identical with those of said § 77. 

It appears, therefore, that the Legislature has contemplated 
two distinct sources of relief for firemen injured, or to the fam- 
ilies of those killed, in the service: (1) from the firemen's relief 



HERBERT PARKER, ATTORNEY-GENERAL. 395 

fund, a sum not exceeding in the aggregate $10,000, annually- 
set apart; (2) in cases where firemen are killed or fatally in- 
jured, from money in the custody of the Treasurer of the Com- 
monwealth; the source of income in both cases being taxation 
levied upon fire insurance companies doing business in this Com- 
monwealth. 

I am of opinion that § 77 does not conclusively limit or restrict 
the action of the Board provided for in § 73, in relation to relief 
for firemen who may be injured in the performance of their duties 
at a fire, or in going to or returning from the same, and for the 
relief of widows and children of firemen killed in the perform- 
ance of such duties, in the manner and to the amount to be deter- 
mined by such Board. It might be held that § 77 acted as a 
repeal of so much of the preceding sections as related to firemen 
killed or fatally injured in the performance of their duties; but 
I do not think this conclusion necessary or inevitable, in view 
of the fact that the preceding sections were amended by St. 
1902, c. 108, which in effect increased the annual appropriation 
for the firemen's relief fund from $10,000 to $12,000, and show- 
ing the apparent intent of the Legislature to continue the relief 
from the fund, as distributed by the Board. 

I therefore conclude that the Board of Commissioners of the 
Firemen's Relief Fund have the same powers and duties which 
they had previous to the enactment of § 77 in its original form; 
and that they may, though they are not required to, vote relief 
to widows and children of firemen if they deem it proper, not- 
withstanding the provisions in § 77 for the payment of the spe- 
cific sum of $1,000 in cases of death or fatal injury. 

Your question is, whether it is obligatory to pay to the widows 
of deceased firemen killed in the service anything in addition to 
the amount granted to the minor children ; that is to say, whether 
you are required to pay, in addition to the sum of $1,000, the 
allowance of $400 made before the enactment of the law provid- 
ing for the payment of $1,000. It does not appear that formerly 
it was obligatory upon the Board to grant any specific amount 
to the widows or children of firemen killed in the service, under 
§ 73, the amount so to be paid being left to the discretion of the 
Board. 



396 



OPINIONS OF THE ATTORNEY-GENERAL. 



I am of opinion that the question of amount of payment, and 
whether there shall be any payment in addition to the sum of 
$1,000, is still discretionary with the Board. In other words, I 
am of opinion that the specific payment of $1,000 upon a death 
claim is not an exclusive substitute for the former allowance of 
$400; but I am led to conclude that your Board may well con- 
sider this specific payment of $1,000 to be an adequate and rea- 
sonable provision, in substitution of the former allowance, and 
the Legislature may have so intended. At all events, it seems 
perfectly clear to me that, in the exercise of a wise discretion, 
and having regard to accomplishing the greatest good from the 
funds under your control, you may well discontinue the former 
allowance of $400, especially as I assume that there are more 
cases calling for relief where there is a disability, than cases aris- 
ing where a fireman had suffered death in the performance of 
his duty. 

I therefore advise you that your Board is authorized, under 
the present statutory provisions, to discontinue the former allow- 
ance of $400, considering the payment of $1,000, specifically 
provided for, as in lieu of and in substitution for the purpose 
then not definitely specified in legislation, but now, by the pro- 
visions of § 77, designated and established. 



Massachusetts Highway Commission — State Highway — 
Liability of Commission for Removal of Poles which 
ARE A Menace to Public. 

The -Massachusetts Highway Commission, in removing poles which were erected 
by a telephone company along a State highway, and have become a menace 
to the public by reason of neglect or decay, after proper notice of that fact, 
and notice that adequate measures must be taken to insure safety of existing 
poles or to substitute new ones, has been given to the company, and a reason- 
able time allowed for proper action by it, would incur no liability to the 
company. 



ciuisetts^ngh- The Massachusetts Highway Commission desires the opinion 

waycommis- ^f ^^^ Attomey-General upon the following question: "Along 

November-, the State highway in the town of Grafton, poles which have in 

the past been used by the Massachusetts Telephone Company 



HERBERT PARKER, ATTORXEY-GENERAL. 397 

are located. These poles are not now in use; many of them are 
in bad condition, and the division engineer reports that in his 
opinion they are a menace to the public travel. The commis- 
sion has endeavored to have the company (wMch we understand 
is now out of existence) remove these poles, and now feel dis- 
posed to take the matter in hand and have the poles cut down 
without further communication with the owners of the poles. 
Before doing this, however, the commission desires advice ... 
on the matter." 

Public-service corporations, which maintain by license pipes, 
wires or other structures in or under a highway, are not in gen- 
eral regarded as having acquired a property right, such as would 
entitle them to recover damages, where the recovery was limited 
to persons whose abutting property is injured by improvement 
of the highway. Jamaica Pond Aqueduct Corporation v. Brook- 
line, 121 Mass. 5. It seems to be the rule that such corporations 
hold their rights and privileges in the street subject to the lia- 
bihty of making changes in the structures which they have 
erected in the way, whenever public necessity or convenience 
require changes of location or grade in the highway. See Matter 
of Deering, 93 N. Y. 361; Natick Gas Light Company v. Natick, 
175 Mass. 246, 252. 

Since the right to maintain telegraph or telephone poles in a 
highway is subject to the liability of removing or altering the 
location of such structures whenever public necessity or conven- 
ience may require it, it would seem that the companies main- 
taining such structures would be also subject to the liability to 
have them removed in cases where they became a public nui- 
sance, because they were a menace to the proper use and enjoy- 
ment of the way. 

Ordinarily, the company would be under a duty to keep such 
structures in safe and proper condition, and the liability for 
damages occasioned by their neglect to do so would be suffi- 
cient safeguard; but where the company is out of existence, and 
has abandoned the poles, I am of opinion that the authorities 
who control the way may properly remove any structures which 
are dangerous to the safety of the public in using the way, with- 



398 



OPINIONS OF THE ATTORNEY-GENERAL. 



out thereby incurring any lia))ility to the company. In this in- 
stance the State Highway Commission is charged with the care 
and maintenance of the State highway, where the poles in ques- 
tion are situated (R. L., c. 47, § 6), and the ultimate liability 
for injuries to persons using the way rests upon the Common- 
wealth (R. L., c. 47, § 13). 

It seems to me, therefore, that, if the poles erected along the 
way have become a menace to the public by reason of decay or 
neglect, and proper notice of that fact, together with notice that, 
unless it shall forthwith take adequate measures to ensure safety 
of existing poles or to substitute new ones, such poles will be 
removed by the commission, has been given to the company, 
and a reasonable time allowed for proper action, the State High- 
way Commission would incur no liability to the company by 
removing them if it neglects to make such removal. 



To the State 
Board of 
Publication. 

l'.)0-2 
November 11. 



State Board of Publication — Documents 
Official Publication. 



Approval of 



The word "documents," as used in St. 1902, c. 438, § 2, extends to and includes 
a compilation by a State officer of laws relating to the department under his 
charge, and also a publication by a State Board, containing certain informa- 
tion useful in the schools of the Commonwealth, and such pubUcations must 
be approved by the State Board of Publication. 

Your letter of October 27 requires my opinion as to the scope 
of the authority of the State Board of Publication, under the 
provisions of St. 1902, c. 438. You state that the question arises 
upon an application of a State officer for authority to print a 
compilation of the laws relating to the department under his 
charge, and upon a request of a State Board for authority to 
publish certain information useful in the schools of the Common- 
wealth; and the specific question submitted by you is, whether 
or not publications of the kind indicated are included within the 
words ''other documents," as used in § 2. 

St. 1902, c. 438, § 1, establishes a State Board of PubUcation. 
Section 2 (the section in question) provides that it shall be the 
duty of such Board '' to examine the annual reports and all spe- 



HERBERT PARKER, ATTORNEY-GENERAL. 399 

cial reports and other documents issued by or on behalf of the 
Commonwealth by any public officer, board or commission, and 
to define the form and extent thereof," with certain exceptions 
thereafter made. Section 3 provides that public officers, boards 
or commissions may, in addition to their annual report, make 
such special reports as shall be deemed by the State Board of 
Publication to be of practical utility. Section 4 provides that 
all boards or commissions, before entering upon the preparation 
of any publication, shall submit to the State Board of Publica- 
tion careful statements of the scope and estimates of the size of 
the intended publication, and such Board is given power to de- 
termine the number of pages, to decide upon the desirability of 
illustration and other details. By § 6 an appeal is permitted 
from the decisions of the Board to the Governor and Council. 

The word "document," as used in this statute, has no tech- 
nical signification. It is employed in its ordinary meaning, and 
denotes a written or printed paper, containing an authoritative 
record or statement, or, more generally, a publication which is 
designed to serve as a source of evidence or information upon a 
particular subject or class of subjects. 

Taken in this sense, I have no hesitation in advising you that 
the word "document," in St. 1902, c. 438, § 2, extends to and 
includes publications of the character referred to in your com- 
munication, and that such publications are subject to the exam- 
ination and approval of your Board. 



Metropolitan Water and Sewerage Board — Construc- 
tion OF Buildings — Permit from Local Authorities. 

The Metropolitan Water and Sewerage Board is not required to obtain a permit 
from the building department of the city of Boston before proceeding with 
the erection of a pumping station, and such department cannot require that 
block stone shall be used in the foundation of such structure. 

Your letter of November 14 required my opinion upon the TotheMetro- 

^ „ - . „ politan Water 

following questions: First, do the building laws of the city of and sewerage 
Boston apply to the constructional work of the Metropolitan jifo^e^,;f4r n. 
Water and Sewerage Board, so to require that block stones 



400 OPINIONS OF TIIP: ATTORNEY-GENERAL. 

should be used in the foundations? Second, is the Board re- 
quired, before proceeding with the construction of a pumping 
station, to obtain a permit from the city department of the city 
of Boston? 

