(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

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

OFFICIAL OPINIONS 



THE ATTORNEYS-GENERAL 



Sl|? dommnniuf altl| of iKaHBarI]uarttfi. 



PUBLISHED BY THE 

ATTORNEY-GENERAL. 



Volume III. 

From 1906 to 1912 inclusive. 



BOSTON : 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

32 DERNE STREET. 

1913. 



THIS VOLUME CONTAINS 
THE OPINIONS OF ATTORNEYS-GENERAL 

DAl^A MALOKE, 1906-1910. 
JAMES M. SWIFT, 1911-1912. 

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



PREFACE. 



By chapter 11 of the Resolves of 1913 the Attorney-General was 
authorized "to collect and publish in a volume properly indexed 
and digested such of the official opinions heretofore published as 
an appendix to the annual reports of the attorney-general during 
the years nineteen hundred and six to nineteen hundred and twelve, 
inclusive, as he may deem to be of public interest or useful for 
reference." In pursuance thereof this collection of opinions is 
published as Volume III. of the Opinions of the Attorneys-General. 

It has been my purpose to make this volume in substantial 
uniformity with the preceding volumes, and it is hoped that future 
opinions will be published so that there will be a corresponding con- 
tinuity in the publications from time to time. The work of prepara- 
tion has been in charge of Frederic B. Greenhalge, Esq., Assistant 

Attorney-General. 

JAMES M. SWIFT, 

Attorney-General. 

Boston, November, 1913. 



Table of Statutes cited or referred to in this 

Volume. 



Art. 1, § 2, 
Art. 1, § 8, 
Art. 1, § 9, 



United States Constitution. 



. 268 

267, 268, 496 

. 267 



Art. 4, § 1, . 
Art. 4, § 2, . 
Amendment 14, 



PAGE 

. 438 
. 433 

. 277 



Acts of Congress. 



1890, July 2, 26 Stat. 209, c. 647, . 234 
1894, August 27, 28 Stat. 509, c. 349, 269 



1906, June 29, 34 Stat. 596, c. 3592, 107 
June 30, 34 Stat. 674, c 3913, 212 



§ 5219, 



United States Revised Statutes. 

PAGE I 

. 410 I § 5278, 



PAGE 

. 434 



Constitution of the Commonwealth. 



Dec. of Rights, art. 9, . . 499, 510 

art. 30, . 191, 222, 510 

Const., c. 1, § 1, art. 2, 414, 415, 554 

§ 1, art. 4, 154, 285, 287, 

300, 385, 410, .500, 549 

c. 2, § 1, art. 7, . . 547 

§ 1, art. 10, . . 548 



Const., c. 2, § 1, art. 11, . 154, 227 

§ 3, art. 1, 5, . . 227 

§ 4, art. 2, . . 415 

Const., c. 5, § 2, . . . . 385 

Amend' ts Const., art, 3, 20, 31, . 499 

art. 18, 75, 156 



1793, c. 34, 
1799, c. 87, 
1804, c. 10, 
1809, c. 108, 

1821, c. 32, § 1, 

1822, c. 92, § 16, 
1826, c. 143, 
1835, c. 144, §§ 2, 3, 
1854, c. 286, 



Statutes of the 

PAGE 

69 
155 

14 
550 
551 
550 

38 
551 
333 



Common\\t:alth . 





PAGE 


1854, c. 448, § 47, 


. 555 


1857, c. 56, 


. 13 


1860, c. 211, 


. 541 


1863, c. 220, 


. 308 


c. 220, §§ 1-8, 


. 309 


1864, c.c. 48, 143, 211, . 


. 562 


c. 223, 


. 310 


1865, c. 283, § 8, . 


. 188 


1866, c. 67, 


. 413 



Vlll 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 





PAGE 




PAGE 


18(iG, c. 263, 


. 310 


1888, c. 426, 


. 321,322 


1S67, c. 75, 


. 275 


1889, c. 45, 


. 311 


ISOS, c. 153, § 1, 


. 446 


1890, c. 307, 


. 324 


ISno, c. 249, 


. 535 


c. 320, 


. 594 


1870. r. .370, § 10. 


446 


c. 375, 


. 63 


1S71, c. 167, 


. 86 


c. 421, 


. 82 


c. 378, 


. 310 


1891, c. 308, 


. 203, 204 


1872, c. 62, § 2, 


. 303 


c. 350, 


. 63 


c. 265, 


. 365 


1893, c. 263, 


. 202 


c. 364, 


. 161 


c. 406, 


. 63 


1873, c. 166, 


. 446 


c. 407, §§ 4, 


6, . 15, 96, 97, 


c 262, 


. 445 




99, 100, 102, 103, 167 


c. 277, 


. 365 


■ c. 413, § 1, 


. 149, 150 


1874, c. 233, § 2, . 