You state that the Metropohtan Water and Sewerage Board 
is now constructing a pumping station for the high-level sewer, 
under the provisions of St. 1899, c. 424. That statute, in § 1, 
authorizes the Board, for the purpose of constructing, main- 
taining and operating a system of sewage disposal for the south 
metropolitan system, "to construct, maintain and operate such 
mains, sewers and other works as may be necessary in substan- 
tial accordance with the plans outlined in a special report of 
said board to the general court of eighteen hundred and ninety- 
nine." The work so authorized is a public work, and the Board 
acts as the agent of the Commonwealth in exercising the author- 
ity of the sovereign over its own property, and its acts are the 
acts of the Commonwealth. In the exercise of the authority 
thus conferred upon it the Board is not to be deemed subject to 
the restrictions imposed by St. 1892, c. 419, and acts in amend- 
ment thereof, regulating the erection of buildings in the city of 
Boston, unless such restrictions are made applicable to its pro- 
ceedings by clear intendment of such statutes. See 1 Op. Atty.- 
Gen. 290; 2 Op. Atty.-Gen. 56. 

It cannot be supposed that the Legislature, in establishing 
these regulations, the purpose of which was to secure the safety 
of citizens who may occupy the buildings, intended to limit or 
restrict the authority of the Commonwealth over its own prop- 
erty. It is to be presumed that the Commonwealth will take 
all necessary precautions to insure the safety of buildings erected 
upon its own property and for its own use, and that the super- 
vision of a local officer over the work of construction is unnec- 
essary. 

I am therefore of the opinion that your Board is not required, 
before proceeding with the construction of the building in ques- 
tion, to obtain a permit from the building department of the city 
of Boston, and that such department cannot require that block 
stone should be used in the foundation of such building. 



HERBERT PARKER, ATTORNEY-GENERAL. 401 

Foreign Corporation — Right to file Papers with Com- 
missioner OF Corporations. 

The Commissioner of Corporations may not receive for filing the papers of a 
foreign corporation engaged in the business of loaning money to its members, 
under a contract with each member that, upon the payment of a weekly 
premium, the company will loan to such member, upon the maturity of liis 
contract, a sum of money for the purchase of a home, such maturity being 
regulated by the numerical order of acceptance of the several contracts, 
for the reason that the transaction of such business by domestic corporations 
is forbidden by the provisions of R. L., c. 73, §§ 7, 8. 

In your letter of December 12 you ask whether the Co-opera- TotheCom. 

TT T* 1 • * • • • c T-> 1 missioner of 

tive Home rurchasmg Association, a corporation of Rochester, corporations 
N. Y., is entitled to be admitted to do business in Massachusetts. De cembe r 29. 

The association enters into contracts with its members, the es- 
sential terms of which are as follows : The member agrees to pay 
to the association 50 cents per week until his contract "matures." 
Falling behind in his payments, he forfeits, if within one year, all 
he has paid; if after one year, 20 per cent, thereof. Upon "ma- 
turity" the association agrees to loan him $1,000 for the purchase 
of a house, taking the title to itself, and allowing him to occupy 
it as a tenant upon payment of $7 a month, until such time as he 
has paid for the property, and an additional sum for the expenses 
of the association; then the title is to be transferred to him. 

The feature wherein the transaction differs materially from 
an ordinary loan upon mortgage security is the postponement 
of the loan in each case until the maturity of the contract. The 
first contract is matured when there is in the treasury of the asso- 
ciation $1,000, accumulated from payments and forfeitures; the 
second contract matures when $1,000 more is accumulated; and 
so on, the association applying its funds to the contracts in the 
numerical order of their acceptance. 

Plainly, the maturity of all except the early contracts will be 
far in the future, if it ever occurs. In case the contract does not 
mature in three years, the holder, if not in arrears, may treat his 
payments as a loan to the association, which agrees to repay it, 
mth 6 per cent, interest, when there is money enough in the 
treasury. This event also depends upon the contract being 
reached in its numerical order. 

Without considering the illegality of such a contract at com- 



402 OriNIOXS OF THE ATTORNEY-GENERAL. 

mon law, I am of opinion that it is prohibited by R. L., c. 73, 
§§ 7 and 8: "Section 7. No person or corporation shall issue, 
negotiate or sell any bonds, certificates or obligations of any 
kind, which are by the terms thereof to be redeemed in numerical 
order or in any arbitrary order of precedence without reference 
to the amount previously paid thereon by the holder thereof, 
whether they are sold on the instalment plan or otherwise." 
"Section 8. A person or corporation violating the provisions of 
the preceding section shall forfeit fifty dollars for each offence. 
Such violation by a domestic corporation shall operate as a 
forfeiture of its franchise ; and such violation by a foreign corpo- 
ration, association or organization shall operate as a discontinu- 
ance of its right to do business in this commonwealth, and the 
supreme judicial court or the superior court, upon the applica- 
tion of the commissioner of corporations, shall have jurisdic- 
tion in equity to enjoin such foreign corporation, association or 
organization from further continuing its business in this com- 
monwealth." If the obligation fails to mature in three years, 
it is to be redeemed in its numerical order by repayment of the 
sums paid in, with 6 per cent, interest. 

It is therefore your duty to refuse to allow the Co-operative 
Home Purchasing Association to file in your department the 
papers required by R. L., c. 126, §§ 4 to 7 inclusive. 



Taxation — Real Estate Trust — Valuation of Corpo- 
rate Franchise — Deduction of Stock and Bonds. 

Shares of stock in a real estate trust, so called, wliich represent the rights of the 
beneficiaries in real estate, under a declaration of trust providing that no 
right, title or interest in such real estate shall vest in the shareholders, are 
personal property, and, as such, are not to be deducted by the Commissioner 
of Corporations in ascertaining (under the provisions of R. L., c. 14, § 38) 
the valuation of the corporate franchise of a corporation owning such shares, 
for the purpose of taxation. 

With the bonds of such trust, however, wliich are secured by real estate owned by 
the trustees, it is otherwise, and the value of such bonds may be deducted 
from the aggregate value of the shares of the corporation in determining 
the taxable value of the francliise. 

commilsloncr. I" your letter of November 3 you ask whether, in ascertaining 
January c. tlic valuc of a corporatc franchise for the purposes of taxation, 



HERBERT PARKER, ATTORNEY-GENERAL. 403 

you are required, under R. L., c. 14, § 38, to deduct as "real 
estate subject to local taxation" stocks and bonds of certain 
real estate trusts, so called. 

The stocks are shares representing the rights of beneficiaries 
in real estate, under certain declarations of trust which provide 
that no title, interest or estate in any land is to vest in the share- 
holders, and that the shares are to be and remain as to title per- 
sonal property only. The bonds are mortgage bonds, secured 
by real estate owned by such trustees. The trustees have paid 
local taxes on all the real estate, assessed by the local authorities 
as of May 1, 1902. 

As to both stocks and bonds, it is obvious that, unless they are 
deducted from the value of the corporate franchise, double taxa- 
tion will result. Though not taxable to individuals owning them, 
if they are allowed to enter into the estimated market value of 
the capital stock of the corporation which owns them, they will 
be taxed indirectly, while the real estate which makes them 
valuable has already paid a tax. If the spirit of forbidding 
double taxation were perfectly carried out in the law, these in- 
terests would be deducted, but there are numerous instances 
where the spirit has failed. The Legislature has not provided 
that a corporation may deduct from the value of its franchise 
all property elsewhere taxed, or upon which an unincorporated 
owner would not be required to pay a tax. For example, if a 
corporation owns stock in another domestic corporation, this 
may not be deducted from the value of the former corporation, 
though to an individual owner it would not be taxable. The 
Legislature has provided merely for deduction of real estate and 
machinery upon which a local tax has been paid. Therefore, 
unless these stocks and bonds are real estate, you are not author- 
ized to deduct them. 

First, as to the shares of stock. It may be suggested that, 
since the trust is not a corporation, the shareholders have the 
whole equitable estate in the land, subject to certain restrictions 
contained in the trust agreement, in spite of the provision that 
their interest shall be only personal, this provision being in- 
effectual until the property is actually converted into person- 
alty. Such a contention was made in Howe v. Morse, 174 Mass. 



404 OPINIONS OF THE ATTORNEY-GENERAL. 

491, but the court found it unnecessary to pass upon it. If this 
is sound, then it may be that the corporation owning an equitable 
interest in real estate, subject to local taxation to the trustees, 
should deduct its value. 

But, while there is no authority upon either side of the ques- 
tion, in my opinion the interest of a shareholder is personal 
property. One hundred years ago the question was much dis- 
cussed whether stock in corporations, whose property consisted 
exclusively of real estate, was not an interest in realty. While a 
few States held it to be realty until the doctrine was corrected by 
legislation (see Welles v. Cowles, 2 Conn. 567 ; Copeland v. Cope- 
land, 7 Bush, 349), the English and most of the American de- 
cisions settled down upon the other view, only one of them 
{Johns V. Johns, 1 Ohio State, 351) basing it solely upon the 
ground which is the one point of difference between that case 
and the present, — that the interested parties were incorporated. 
See Russell v. Temple, 3 Dane Abr. 108 (Mass. 1798) ; Bligh v. 
Brent, 2 Y. & C. 268 (1837); Arnold v. Ruggles, 1 R. I. 165 
(1837). See In Re Jones' Estate, 172 N. Y. 575. 

These leading decisions mention as one ground that the real 
estate is owned not by the members, but by the corporation, 
which is a distinct entity ; and base their conclusion also upon the 
ground, which applies as well to the present situation, that 
the test must be not the nature of the property out of which 
the dividends come, but the nature of the rights which ownership 
of the stock carries. These rights are strictly personal in both 
cases. The fact that the property is owned by a real instead of an 
artificial person is not, in my judgment, an essential distinction. 
I advise you, therefore, that you have no authority to deduct 
these shares owned by the corporation from the value of the 
corporate franchise. 

The bonds, on the other hand, present a different question. 
The interest of a mortgagee of real estate under a duly recorded 
mortgage is declared by statute to be real estate for the purposes 
of taxation. If a corporation is mortgagee, it is held that such 
interest must be deducted from the market value of its shares in 
taxing the corporation. Firemen's Insurance Co. v. Common- 



HERBERT PARKER, ATTORNEY-GENERAL. 405 

wealth, 137 Mass. 80. From that decision it is a step forward to 
hold that the interest of a holder of bonds secured by a trust 
mortgage of real estate is real estate; but this step has been 
taken by a divided court in construing the statute exempting 
"any loan on mortgage of real estate taxable as real estate" 
(R. L., c. 12, § 4, cl. 2) from taxation as personal property. 
Knight v. Boston, 159 Mass. 551. In view of these decisions, 
it is my opinion that you should deduct the value of these bonds 
from the aggregate value of the shares of the corporation. 



House of Representatives — Order requiring Institution 
OF Specific Proceedings — Attorney-General. 

The House of Representatives has no authority to require that the Attorney- 
General forthwith appear before some justice of the Supreme Judicial Court 
for the purpose of obtaining from the court an order restraining the stock- 
holders of a gas company from taking action to increase its capital stock, 
or to require him to institute specific proceedings of any character. 

In response to the order issued by the Honorable House of of'Repres'Im ui- 
Representatives, purporting to require the Attorney-General ^'^*^f903 
forthwith to appear before some justice of the Supreme Judicial ' ^"^^ 
Court for an order restraining the Massachusetts Gas Companies 
and its shareholders from increasing its shares of stock, and for 
such further or other relief in the premises as to said court shall 
seem meet, which order is in the form following : — 

Ordered, That the Attorney-General forthwith appear before some 
justice of the Supreme Judicial Court for an order restraining such asso- 
ciation, the Massachusetts Gas Companies, or its shareholders, from 
taking any such action as is contemplated in the above notice to share- 
holders, and for such further or other relief in the premises as to said 
court shall seem meet. And the clerk of this House is hereby directed 
to immediately notify the Attorney-General's office of the passage of this 
order, — 

I submit, for the consideration of that honorable body, the 
following suggestions : — 

The Honorable House of Representatives is doubtless aware 
that it has no authority to fix a limit of time within which the 
Attorney-General shall discharge the duties of his office. 



406 0P1NT()XS OF THE ATTORNEY-GENERAL. 

The House of Representatives has no power to compel action 
by the Attorney-General, as prescribed by the terms of the order. 
Chapter 7 of the Revised Laws defines the duties of the Attorney- 
General, providing that he shall, when required by either branch 
of the General Court, attend during its sessions and give his aid 
and advice in the arrangement and preparation of legislative 
documents and business, and shall give his opinion upon ques- 
tions of law submitted to him by the Governor and Council or by 
either branch of the General Court; and it is further pro\'ided 
that he shall appear for the Commonwealth in all suits and other 
civil proceedings in which the Commonwealth is a party or in- 
terested, or in which the official acts and doings of its officers are 
called in question, in all courts of the Commonwealth, and in 
such suits and proceedings before any other tribunal, when re- 
quested by the Governor or by the General Court or by either 
branch thereof. 

No authority is conferred upon the General Court, or either of 
its branches, to order the Attorney-General to institute specific 
proceedings of any character. Should the Legislature pass a 
statute absolutely requiring the Attorney-General to institute a 
definite action, such statute would be unconstitutional, as in con- 
flict with Article XXX. of the Declaration of Rights of the 
Massachusetts Constitution, which provides that in the govern- 
ment of this Commonwealth the legislative department shall 
never exercise the executive and judicial powers, or either of 
them. 

The deference that I owe to the source of the order addressed 
to me leads me to state more fully the considerations upon 
which my conclusions are based. 

The form and tenor of the communication from the House of 
Representatives compels me to remind that honorable body that 
its constitutional powers and functions are legislative, not ex- 
ecutive, and that the hmitations of these respective jurisdictions 
must be inviolately preserved and maintained. The law of this 
Commonwealth has imposed upon the Attorney-General respon- 
sible executive duty and authority, which he can delegate to no 
other officer or department of the government; and, on the other 



HERBERT PARKER, ATTORNEY-GENERAL. 407 

hand, no other department estabhshed by our constitutional law 
has power to assume the exercise of functions committed by the 
people to his charge, or power to direct or command him to act 
upon the dictation of any other influence than that of his own 
conception of his duty under the law, to which alone he owes 
official obedience. He can evade no responsibility in the dis- 
charge of his duties by yielding to the assumed authority of any 
other officer or servant of the State. He can find justification 
for his conduct in office by no plea that he has surrendered his 
discretion or authority to any other official power whatsoever. 
That the people may know upon whom to charge a failure in the 
performance of public duty, each officer must stand responsible 
for his every act within the field of the jurisdiction committed to 
his charge and care. 

The communication of the Honorable House of Representatives 
fails to recognize the elemental principles of the constitutional 
law of the Commonwealth. Its action, as indicated by this com- 
munication, is based upon no lawful authority vested in it. I 
am, therefore, compelled to respectfully advise the Honorable ' 
House of Representatives that I cannot act in obedience to the 
specific command transmitted to me. 

It would seem, from the communication addressed to me, that 
the Honorable House of Representatives is of opinion that facts 
and conditions exist requiring immediate action in behalf of the 
Commonwealth. If this be true, I regret that the House of Rep- 
resentatives has not followed the course prescribed by the law in 
such event, and communicated to me the evidence of such facts 
and conditions, in order that I might, within the field of my 
official duty, have given that consideration to the issues which 
their apparent importance might require, and have advised the 
Honorable House of Representatives, if it so required, in ac- 
cordance with my duty in that regard, whether any or what 
action ought to have been, or ought now to be, taken in the 
premises, or to have taken such action upon my own initiative 
as investigation of the facts and evidence submitted to me might 
have warranted or justified. 



408 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Super- 
intendent of 
State Adult 
Poor. 

1903 
January 13. 



Soldiers' Aid — Widow or Dependent Relative of Veteran 
— Effect of Criminal oh Wilful Misconduct. 

The provision in R. L., c. 79, § 18, excepting from the benefits of "soldiers' aid" 
a person, otherwise eligible, who has become poor and unable to support 
himself by reason of liis own criminal or wilful misconduct, is limited in 
application to veterans; and, in the case of the widow or other dependent 
relative of a soldier who was himself entitled to receive such aid, the fact that 
poverty was the result of insanity, caused by intemperance, is not material. 

You require my opinion upon the question of the right of an 
inmate of the Worcester Insane Hospital to receive "soldiers' 
aid," under the provisions of R. L., c. 79, § 18. 

It appears that the inmate hi question is the widow of a soldier 
who had a settlement in the city of Boston, and who served in the 
army of the United States during the war of the rebellion and 
received an honorable discharge from all enlistments therein ; and 
it is alleged that she is in need of the assistance afforded by the 
statute by reason of insanity, caused by intemperance. 

R. L., c. 79, § 18, provides in part that "if a person who served 
in the army or navy of the United States in the war of the rebel- 
lion and received an honorable discharge from all enlistments 
therein, and who has a legal settlement in a city or town in the 
commonwealth, becomes, from any cause except his own crimi- 
nal or wilful misconduct, poor and entirely or partially unable to 
provide maintenance for himself, his wife and minor children 
under the age of sixteen years, or for a dependent father or 
mother; or if such person dies leaving a widow or such minor 
children or a dependent father or mother without proper means 
of support, he or they shall receive such support as may be neces- 
sary by the city .or town in which they or either of them have a 
legal settlement." 

The Commissioner of Soldiers' Relief for the city of Boston has 
raised the question whether the exclusion from the benefits of the 
statute of a soldier who has become poor and entirely or partially 
unable to provide maintenance for himself and his family, 
through his own criminal or wilful misconduct, may be extended 
to the following provision with regard to the widow or minor 
children or the other dependent relatives named of a soldier who 
was himself within the qualifications of the statute. 



HERBERT PARKER, ATTORNEY-GENERAL. 409 

It is admitted that there was no express exception in the case 
of the widow or other dependents named in the statute ; but it is 
contended that it is the spirit of the law that its benefits should 
not be extended to persons who become poor by reason of their 
own criminal or wilful misconduct. 

While there is much force in this contention, I am of opinion 
that the exception referred to in the case of the soldier himself 
should not be construed to include his widow, minor children or 
dependent father or mother. The purpose of the act was un- 
doubtedly to insure the proper maintenance of worthy veterans 
and their families, and the aid to be furnished to the widow or 
other relatives of the soldier himself was in the nature of a reward 
to him, and an assurance that those dependent upon him should 
be provided for; and this ought not to be held contingent upon 
their conduct, especially since it might be a perplexing and 
difficult problem to determine whether the insanity was due 
wholly to wilful fault, or to misfortune. 

It seems more consistent with the true intent of the act to hold 
that the provision excepting a soldier reduced to poverty by his 
own wilful or criminal conduct from the benefit of the statute 
does not extend to the widow or other dependent relatives of a 
worthy veteran; and that the alleged fact that the person in 
question became insane through intemperance is not material. 



Civil Service — Chief Superintendent — Officers ap- 
pointed BY the Board of Public Works in the City 

OF WOBURN. 