. 445 


1894, c. 53, 


. 240 


c. 375, 


32,33 


c. 143, 


. 310 


c. 389, 


. 446 


c. 288, §§ 1, 


3, . . . 167 


1875, c. 49, § 2, . 


. 32 


§3, 


96, 98, 99, 


c. 185, 


. 407 




100, 101, 103 


§§3, G, 17, 


. 407 


c. 317, § 21, 


. 257 


1876, c. 19, 


. 423 


c. 341, 


. 324 


1877, c. 195, § 1, . 


. 446 


c. 481, § 24, 


. 322 


c. 214, 


. 320 


§ 44, 


. 324 


c. 218, 


. 218 


c. 497, 


. 306 


§ 1, . 


. 218 


§5, 


. 306 


1878, c. 237, 


. 162 


c. 498, § 20, 


. 445 


1879, c. 236, 


. 413 


c. 508, §§ 7, 


8, . . 63,64 


c. 291, § 2, . 


. 446 


c. 548, 


. 400 


1882, c. 106, 


. 188 


§ 8, , 


. 377 


c. 139, 


. 446 


§ 16, 


. 400 


c. 266, § 2. . 


. 320 


1895, c. 57, 


. 310 


1883, c. 251, 


321,322 


c. 148, § 34, 


. 190 


c. 2.52, 


. 447 


c. 449, §§ 14 


20, . . 325 


1884, c. 201, § 2, . 


. 448 


1896, c. 178, 


. 183 


c. 320, §§ 2, 14, . 


. 159 


c. 397, § 9, 


. 571 


§ 15, 


. 160 


c. 465, § 2, 


. 96, 97, 99 


1885, c. 21, 


. 13 


1897, c. 121, § 3, 


15, 101 


1SS6, c. 117, 


. 594 


c. 266, 


. 447 


c. 150, 


. 447 


c. 395, 


. 325 


1887, c. 96, 


. 463 


§5, 


. 325 


§§ 2, 6, . 


. 463 


c. 500, § 10, 


. 397, 400, 401 


§6, . 


. 465 


§ 22, 


. 400 


c. 177, 


. 327 


1898, cc. 194, 399, 


.240 


c. 270, 


. 45 


c. 278, § 4, 


. 545 


c. 392, 


. 572 


c. 282, 


. 327 


'^^^"250, 


. 204 


c. 425, § 1, 


. 115 



STATUTES CITED. 



IX 



Statutes of the Commonwealth — Con. 



1898, 
1899, 

1900, 



1902, 



1903, 



c. 425, § 2, . 

c. 496, §§ 33, 36, 

c. 229, 

c. 344, 

c. 388, 

c. 192, 

c. 197, 

c. 340, 

c 357, 

c. 424, 

cc. 426, 468, 

c. 475, §§ 1, 2, 

c. 116, 

§3, 

c. 213, § 1, 
c. 355, 
c. 163, § 3, 
c. 220, 
c. 237, 
c. 253, 
c. 281, § 6, 

§14, 

c. 355, 
c. 437, 



187, 189, 281, 417, 
§ 7, 
§40, 
§56, 
§58, 

§§ 58-60, 
§72, 
§84, 



§§ 5, 6, 



1904, 



c. 462, 

c. 465, 

§ 4. 

c. 473, § 8^ 
c. 314, 
c. 348, 
c. 370, 
c. 409, § 4, 
c. 451, 

c. 452, 
c. 453, 
c. 454, 



3, 4, 361, 362, 



PAGE 

68,69 
. 445 
. 83 
63, 64 
. 150 
. 90 
. 75 
. 15 
. 63 
. 240 
. 239 
. 113 
. 210 

212, 214 
. 138 
. 131 
. 377 
. 210 
. 59 
. 279 
. 565 
. 566 
. 139 

418, 420 

195, 417 
. 252 
. 163 
. 255 

188, 189 

249, 336 
. 507 
. 91 
. 92 
. 429 
. 429 
27, 79 
. 168 
. 187 
. 52 
. 129 
. 364 

360, 362 
. 361 

363, 364 
. 361 



1904, c. 455, §§ 1, 

c. 458, 

1905, c. 150, 

c. 165, 

c. 179, 

c. 243, § 2, 

- c. 267, § 1, 

c. 280, 

c. 330, 

c. 339, 

c. 347, § 25, 

c. 366, 

c. 381, § 1, 

§3, 

§6, 

c. 435, § 1; 

c. 464, 

1906, c. 48. 