Under the provisions of St. 1897, c. 172, amending the charter of the city of 
Woburn, and creating in section 32 a board of public works, whose affairs 
are divided into four administrative bureaus, namely, sewers, highways, 
water and water supply, and public buildings and grounds, officers ap- 
pointed by such board and designated respectively superintendent of sewers, 
superintendent of highways, superintendent of water, and superintendent of 
public buildings and grounds, are not "chief superintendents of depart- 
ments," within the exemption in Rule VII., Schedule B, Class 12, of the 
civil service rules, and must be appointed in accordance with such rules. 

You have requested my opinion upon the following facts. TotheCivii 
St. 1897, c. 172, amended the city charter of Woburn, and mission. 

' ' -^ , ' 1903 

authorized, in § 32, the establishment of a board of public works, January 28. 



410 OPINIONS OF THE ATTORNEY-GENERAL. 

to consist of the mayor and four other persons. Section 34 pro- 
vides that the four members in addition and the mayor shall be 
elected one in each year, to serve for a term of four years. Sec- 
tion 35 provides as follows : — 

The affairs of said department of public works shall be di\ided by the 
board between four administrative bureaus, as follows : — 

First. — A bureau of sewers, the chief officer of which shall be known 
as the commissioner of sewers. 

Second. — A bureau of highways, the chief officer of which shall be 
known as the commissioner of streets. 

Third. — A bureau of water and water supply, the chief officer of 
which shall be known as the commissioner of water and water supply. 

Fourth. — A bureau of public buildings and grounds, the chief officer 
of which shall be known as the commissioner of pubhc buildings and 
grounds. 

The said four commissioners shall receive an annual salary of two 
hundred and fifty dollars each. The duties of the several bureaus shall 
be such as may be referred thereto from time to time by the board of 
pubUc works; the mayor shall designate each member of said board as 
commissioner of one of said bureaus, who shall discharge the duties 
thereof under the direction of the board and the supervision of the mayor. 
In case of a vacancy in the office of the chief of any of said bureaus, or 
of the absence or disability of any of them, the mayor may assign the 
duties of such bureau during such vacancy, absence or disability, to 
any other member of the board, who shall thereupon assume the duties 
thereof. The mayor may transfer any member of the board from the 
administration of the duties of one bureau to those of another. 

Under the provisions of this section, the mayor of Woburn has 
designated the four members of the board of public works, 
elected as commissioners of sewers, streets, water and water 
supply, and public buildings and grounds, respectively. 

It is further stated that the board of public works of Woburn, 
without requisition upon or certification from the Civil Service 
Commissioners, has appointed the following officers: the super- 
intendent of sewers, at a salary of $600; the superintendent of 
highways, at a salary of $1,000; the superintendent of water, at 
a salary of $1,100; and a superintendent of public buildings and 
grounds, whose salary is not stated; and it is contended that 
these officers are exempt from the operation of the civil service 



HERBERT PARKER, ATTORNEY-GENERAL. 411 

rules, as being chief superintendents, within the exception pro- 
vided by Civil Service Rule VII., Schedule B, Class 11, which is 
as follows : — 

Superintendents, assistant superintendents, deputies and persons, other 
than the chief superintendents of departments, performing any of the 
duties of a superintendent in the service of any city of the Common- 
weahh. 

It is now well established that a chief superintendent must be 
an officer acting under a distinct department of the city govern- 
ment, who is authorized to act for and represent that department 
throughout the whole of its jurisdiction. See Attorney-General 
V. Trehy, 178 Mass. 186; 2 Op. Atty.-Gen. 280, 344. 

I am of opinion that, under this construction, no one of the 
specified appointments of officers by the board of public works is 
exempt from the operation of the civil service rules, and that such 
appointments were in violation of the provisions of law relating 
to the civil service and the rules established thereunder by your 
commission. 



Militia — Governor — Transfer of Company of Militia 
FROM One City or Town to Another. 

The Governor, as Commander-in-Chief of the volunteer miUtia of the Common- 
wealth, has no authority to order the transfer of a companj^ of militia from 
the city or town where such company is lawfully established and located 
to some other city or town. 

Your Excellency has required my opinion whether the Gov- Tothe 

. . ^ I ^ Governor. 

ernor, as Commander-in-Chief of the mihtia, has authority to J,g^JJ?^^^ jg 

transfer a company of the militia established and lawfully located 

iu' one city or town to another. 

The general authority of the Commander-in-Chief is to be 
found in R, L., c. 16, §§24 and 25, which are as follows: — 

Section 24. The commander-in-chief shall arrange the infantry, 
artillery and cavalry into regiments, battahons, and, when necessary, 
into unattached companies, and into not more than two brigades. There 



412 OPINIONS OF THE ATTORNEY-GENERAL. 

shall not be more than six regiments of infantry, one regiment or more 
of which, at the discretion of the governor, may be changed to heavy 
artillery and uniformed and instructed as such. 

Section 25. Petitions for organizing volunteer companies, accom- 
panied by the approval of the mayor and aldermen of cities or the se- 
lectmen of towns in which a majority of the petitioners reside, may be 
granted by the commander-in-chief, due regard being had to a proper 
distribution of the force throughout the commonwealth; but no new 
company shall be organized except as provided in section eleven, if 
thereby the whole number of companies shall exceed the number es- 
tablished in this chapter. 

Section 33 provides that the Commander-in-Chief may disband 
any company of the volunteer miUtia falling below the required 
standard of efficiency. 

Assuming the company now under consideration to have been 
regularly organized and established, upon petitions of persons as 
prescribed in § 25 above quoted, in the city or town within which 
it is now quartered, and that it is maintained in accordance with 
the required standards of efficiency, I am of opinion that the 
Commander-in-Chief is not authorized to transfer, by his own 
order, such company to another city or town. It is evident, I 
think, that the militia law of this Commonwealth looks to an 
organization local in its nature, the company units of which are 
established at the desire of the inhabitants of any city or town, 
and are to consist in large part of such inhabitants. In other 
words, it appears to be the intention of the law that the company 
shall be composed of persons resident in or near the town where 
it is quartered, such conditions manifestly tending to maintain 
interest and activity in the service. In a lesser degree the same 
idea prevails with regard to the larger divisions of the service. 
To transfer a company from one city or town to another, by the 
order of the Commander-in-Chief, would be contrary to the evi- 
dent theory of the militia law, because necessarily it would 
remove the place of service of the members so transferred to a 
locality more or less distant from their homes, and thereby either 
interfere with the efficiency of the company or at least add 
greatly to the burden of the service. Such transfer by the Com- 
mander-in-Chief, if he had the power, might be without a petition 



HERBERT PARKER, ATTORNEY-GENERAL. 413 

by the inhabitants of the city or town to which the company 
should be transferred, since petitions for the location of militia 
companies are required only for the organization of new com- 
panies. 

Such transfers by the Commander-in-Chief might further result 
in the imposition of serious burdens upon the city or town to 
which such transfer was made, and this even against the wishes of 
the citizens thereof, the law requiring the city or town in which a 
company is located to maintain, at its own expense, a suitable 
armory and suitable places for parade, drill and target practice. 
See R. L., c. 16, § 105. 

The question Your Excellency submits to me is not entirely 
free from difficulty. A strained construction of the sections of 
the statute above referred to might confer this power of transfer 
or removal upon the Commander-in-Chief; but I am of opinion 
that the law should be construed strictly, and that, in the absence 
of direct and specific authority conferred upon the Commander- 
in-Chief, it is more consonant with the spirit and intent of the 
law as it exists to hold that such transfer, as suggested by Your 
Excellency's inquiry, does not lie within the express power of 
the Commander-in-Chief. 

The provisions of § 115 of said chapter, relating to the location 
of an armory by a majority of the members of a company formed 
from different places, which location shall be subject to the ap- 
proval of the Adjutant-General, further confirm this view, as 
fixing the location of militia companies upon considerations other 
than those of the order of the Commander-in-Chief. 

I am, therefore, of opinion that authority to take such action is 
not vested in the Commander-in-Chief. 



414 OPINIONS OF THE ATTORNEY-GENERAL. 



Extradition — Fugitive from Justice — Sworx Evidence 
— Certification of Officer taking Oath. 

Under the provisions of R. L., c. 217, § 11, requiring that, in the case of a demand 
upon the Executive of tliis Commonwealth for the surrender of a person 
charged with crime committed within the limits of the demanding State, 
such demapd shall be accompanied by sworn e^'idence that the person 
charged is a fugitive from justice, an allegation in the petition of the prin- 
cipal complaining witness to the Executive issuing the demand, stating that 
the person sought to be extradited is a fugitive from justice, and sworn to 

before one signing himself, "J R , pro clerk of the court of quarter 

sessions," such statement not being authenticated by the Executive, and 

there being no evidence that R was authorized to administer oaths, 

is not "sworn evidence," within the meaning of the statute, and the 
Governor may not lawfully comply with such demand. 

To tiie I have the honor to report that, in the matter of the requisition 

Governor. ^ ' ^ 

Feijrmi^r-2o ^^ ^^^ ExBCutive of the Comiiion Wealth of Pennsylvania upon 
Your Excellency for the arrest and extradition of Thomas H. 
Cummings, an alleged fugitive from justice, charged iii Pennsyl- 
vania with the crime of false pretences, counsel representing 
both the alleged fugitive and the agent of the State of Pennsyl- 
vania have been given full opportunity to be heard; and after 
such hearing, and after careful consideration of the papers ac- 
companying the requisition, I am constrained to advise Your 
Excellency that you may not legally comply with the demand 
of the Governor of Pennsylvania. 

Revised Statutes of the United States, § 5278, makes it the 
duty of the Executive of a State upon whom a demand is made 
for the extradition of an alleged fugitive from justice to surrender 
such fugitive, provided it appears that the papers accompanying 
the requisition contain (1) a demand of the Executive of the 
State from which the fugitive has fled; (2) a copy of an indict- 
ment found or an affidavit made before a magistrate, charging 
the fugitive with having committed the crime ; and (3) the cer- 
tification of such indictment or complaint by the Executive. 

The constitutional provision for extradition, however, relates 
only to persons who are fugitives from justice; and the duty to 
surrender a person demanded does not arise unless it appears 
that he is, as a matter of fact, a fugitive from justice. Upon this 
point the decision in general rests with the Executive of the 



\ 



HERBERT PARKER, ATTORNEY-GENERAL. 41i 

State upon which the demand is made, as a question of fact, to 
be decided upon such evidence as he may deem satisfactory. See 
Roberts v. RUey, 116 U. S. 80; Ex parte Reggel, 114 U. S. 642. 
No method of proof of this fact is prescribed either by the Con- 
stitution or by the Statutes of the United States; but in this 
Commonwealth the Legislature has provided that this material 
fact shall be established by sworn evidence that the person is a 
fugitive from justice (R. L., c. 217, § 11), and the Governor of 
this Commonwealth is not authorized to issue his warrant unless 
such evidence is submitted to him. 

In the application of the Governor of Pennsylvania for the sur- 
render of Thomas H. Cummings, the only allegation that the 
person demanded is, in fact, a fugitive from justice, is contained 
in the petition of one Florence S. Zimmerman to the Governor, 
asking that a requisition be issued. That petition sets forth that 
Thomas H. Cummings was in the county of Pliiladelphia and 
State of Pennsylvania at the time of the commission of the 
offence charged; that before arrest could be made he fled from 
the State of Pennsylvania; that he is now in the county of 
SufTolk in this Commonwealth, and is a fugitive from the justice 
of Pennsylvania. This statement purports to be sworn to before 
John L. Reiser, "Pro clerk of the Court of Quarter Sessions," 
and the seal of that court is annexed to the affidavit. There is 
no other evidence in the papers that said Cummings is in fact a 
fugitive from justice, except such inferences as may be drawn 
from the certification by the district attorney of Philadelphia 
County, which is substantially in accordance with the rules for 
interstate rendition. This certification is not sworn to, and alle- 
gations contained in it, so far as they may be construed to be 
allegations that Cummings is a fugitive from justice, are conclu- 
sions of law, and not sworn evidence of fact, as required by the 
laws of this Commonwealth. 

There appears to be no evidence disclosed by the record that 
the person before whom Florence S. Zimmerman made oath to 
the truth of the statements contained in her petition was, by 
reason of any official position, authorized to administer oaths. 
A defect in setting forth the authority of the person before whom 



416 OPINIONS OF THE ATTORNEY-GENERAL. 

such oath is taken would ordinarily be cured by the certification 
of the Executive of the demanding State, which is generally com- 
prehensive enough to include not only a copy of the indictment 
or complaint, as required by the United States Statute, but also 
the papers accompanying it. But in this instance it is only the 
copy of the indictment which the Governor of Pennsylvania cer- 
tifies to be authentic and duly authenticated in accordance with 
the laws of Pennsylvania. This being so, and there being no 
evidence upon the record that John L. Reiser was authorized 
under the laws of Pennsylvania to administer oaths, I am of 
opinion that this paper is not sworn evidence, within the meaning 
of R. L., c. 217, § 11, and that, in the absence of such sworn 
evidence. Your Excellency carmot lawfully comply with the 
demand of the Executive of Pennsylvania for the extradition of 
the said Thomas H. Cummings. 



City or Town — Grant of Franchise for Use of Streets 
— Compensation. 

In the absence of specific legislative authority therefor, a city or town has no 
power to demand compensation for the grant of a franchise for a special 
use or easement in the streets or ways of such city or town. 

Governor Your ExccUency requires my opinion upon the question 

March 4. ' 'whether or not towns have any rights in highways, for which 

they can charge for the use thereof; that is, whether or not they 
could give any one special rights, for compensation, in a high- 
way." I conceive the purport of Your Excellency's inquiry to 
be whether a municipality has any right to demand and receive 
compensation for a franchise granted by such municipality for 
a special use or easement in the streets or ways of the same. 

I am of opinion that no such right exists at common law, and 
can obtain, if at all, only where it has been specially delegated 
to a town or city by authority and grant of the Legislature. It 
is clear that public streets and ways, as such, belong to the whole 
public, represented by the Commonwealth. If local boards of 
aldermen or selectmen should assume to make grants of special 
rights to the use of such streets and ways, they could do so only 
as agents of the general public, since no such power could be 



HERBERT PARKER, ATTORNEY-GENERAL. 417 

delegated to them by the municipahty, for the municipahty 
would have neither jurisdiction nor authority in the premises. 

Authority to impose restrictions or obligations upon corpora- 
tions or individuals to which franchises in public ways were to 
be granted must, as I have suggested, be conferred by special 
statutory authority. No such general authority now exists by 
virtue of which a municipality can make such grants for com- 
pensation to it, or impose specific local restrictions or obligations 
upon such use. 

It has heretofore been held, in an opinion by one of my prede- 
cessors, dated May 25, 1900, that local municipal authorities 
"had no right to bargain and sell street railway franchises, nor 
to make terms with street railway companies which should 
accrue to the financial benefit of the cities and towns in which 
the locations were given. They could not make a binding con- 
tract either for a time limit of the franchise or for the payment of 
any revenue, directly or indirectly, to the Commonwealth or to 
a city or town." 2 Op. Atty.-Gen. 182. 

I do not cite judicial authority expressed in a series of opinions 
of courts of last appeal in support of the views I express, doubt- 
ing whether Your Excellency will deem it necessary to examine 
them. 

For the reasons I have briefly stated, I have the honor to 
advise Your Excellency that in my opinion your inquiry should 
be answered in the negative. 



Soldiers' Aid — Criminal or Wilful Misconduct of Vet- 
eran — Wife or Widow and Dependent Relatives. 

R. L., c. 79, § 18, is not applicable to a soldier who, by reason of liis own criminal 
or wilful misconduct, has become poor and wholly or partially unable to 
support lumself ; and, although such soldier may in other respects be eligible 
under the statute, neither he nor his family are entitled to the aid therein 
provided. 

You ask my opinion upon the construction of the first eleven to the com. 

... „ ,, missioner of 

lines of R. L., c. 79, § 18, the specific questions being as follows: — pensions *°"* 

"1. If a soldier debarred by criminal or wilful misconduct jy^j^^^chis 
from the receipt of soldiers' relief is living with his family, which 



418 OPINIONS OF THE ATTORNEY-GENERAL. 

is otherwise eligible, will his un worthiness bar it also from relief 
in which he does not share? 

"2. If a soldier debarred as above is living away from his 
family, and not contributing to its support, will the family also 
be debarred?" 

The first eleven lines of the section above referred to are as 
follows : — 

If a person who served in the army or navy of the United States in 
the war of the rebelHon and received an honorable discharge from all 
enlistments tlierein, and who has a legal settlement in a city or town in 
the commonwealth, becomes, from any cause except his own criminal 
or wilful misconduct, poor and entirely or partially unable to provide 
maintenance for himself, his wife and minor children under the age of 
sixteen years, or for a dependent father or mother; or if such person 
dies leaving a widow or such minor children or a dependent father or 
mother without proper means of support, he or they shall receive such 
support as may be necessary by the city or town in which they or either 
of them have a legal settlement. 

It is clearly the intention of the section above quoted that the 
aid to be furnished to a person who has served in the army or 
navy of the United States in the war of the rebellion and has 
received an honorable discharge from all enlistments therein 
shall be conditioned upon his worthiness to receive it; and, if he 
has become poor and entirely or partially unable to provide for 
himself and his family by reason of his own criminal or wilful 
misconduct, he fails to bring himself within its terms, and is ex- 
cluded from all the benefits conferred by it. The right of the 
family of a soldier or sailor in the war of the rebellion to receive 
aid under this section exists only when such soldier or sailor is 
in all respects eligible to receive such aid; and it must follow 
that where a person, otherwise eligible, is debarred by his own 
criminal or wilful misconduct from the relief provided, his fam- 
ily is also debarred from such relief, and this is true whether the 
person so debarred resides with his family or apart from it. 

I am therefore of the opinion that both the questions sub- 
mitted must be answered in the affirmative. 



I 



HERBERT PARKER, ATTORNEY-GENERAL. 419 



Constitutional Law — Legislature — Insurance — Cities 
AND Towns as Insurers against Fire. 

The Legislature may not constitutionally authorize cities and towns to establish 
fire insurance departments, and to act as insurers against fire of all insurable 
property within their limits. It follows, therefore, that House Bill No. 386, 
entitled "An Act to authorize cities to insure property against loss by fire," 
would, if enacted, be unconstitutional and void. 

I have the honor to acknowledge receipt of copy of an order To the House 

of Representa- 

of the Legislature under date of March 23, 1903, of the tenor tives. 

=" ' ' 1903 

following:— M arch -2 7. 

That the Attorney-General be requested to inform the General Court 
whether, in his opinion, the General Court has authority under the Con- 
stitution of the Commonwealth to authorize cities and towns to establish 
fire insurance departments and to act as insurers against fire of all in- 
surable property situated within their limits; and especially to inform 
the General Court whether, in his opinion, the provisions of House Bill 
No. 386, now pending, being "An Act to authorize cities to insure property 
against loss by fire," would, if enacted, be constitutional. 

I am clearly of opinion that I must advise the Honorable Sen- 
ate and House of Representatives that the General Court has 
no authority under the Constitution of the Commonwealth to 
authorize cities and towns to establish fire insurance depart- 
ments, and to act as insurers against fire of all insurable prop- 
erty, situate within their limits. My answer to the first inquiiy 
must therefore be in the negative. 