c. 117, 

c. 187, 

c. 241, 

c. 268, § 1, 

cc. 276, 290, 

c. 281, 

§2, 

c. 284, § 2, 

c. 286, 

c. 291, § 8, 

§ 10, 

c. 325, 

c. 372, 

c. 386, 

§1, 

c. 412, 

§9, 

0. 433, § 8, 

c. 463 part 

part 



26, 27 



PAGE 

. 362 
. 162 
. 169 
. 363 
. 362 
. 168 
177, 178, 179 
. 52 
. 582 
3, 4, 5, 363 
. 320 
, 28, 79, 80 
. 537 
. 536 
. 34 
. 151 
. 124 
. 218 
59, 61 
. 187 
. 189 
. 536 
. 362 
. 50 
. 51 
178, 179 
195, 417 
. 164 
. 327 
. 363 
473, 475 
. 180 
. 216 
. 79 
27, 80 
. 122 
§ 67, . . 240 
§ 47, 200, 204, 206 
§§ 48-56, . 331 



part III, 



§51, 
§57, 
§65, 
§66, 
§103, 



. 333 

476, 478 
. 184 
184, 185 
329, 330, 
333, 334, 335 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 



190i>, 



1907, 





PAGE 1 


PAGE 


(-.463, part 111, §§107-112, . 331 


1907, c. 576, § 32, 




. 220 
. 147 


§ 125, . 


. 144 


§ 37, 




§ 133, . 


. 143 


§§ 60, 75, 9 


3, . 


. 220 


§144, . 


. 144 


§ 91, 




220, 224 


§ 157, . 


. 513 


c. 579, § 1, . 




. 338 


c. 479, 


. 75 


c. 580, §§ 1, 2, 




116, 117 


c. 505, 




261, 315 


c. 585, 




240, 287 


§5, . 




316, 317 


§ 1, • 






. 282 


c. 517, 




. 61 


c. 586, 






. 244 


§ 1, ■ 




. 62 


1908, c. 194, 






. 244 


§§ 2, 3, . 




. 74 


c. 199, 






. 218 


c. 521, § 1, . 




. 492 


§ 3, . 






. 219 


c. 145, § 2, . 




. 362 


c. 210, 






. 164 


c. 170, 




. 560 


c. 248, 






. 220 


c. 222, § 1, . 




. 90 


c. 323, 






. 363 


c. 253, 




. 362 


c. 329, 






210, 214 


c. 259, § 1, . 




180, 216 


§1, 




21 


4, 215, 216 


§§ 3, 4, 5, . 




. 180 


§2, 






. 214 


§6, . 




181,217 


§§ 5, 


7, . 




. 215 


c. 261, 




. 447 


c. 389, 






. 193 


c. 267, 




. 126 


c. 404, 






. 243 


c. 269, 




. 93 


§2, 






. 243 


c. 377, § 4, 




. 118 


c. 454, 




42 


7, 428, 528 


c. 386, 




. 138 


c. 484, § 3, 






. 206 


§1, . 




. 139 


c. 520, § 1, 






454, 574 


§2, . 




. 141 


§2, 




45 


4, 455, 574 


c. 402, § 1, . 




. 512 


§§3, 


5, 




. 574 


c. 458, § 1, . 1 


19, 12 


8, 142, 494 


§8, 






. 259 


c. 465, § 10, 




. 586 


c. 572, 






. 315 


§17, 




. 585 


§4, 






. 315 


c. 467, 


3C 


3, 304, 367 


c. 590, 






. 185 


§ 1, • 3 


66,44 


9, 450, 451 


§ 16, 




. 250, 374 


§ 112, 




. 367 


§ 19, 




. 264 


c. 503, § 1, . 




. 320, 322 


§44, 




454, 455 


c. .537, 




. 193 


§ 46, 




. 410 


§3, . 




. 198 


§ 68, 




. 339, 341 


§5, . 




192, 194 


cl. 1, 


. 256 


c. 560, § 186, 




. 508 


cl. sr, 


. 463, 465 


§ 306, 




. 458 


cl. 3a, 


. 186 


§ 316, 




. 497, 502 


c. 591, § 1, . 


. 536 


§ 317, 




. 498 


c. 597, § 4, . 




. 348 


§371, 




. 337 


§ 6, . 




. 349 


c. 576, 




. 172 


c. 604, § 12, 




. 546,547 


§§1.3, 




. 223 


§ 133, 




. 358 


§26, 




. 173 


1 § 14( 


), 




. 344, 345 



STATUTES CITED. 



XI 



Statutes of the Commonwealth — Con. 