Upon the further inquiry of the Honorable Senate and House 
of Representatives above stated, I am as clearly of opinion that, 
were the bill cited to become enacted, it would be, in my opin- 
ion, inoperative and void, because unconstitutional. The ques- 
tions presented appear to me to fall plainly within the field of 
adjudication and opinion of the Supreme Judicial Court of this 
Commonwealth, so that I do not deem it necessary at great 
length to set forth the reasons for holding the opinions which I 
submit, nor to support them by a multitude of citations of estab- 
lished judicial authority. I call the attention of the Legislature 
to the recent opinion of the justices of the Supreme Judicial 



420 OPINIONS OF THE ATTORNEY-GENERAL. 

Court, transmitted to the House of Representatives in reply to 
its order of January 14, 1903. The reasoning of that opinion 
and the grounds upon which it is based conclusively fix the lim- 
itations upon legislation within such fields as are opened by the 
incjuiries and the proposed bill transmitted to me for examina- 
tion. 



Railroads, — Foreign Corporation — Purchase of Stock 
OF Domestic Street Railway Company. 

A railroad incorporated under the laws of another State, carrying on business as 
a railroad within the Commonwealth, and authorized by its charter to invest 
in the stock of street railways wherever situated, even to the extent of a 
controlling interest therein, is not prohibited by the laws of this Common- 
wealth from acquiring the securities and assuming the ownership of domestic 
street railway corporations. 

A railroad holding a charter from a foreign State, permitting the acquisition of 
stock in street railway companies, and also incorporated under the laws of 
this Commonwealth, would not have authority, in the absence of special 
legislative permission, to purchase the stock of street railway companies 
incorporated in this Commonwealth, such purchase, in the case of domestic 
corporations, being forbidden by R. L., c. Ill, § 77. 

To the Com- 'j\-^q committee on railroads and street railways requests my 

mittee on j i j 

Railroads and 



April 6. 



Street Rail- opiniou upoii the following question : — 

^1^3 "First. — Has any railroad incorporated in another State, 

and doing business as such railroad within this State, which has 
a right under the charter of the foreign State to invest in the 
securities of street raihvays wherever existing, the right under 
the laws of this Commonwealth to invest in the securities and 
assume ownership of street railways incorporated in this Com- 
monwealth?" 

I assume that the foreign charter referred to is broad enough 
in terms to give the foreign railroad corporation power to pur- 
chase or subscribe for stock of our domestic street railways, even 
to the extent of a controlling ownership therein. 

The right of foreign corporations in general to own stock in 
Massachusetts street railway companies is recognized by R. L., 
c. 126, § 11: — 

If a foreign corporation which owns or controls a majority of the capi- 
tal stock of a domestic street raihvay, gas light or electric light corporation 



HERBERT PARKER, ATTORNEY-GENERAL. 421 

issues stock, bonds or other evidences of indebtedness based upon or 
secured by the property, franchise or stock of such domestic corporation, 
unless such issue is authorized by the law of this commonwealth, the 
supreme judicial court shall have jurisdiction in equity in its discretion 
to dissolve such domestic corporation. If it appears to the attorney- 
general that such issue has been made, he shall institute proceedings for 
such dissolution and for the proper disposition of the assets of such cor- 
poration. The provisions of this section shall not affeet the right of 
foreign corporations, their officers or agents, to issue stocks and bonds in 
fulfilment of contracts existing on the fourteenth day of July in the year 
eighteen hundred and ninety-four. 

There is no provision of our law forbidding such ownership by 
a foreign raih'oad corporation. But I do not consider under 
what circumstances such control might lead to a violation of the 
Sherman act (26 U. S. Sts. at Large, 209), such inquiry not being 
germane to the question addressed to me. 

The committee further requests my opinion upon a second 
question : — 

"Would such railroad, so incorporated and also incorporated 
in this Commonwealth, have such authority to purchase the 
securities of such street railways, unless specially authorized by 
the Legislature of this State?" 

A domestic railroad corporation, without express legislative 
authority, has no power to acquire the stock of street railways. 
Such acquisition is, indeed, expressly prohibited to a domestic 
railroad corporation by R. L., c. Ill, § 77: — 

No railroad corporation, unless authorized by the general court or by 
the provisions of the following five sections, shall directly or indirectly 
subscribe for, take or hold the stock or bonds of or guarantee the bonds 
or dividends of any other corporation; and the amount of the bonds of 
one or more other corporations subscribed for and held by a railroad 
corporation, or guaranteed by it conformably to special authority of the 
general court or the authority given in said sections, with the amount of 
its own bonds issued in conformity with sections sixty-three and sixty- 
four, shall not exceed at any time the amount of its capital stock actually 
paid in cash. 

This second inquiry presents the question whether a railroad 
corporation, existing by the concurrent legislative authority of 



4:22 OriXIOXS OF THE ATTOKXEY-GEXEllAL. 

this State and of another, may buy stock in our domestic street 
railway companies, such purchase being authorized by the for- 
eign State, but prohibited as to domestic railroad corporations 
by our law. The general law concerning such railroad corpora- 
tions contains no provisions applicable to or conclusive upon 
the question submitted. R. L., c. Ill, § 4: — 

A railroad corporation, chartered by the concurrent legislation of this 
and other states shall, as regards any portion of its road lying within 
this commonwealth, be entitled to all the benefits and be subject to all 
the liabilities of the railroad corporations of this commonwealth. 

This statute appears to be applicable rather to the physical 
locations, the operation and administration of the railroad 
within our jurisdiction, and does not appear to take into con- 
sideration and control those acts which are ultra vires of a Mas- 
sachusetts railroad and intra vires of a foreign company. I 
doubt whether any general answer can be made to the question 
addressed to me that will be conclusive upon any specific case, 
for there may be special legislation enacted by our General Court 
as to certain railroad corporations which would authorize such 
purchase as is the subject of your inquiiy; and an exhaustive 
examination of all such special legislation would have to be 
made, to ascertain what might be the rights or authorities of 
any designated railroad company. I may say, however, that, 
assuming no such permission has been granted by such special 
law, I hold to the opinion that our courts would decide that such 
railroad corporation has no lawful authority to purchase the 
stock of other corporations, but I do not know that this ques- 
tion has been specifically decided. I may suggest that, if it 
should be decided that the railroad corporation, created, for 
instance, by concurrent legislative action of Massachusetts and 
Connecticut, has a right to buy stock given by the laws of 
Connecticut but withheld by the laws of Massachusetts, the 
Legislature would, in my opinion, have power to revoke the 
Massachusetts charter, if it deemed that such action by 
the railroad company was sufficiently injurious to the pubhc 
interest to warrant such action. 



HERBERT PARKER, ATTORNEY-GENERAL. 423 

Telephone and Electric Light Companies — Locations for 
Poles and Wires — "Private Way" — Eminent Do- 
main — Constitutional Law — Compensation. 

Assuming that the term "private way," in a proposed act entitled "An Act to 
autliorize the granting to telephone and electric light companies locations 
for poles and wires upon private ways," is used in its technical sense, as 
referring to ways laid out under the provisions of R. L., c. 48, § 65, such 
way is in fact a public way; and the Legislature may authorize the grant of 
locations for poles and wires upon or along private ways, without provision 
for compensation for damages occasioned thereby. 

If, on the other hand, the term is used as referring to ways or lands held by private 
individuals, a statute assuming to authorize the location of poles and wires 
thereon, without provision for the recovery of damages by the owners, is 
unconstitutional. 

The committee on mercantile affairs has submitted to me a to the com. 

.,,,,.. 1-1 • mittee on 

drait 01 an act entitled An Act to authorize the grantmei; to Merc-mtiie 

^ ^ Affairs. 

telephone and electric light companies locations for poles and ^^;J!]fg 
wires upon private ways/' and the committee requests my opin- 
ion upon the question whether any of the provisions of said act 
are within constitutional prohibitions. 

I assume that the term "private way" is used in this act in 
its technical sense; that is, meaning a way laid out under the 
provisions of R. L., c. 48, § 65, and sections following. Such a 
way, although it be laid out for the use of a particular person 
or persons, upon whom the whole or any part of the damages 
may be assessed, is, nevertheless, a public way, because it exists 
through the adjudication of a public tribunal, and not through 
private contractual obligations, expressed or implied, between 
citizens. For the establishment of such private ways as the 
statute contemplates there must have been an adjudication and 
a taking by competent authority, for which taking due com- 
pensation must have been provided; and the easements or 
rights thus created are not limited as to their use or enjoyment 
to individuals or particular persons, for the ways have become 
branches and parts of public thoroughfares. 

I am of opinion, therefore, that a statute authorizing the 
proper authorities to grant locations for telephone or telegraph 
poles upon or along private ways is not open to constitutional 



424 OPINIONS OF THE ATTORNEY-GENERAL. 

objection, and it may be urged that the provisions of R. L., c. 
122, § 1, now give such authority. It may therefore be doubted 
whether any new legislation is required to meet the apparent 
purpose of the proposed act. 

If, however, the term ''private way" in the act referred to 
means a way over private land, in which the public has no inter- 
est, the way and the land over which it passes both being private 
property (and I am informed that the proposed legislation is 
directed to such state of facts), the absence of any provision for 
compensation to the owners of such property seriously endan- 
gers its validity, on constitutional grounds. 

There can be no question that the Legislature may grant the 
power to exercise the right of eminent domain to telephone and 
telegraph companies, or to agents who may exercise it in behalf 
of such companies; and I am of opinion that the Legislature 
may delegate this power to the mayor and aldermen of cities or 
to the selectmen of towns, to be exercised in the taking of land 
for such uses, provided, always, constitutional requirements are 
complied with. The act before me, however, contains no ex- 
press provision for the recovery of damages, and merely applies, 
or seeks to apply, by reference, the statute regulating the grant- 
ing of locations along the highways to the takings contem- 
plated by it. The provision for damages contained in R. L., 
c. 122, to which reference is made in § 3 thereof, relates to 
owners of lands abutting upon a public way, and contemplates 
resulting damages occasioned by the erection and maintenance 
of poles, rather than for the taking of land or the creation of any 
new right impairing private property interests. 

The provisions of the Revised Laws, above cited, in my opin- 
ion are not sufficient (for they do not extend, nor are they appli- 
cable, to the case of taking property by eminent domain) to 
secure constitutional rights to persons whose property is taken 
by the proposed act. I am, therefore, of opinion that reference 
to the above provisions of the Revised Laws does not bring the 
proposed act within constitutional limitations. 

I am further of opinion that the term "private way," as used 
in the act submitted to me, upon established rules of construe- 



HERBERT PAKKER, ATTORNEY-GENERAL. 425 

tion, whatever be the intent of the Legislature, now entertained, 
will be held to be a private way as defined by existing statutory 
law; that is, a way established and dedicated through the exer- 
cise of the right of eminent domain by some tribunal of compe- 
tent jurisdiction. I hold, therefore, that the act, in its present 
form, does not by its terms authorize the taking of private prop- 
erty or the invasion of private rights, and does not authorize the 
location of poles and wires upon private lands as such, but only 
within the limits of the statutory private way. I venture to 
suggest that the use of the words in the draft of the act, "owners 
of such private ways," is inartificial and ambiguous. A private 
way contemplated and defined by our statutes is not strictly 
private property, but, in a sense, belongs to the public, and is 
an easement dedicated by a constitutional adjudication to a 
quasi-public use. 

Chief of Cattle Bureau — Orders or Regulations — 
Approval — Publication — Governor and Council. 

R. L., c. 90, § 4, as amended by St. 1902, c. 116, § 3, which in part provides that 
no orders or regulations made by the Chief of the Cattle Bureau shall take 
effect until approved by the Governor and Council, and that such orders or 
regulations shall be published in the manner therein prescribed, requires 
that the method of publication shall be prescribed by such orders or regu- 
lations, and shall be subject to the approval of the Governor and Council. 

I beg to report that I have considered the communication to To the 

Gov6rnor, 

Your Excellency from the Chief of the Cattle Bureau, with re- laos^ 

gard to the publication of the rules and regulations made by 

authority of R. L., c. 90, § 4, as amended by St. 1902, c. 116, § 3. 
R. L., c. 90, § 4, provides as follows: — 

The board may from time to time make orders and regulations relative 
to the prevention, suppression and extirpation of contagious diseases 
of domestic animals, and relative to the inspection, examination, quaran- 
tine, care and treatment or destruction of such animals which are affected 
with, or have been exposed to, such diseases, . . . and all orders and 
regulations made by the board shall be entered on its records and a copy 
thereof shall be sent to each inspector in the city or town to which the 
orders or regulations apply, and he published by him in siich manner as 
the orders or regulations may prescribe. 



i26 OPINIONS OF THE ATTORNEY-GENERAL. 

St. 1902, c. 116, amended this provision by transferring the 
powers and duties of the Board of Cattle Commissioners to a 
Chief of the Cattle Bureau of the State Board of Agriculture; 
and further provided that no orders or regulations made by him, 
under authority of R. L., c. 90, §§4 and 7, should take effect 
until approved by the Governor and Council. 

The Chief of the Cattle Bureau inquires of Your Excellency 
whether or not the method of publication should be defined in 
the rules and regulations which are approved by the Governor 
and Council, under the provisions of the act above referred to. 

I am of opinion that R. L., c. 90, § 4, clearly requires that the 
method of publication of the rules and regulations provided for 
therein should be prescribed by such rules and regulations, and 
subject to the approval of the Governor and Council, 



Street Railways — Boston Elevated Railway Company — 
Location — Metropolitan Park Commissioners — Tax 
— Contract — Constitutional Law. 

By St. 1897, c. 500, § 10, pro\'iding in part that during a period of twenty-five 
years from the date of the passage thereof no taxes or excises, not then 
actually imposed upon street railways, should be assessed upon the Boston 
Elevated Railway Company except as defined in such statute, a contract 
was created between the Boston Elevated Railway Company and the Com- 
monwealth; and St. 1900, c. 413, § 2, authorizing the Board of Metropolitan 
Park Commissioners to grant to street railways locations over roadways, 
boulevards, parks and reservations subject to its control, "upon such terms, 
conditions and obligations, and for such compensation, as the public interests 
and a due regard for the riglits of the Commonwealth may require," in so 
far as it relates to compensation for grants of location, is not applicable to 
such company. 

The ultimate disposition of money received for taxes from the Boston Elevated 
Railway Company under the provisions of St. 1897, c. 500, § 10, forms no 
part of the contract created thereby, and may be changed or modified in such 
manner as the Legislature may deem proper. Such proportion of the taxes 
received from the Boston Elevated Railway Company as is based upon the 
mileage owned or controlled by such corporation within metropolitan park 
reservations may therefore be credited, under the provisions of St. 1900, 
c. 413. § 5, to the sinking fund created to meet the expenses of estabUsh- 
ing and maintaining such reservations. 

poiiton^ark' Your letter of April 14 requests my opinion upon certain ques- 
commiBsion. ^^qj^^ whlch arise in connection with a proposed grant of location 
JUL^- to the Boston Elevated Railway Company, and relate to the 



HERBERT PARKER, ATTORNEY-GENERAL. 427 

effect of St. 1900, c. 413, an act authorizing the Metropohtan 
Park Commission to grant street railway locations, upon St. 
1897, c. 500, which defines and determines the rights and duties 
of the Boston Elevated Railway Company and the West End 
Street Railway Company. 

You state that you desire to know the effect of § 5 of St. 1900, 
c. 413, upon § 10 of St. 1897, c. 500; and "more particularly 
whether any portion of the taxes and compensation to be paid 
under said § 10 by said railways to the Treasurer of the Com- 
monwealth will, under said § 5 of c. 413 of St. 1900, be credited 
to the sinking fund of the loan under which the boulevard or 
park in which the location was granted by this Board was pro- 
vided, or will all be distributed to the cities and towns within 
which the track is located; and, in either event, whether this 
commission has the right to require of the railway company addi- 
tional compensation." 

St. 1897, c. 500, an act to promote rapid transit in the city of 
Boston and vicinity, establishes in § 10 a toll or fare which may 
be charged by the railways above referred to, "which shall not 
exceed the sum of five cents for a single continuous passage in 
the same general direction upon the roads owned, leased or oper- 
ated by it;" and further provides that this sum shall not be 
reduced by the Legislature during a period of twenty-five years 
from and after the passage of the statute. The remainder of the 
section is as follows : — 

During said period of twenty-five years no taxes or excises not at 
present in fact imposed upon street railways shall be imposed in respect 
of the lines owned, leased or operated by said corporation, other than 
such as may have been in fact imposed upon the lines hereafter leased 
or operated by it at the date of such operating contract or of such lease 
or agreement hereafter made therefor nor any other burden, duty or 
obligation which is not at the same time imposed by general law on all 
street railway companies: provided, however, that said corporation shall 
be annually assessed and shall pay taxes now or hereafter imposed by 
general law in the same manner as though it were a street railway com- 
pany, and shall, in addition, as compensation for the privileges herein 
granted, and for the use and occupation of the public streets, squares 
and places, by the lines of elevated and surface railroad owned, leased 
and operated by it, pay to the Commonwealth, on or before the last day 



428 OPINIONS OF THE ATTORNEY-GENERAL. 

of November in each year, during said period of twenty-five years, an 
annual sum, the amount of which shall, in each year ending the last day 
of September, be determined by the amount of the annual dividend paid 
in that year by said corporation, in the following manner: If the 
annual dividend paid is ^x per cent, or less, or if no dividend is paid, 
the sum payable that year shall be a sum equal to seven-eighths of one 
per cent, of the gross earnings of all the lines of elevated or surface rail- 
roads owned, leased or operated by said corporation; if said dividend 
exceeds six per cent, then a sum equal to the excess of the dividends 
over six per .cent, in addition to said seven-eighths of one per cent, of 
said gross earnings. The above sum shall be paid into the treasury of 
the Commonwealth and distributed among the different cities and towns 
in proportion to the mileage of elevated and surface main track, reckoned 
as single track, which is owned, leased or operated by said corporation 
and located therein. 

St. 1900, c. 413, provides in § 1 that the Board of MetropoHtan 
Park Commissioners shall have authority to grant locations as 
therein provided to street railways within the roads, boulevards, 
parks and reservations in its care and control. Section 2 pro- 
vides that, after due notice and hearing, "if in the opinion of the 
board public convenience and necessity so require," it may grant 
such location or any part thereof upon such terms, conditions 
and obUgations and for such compensation as the public interests 
and a due regard for the rights of the Commonwealth may re- 
quire. Section 5 is as follows: — 

The share of the tax paid by any street railway company operating 
hereunder, into the treasury of the Commonwealth, which would under 
other provisions of law be apportioned to the city or town within which 
its tracks laid hereunder are situated, shall be apportioned to the Com- 
monwealth and credited by the treasurer to the sinking fund of the loan 
to which the expenditure for the road, boulevard, park or reservation in 
which the tracks are located was charged, 

St. 1897, c. 500, is a special act, limiting and defining the 
duties, rights and privileges of particular corporations; and the 
regulations and conditions thereby made applicable to such cor- 
porations would, under the ordinary rules of statutory construc- 
tion, remain unaffected by a later general enactment upon the 
same subject. Section 10, moreover, which fixes a minimum toll 



HERBERT PARKER, ATTORNEY-GENERAL. 429 

or fare which for a period of twenty-five years may not be altered 
or reduced by the Legislature, and provides the method of taxa- 
tion of the corporations which are within its terms, also estab- 
lishes the manner and rate of compensation to be paid by the 
Boston Elevated Railway Company for the use and occupancy 
of the public streets, squares and places over which its tracks 
may be laid; and in the matter of such compensation, as well as 
in respect of the amount of the fare which may be charged and 
the method of taxation to be adopted, constitutes a contract 
which may not be altered or impaired by subsequent legislation. 
2 Op. Atty.-Gen. 261. 