1908, c. 60i, 



§ 142, 

§§ 142-150, 



c. 

1909, c 

c 

c 

c 

c 



615, 
232, 
263, 
323, 
342, 
382, 
419, 
457, 
486, 



§1, 



§3, 



296, 297, 298, 



§1, 

§§1-14, . 

§ 9, . 297, 298, 352, 

§ 10, 297, 351, 355, 356, 

§15, 

c. 490, part I, § 4, . 300, 

§ 5, cl. 3, . 

§§ 15-18, 20, 



45, 



part III, 



§85, . 

§§ 21-23, 
§§ 40-43, 
§ 41, cl. 3, 
§43, 
§70, 



502, 
504, 



c. 514, 



§7, 
§8, 

§2, 



§§ 14-23, 

§18, 

§24, 

§44, 

§§ 99, 100, 

§17, 

§42, 

§47, 

§48, 

§56, 



519, 
524, 



§1, 



101, 



339, 



289, 
102, . 

567, 
269, 



281, 



490 
517 
244 
362 
537 
358 
409 
299 
411 
315 
326 
297 
354 
357 
325 
431 
385 

336 
266 
281 
409 
504 
249 
335 
505 
410 
463 
338 
340 
254 
265 
313 
359 
290 
252 
456 
568 
456 
456 
412 
419 
429 
429 



1909, c. 534, 



§§ 2, 29, 
§22, 



c. 539, 

c. 540, 

1910, c. 220, 



c. 311, 

— - c. 385, 

c. 476, 

c. 501, 

c. 536, 

c. 537, 

c. 601, 

c. 616, 

1911, c. 82, 

c. 119, 

c. 297, 

c. 311, 

■ c. 449, 

c. 484, 

c. 494, 

c. 534, 

c. 562, 

c. 566, 

c. 597, 

c. 614, 

c. 679, 

c. 736, 

c. 751, 

1912, c. 268, 

c. 343, 

c. 458, 

c. 531, 

c. 608, 

c. 702, 



346, 349, 350, 
§§ 1, 2, . 
§§ 3, 4, 5, 6, 7 

§21, 
§1, 



§1, 
§1, 



§1, 
403, 



§1, 
§1, 



329, 



404, 405, 



§11, 

§§ 1, 2, 6, 
§§ 1, 2, 
§3, 



§§ 1, 2, 



§7, 
§6, 



§§ 1, 2, 



PAGE 

. 318 
. 318, 319 

. 570 
. 274, 275 

. 317 

405, 406, 442 

. 347 
.348 

. 292, 293 
. 293 
. 417 
. 394 
391, 393, 395 
. 363 
331, 333, 335 
. 362 
. 472 
. 579 

. 342, 523 

406, 442, 443 

. 415 
. 575, 577 
. 460 
. 551 
. 456 
. 568 
420, 421, 567 
575, 576, 577 
. 524 
. 452 
. 459 
. 514 
. 498 
. 467 
. 468 
. 569 
. 551 
578, 580, 581 
. 579 
. 581 
. 585 
. 576 
. 561 
. 561 



Xll 



STATUTES CITED. 





Resolves. 






PAOE 




PAGE 


1SS4, c, 50, 


. 310 


1907, cc. 12, 105, . 


. 218 


1902, cc. 11, 57, . 


. 506 


cc. 19, 36, . 


. 506 


1903, cc. 36, 77, 83, 


. 506 


c. 104, 


. 152 


1904, cc. 49, 78, . 


. 506 


1908, cc. 49, 52, 55, 


. 506 


1905, cc. 50, 77, . 


. 218 


c. 86, 


. 596 


c. 55, 


. 506 


1909, c. 137, 


. 506 


1906, cc. 48, 53, . 


. 218 


1910, c. 102, 


. 506 


c. 61, . 


. 506 







169S, c. 20, 



Province Laws. 



PAGE 

489, 516 



Revised Statutes. 



c. 7, §4, 
c. 12, § 73, 



c. 11, §4, 
c. 13, § 62, 
0.32, . 



. 300 


c. 12, §§ 67-73, 


. 549 


c. 119, § 12, 


General 


Statutes. 


PAGE 




. 300 


C.58, §§32,65, 


. 551 


c. 68, §41, 


13,32 


c. 71, §49, 



FAGB 

551 
275 



PAGB 
. 41 

311 

58 



Public Statutes. 



c. 11, §4, . 
c. 12, §§ 14, 10, 
c. 13, §§ 39, 40, 
§43, . 



•i, § 21, 
5§23, 
§30, 

6, § 15, 
§ 19, 
§28, 
§51, 
§58, 
§74, 



30, 



PAGE 






25,300 


c. 20, 


§5, . 