Such compensation is to be paid annually to the Common- 
wealth during a period of twenty-five years, and is to be deter- 
mined in each year by the annual dividend for that year. If 
such dividend does not exceed six per cent., the sum paid to the 
Commonwealth as compensation for the use of public streets and 
ways is to be equal to seven-eighths of one per cent, of the gross 
earnings of all the lines of elevated or surface railroads owned, 
leased or operated by the Boston Elevated Railway Company. 
If it exceeds six per cent., an additional sum is to be paid, equal 
to the excess of such dividend over six per cent. The money so 
received is to be paid into the treasury of the Commonwealth, 
and thereafter distributed among the different cities and towns 
in proportion to the mileage of elevated and surface main track 
which is owned, leased and operated by such corporation in each 
city or town. 

I am of opinion that it was the purpose of the Legislature by 
these provisions to establish a rate of compensation for the use of 
public streets, ways and squares by the Boston Elevated Rail- 
way Company, which, for a period of twenty-five years, should 
be payment in full for such use and occupation; and that the 
method and rate of compensation so established form an im- 
portant element in the contract between the Commonwealth and 
the railroad company, which cannot constitutionally be altered 
or amended for the purpose or with the effect of subjecting such 
corporation to the burden of any additional payment on account 
of the use and occupation of public streets or ways. That such 



430 OPINIONS OF THE ATTORNEY-GENERAL. 

would be the effect of applying the provisions of St. 1900, c. 413, 
§ 2, to the corporation in question cannot be doubted. The sum 
annually due to the Commonwealth as compensation for such use 
and occupancy is based upon the gross earnings of all the lines 
owned or controlled by it; and if, upon the granting of the right 
to lay tracks over land within the jurisdiction of the Metropolitan 
Park Commission, a further charge should be imposed therefor, 
it would result that the corporation would pay in compensation 
for such privilege not only the proportionate part of the amount 
annually due the Commonwealth under the provisions of St. 
1897, c. 500, § 10, based upon the gross earnings of that particu- 
lar line of track, but also the compensation fixed and determined 
by the commission under the provisions of St. 1900, c. 413, § 2, 
— an additional charge, not contemplated or provided for in the 
original contract. It follows, therefore, that the Metropolitan 
Park Commission is not authorized to require of the Boston 
Elevated Railway Company, under the provisions of St. 1900, 
c. 413, § 2, any additional compensation for the right to occupy 
roads, boulevards, parks and reservations under its care and 
control. 

The second question submitted deals with the disposition of 
the taxes paid by the Boston Elevated Railway Company, under 
the provisions of St. 1897, c. 500, § 10, to the Treasurer of the 
Commonwealth. By this section it is provided that the taxes 
paid by such corporation into the treasury of the Common- 
wealth shall be distributed among the different cities and towns 
in proportion to the mileage of track owned, leased or operated 
by it within the limits of each city or town. St. 1900, c. 413, 
§ 5, provides that, where locations are granted in boulevards, 
parkways or open places controlled by the Metropolitan Park 
Commission, that proportion of the tax which would be ulti- 
mately paid to the city or town in which such parkways, boule- 
vards or open places are located, if they were not under the 
control of the Commonwealth, shall be apportioned to the Com- 
monwealth, and credited by the Treasurer to the sinking fund 
of the loan created to meet the expenses of that particular work, 

I am of opinion that the ultimate disposition of money re- 



HERBERT PARKER, ATTORNEY-GENERAL. 431 

ceived for taxes under the provisions of St. 1897, c. 500, § 10, 
forms no part of the contract created thereby, and may be 
changed or modified in such manner as the Legislature may deem 
proper, without constituting a violation of the contractual rela- 
tion subsisting between the Commonwealth and the Boston Ele- 
vated Railway Company; since the corporation can have no 
further interest in such money after payment to the Common- 
wealth, and no additional burden or obligation is imposed upon 
it by crediting a portion of the amount so paid to the sinking 
fund of a metropolitan park loan, instead of distributing such 
portion to the various cities and towns through which its tracks 
extend. The provision of St. 1900, c. 413, § 5, that such pro- 
portion of the taxes received from the Boston Elevated Railway 
Company as is based upon the mileage owned or controlled by 
such corporation within metropolitan park reservations may be 
credited to the sinking fund of the loan created to meet the 
expenses of establishing and maintaining such reservations, is 
therefore applicable to the sums received as taxes from such cor- 
poration under the provisions of St. 1897, c. 500, § 10. 



Flats — Planting and Cultivation of Oysters — Licenses 
— City or Town Authorities — Boundaries. 

Under R. L., c. 91, §§ 104 and 105, the authority of the mayor and board of alder- 
men in cities, and of the selectmen in towns, to grant hcenses for the planting 
and cultivation of oysters upon flats between high and low water mark, is 
limited to licenses for the placing of shells upon such flats, upon written con- 
sent of the owner thereof; and all other operations connected with the cul- 
tivation or digging of oysters must be carried on below mean low-water 
mark. 

R. L., c. 91, § 105, does not require that the licenses granted thereunder shall 
specify the shore line in feet, if reference may be otherwise made to metes 
and bounds which are readily ascertainable. 

I have your letter of March 28, requesting my opinion upon To|he Board 
the construction of R. L., c. 91, §§ 104 and 105, relative to the °*i}|'^"'^™^'^" 
granting of licenses for the growing and digging of oysters. ^^^^ " • 

The selectmen of towns are local officers, and as such are not 
entitled to the opinion of the Attorney-General; but, inasmuch 



432 OPINIONS OF THE ATTORNEY-GENERAL. 

as the question is one of general importance, and, in a measure, 
involves rights of the public and of the Commonwealth, I have 
deemed it expedient to submit for your guidance my views upon 
the subject. 

R. L., c. 91, § 104, is as follows: — 

The mayor and aldermen of a city or selectmen of a town may, by 
writing under their hands, grant a license for a term not exceeding ten 
years to any inhabitant thereof to plant, grow and dig oysters at all 
times of the year, or to plant oyster shells for the purpose of catching 
oyster seed, upon and in any waters, flats and creeks therein, at any 
place where there is no natural oyster bed; not, however, impairing the 
private rights of any person, nor materially obstructing any navigable 
waters. 

Section 105 provides that • — 

Such license shall describe by metes and bounds the waters, flats and 
creeks so appropriated and shall be recorded by the city or town clerk 
before it shall have any force, and the licensee shall pay to the mayor 
and aldermen or selectmen, for their use, two dollars, and to the clerk 
fifty cents. The shore line of such licensed premises shall be the line of 
mean low water for the planting and growing of oysters, and the line of 
high water for the planting of oyster shells, but the provisions of this 
section shall not authorize the placing of such shells upon the land of a 
riparian owner between high and low water mark without his written con- 
sent. 

By the first of the above sections the mayor or aldermen of a 
city or the selectmen of a town are authorized to grant licenses, 
under certain conditions, first, to grow and dig oysters at all 
seasons of the year; and, second, to plant oyster shells for the 
purpose of catching oyster seed upon and in any waters, flats 
and creeks within the limits of such city or town at any place 
where no natural oyster bed is found. Section 105 provides 
that the shore line of such licensed premises shall be the line of 
mean low water for the planting and growing of oysters, and, 
with the consent in writing of the riparian owner, the line of high 
water for the planting of oyster shells. 

The effect of this provision is to limit the right of the select- 
men to grant hcenses for the digging and growing of oysters to 



HERBERT PARKER, ATTORNEY-GENERAL. 433 

flats below low-water mark, and to distinguish such licenses 
from those which, with the consent of the riparian owner, permit 
the placing of oyster shells upon the flats between high and mean 
low-water mark. The apparent purpose of this distinction is to 
permit the licensee to place oyster shells upon the land of the 
riparian proprietor between high and low water mark, in order 
to catch the oyster seed or ''spat," which are brought by the 
currents into contact with and adhere to such shells. The shells 
so placed, and to which the growing oysters are attached, may 
then be removed to other beds below mean low-water mark, 
with the result of improving the size and quality of the oysters. 

The digging of oysters, however, might constitute a serious 
interference with private rights; and for this reason, as well as 
for the reason that growing oysters must be constantly covered 
by water, the further cultivation and the harvesting of oysters 
if planted must be carried on below low-water mark. 

I am therefore of opinion that the statute above quoted limits 
the authority of your board to the granting of licenses for the 
placing of shells upon flats between high and low water mark, 
and then only with the written consent of the riparian owner, 
and that all further cultivation and digging of oysters must be 
conducted below mean low-water mark. 

Your letter contains the further question, whether a "lease for 
the cultivation of oysters below mean low-water mark may be 
granted with a shore bound without the number of feet being 
specified on the shore.' 

I am of opinion that the requirement of the statute that the 
licenses shall describe by metes and bounds the waters, flats and 
creeks so appropriated, does not require the shore line specified 
in feet, if reference is otherwise made to metes and bounds 
which are readily ascertainable. As a matter of practice, how- 
ever, it would seem preferable that, wherever it is possible, the 
license should specify the distance in feet. 



434 OPINIONS OF THE ATTORNEY-GENERAL. 



Extradition — Attorney-General — Expediency — Gov- 
ernor — Good Faith of Affidavit of Complaini