. 25 


c. 83, 


§1, . 


. 25 


c. 100, 


§9, . 


. 188 


c. 104, 


§20, 


Revised Laws. 




PAGE 






. 118 


0. 7, 


§§, 1. 9, 


. 469 




§6, . 


. 470 




§7, . 


. 228 


c. 8, 


§1, . 


. 229 




§4, . 


. 227 




§5, . 


. 444 




§ 5, cl. 9, 


28, 142 


c. 9, 


§1, . 


. 104 




§7, . 



PAGE 

. 310 
. 115 

7,8 
. 320 



. 30 

. 588 
201, 472 
. 250 
. 95 
34,35 
. 468 
. 553 
. 310 



STATUTES CITED. 



Xlll 



Revised Laws — Con. 



c. 12, 



c. 14, 



c. 19, 



?3, . 
J4, . 
\5, . 
\ 5, cl. 3, 
\ 5, cl. 7, 
!§ 58, 68, 
j24, 
128, 
i50, 
151, 
165, 
\5, . 



— §9, 



c. 20, 

c. 21, 

c. 22, 

c. 23, 

c. 25, 

c. 26, 

c. 27, 



325 
516, 
120, 
!23, 

j§ 25, 26, 28, 32, 
U9, 
}27, 
!§ 8, 12, 
J12, 
!l7, 
\22, 
\ 7, . 
\8, . 
il4, 
}62, 

!§ 87, 88-93, 
!§ 2, 8, 
J28, 
136, 

!§ 5, 8, 10, 
J6, . 



PAGE 

. 34 

25, 300, 432 

66 

247 

156 

36 

19 

20 

255 

188, 189 

. 244 

354, 355 

271,326,355 

. 326 

130, 159, 160, 191, 

326, 327, 355, 369, 577 

106, 461 



c. 31, 

c. 32, 

c. 35, 

c. 42, 



jll, 
J18, 
5 21, 
J2, . 
j73, 
\5, . 
\17, 
j§ 27, 28, 



. 169 
159, 169 
. 159 
. 447 
10, 11 
. 559 
. 560 
. 559 
. 290 
. 182 
. 447 
488, 489, 516 
. 447 
. 326 
. 326 
. 382 
. 594 

422, 423 
328, 342 
565, 566 

71 
72 

423, 566 
101 
279 

122, 136, 355, 356, 357 
136 
37 



c. 42, §§ 34, 35, 37, 
c. 47, 

§§7,8, . 

§11, 

§ 13, 

§21, 

c. 51, § 18, 
c. 56, § 1, . 

§§70,73, . 

§§70-76, . 

c. 62, § 8, . 
c. 73, § 207, 
c. 75, § 8, . 

§ 19, 

§§42, 43, 44, 45, 

§65, 

- §§75-85, . 

§99, 

§ 100-108, 

§ 101, 

§§ 103, 104, 

§109, 

- §§ 112, 113, 

§113,304,365,366, 

c. 76, § 17, 

- §23, 

§24, 

c. 80, § 1, . 

§6, . 

c. 81, § 17, 

§21, 

c. 85, § 16, 

§20, 

c. 86, § 1, . 
c. 87, §§ 9, 37, 

§78, 

§79, 

§120, 

c. 89, § 10, 
c. 90, 

§4, . 

§6, . 

§7, . . 210, 

§§12, 13, 14, 16, 

§§ 12-34, . 



60 



PAGE 

38 

59 
113 
242 
175 

60 
175 
427 
209 
211 

51 
343 
81,82 
217 
197 
196 
540 
209 
211 
209 
210 



303 

449, 450, 451 

72 

92 

447 

. 68, 114 

68, 85, 207 

. 58 

138, 139, 141 

. 146 

57, 58 

. , .453 

. 134 

. 58, 133 

. 133 

. 57 

. 310 

. 210 

. 208, 211 

. 208 

211, 212, 213 

. 211 

. 211 



XIV 



STATUTES CITED. 





Revised Laws — Con. 




PAGE 1 




c. 90, §2.8, 


. 212 


c. 118, § 25, 


r. 91, § IK), 


• ^^ 


§29, 


§118, 


. 19 


§68, 


c. 92, § 11, 


. 189 


§§87,89, 


c. 96, §8, . 


. 17 


§96, 


c. 100, § 13, 


391,393,395 1 


c. 122, § 2, . 


§§ 14, 15, . 


. 393 


c. 125, § 2, . 


§17, 


9, 393 


§8, . 


§ IS, 


7, 8, 392, 461 


§12, 


c. 102, §§ 1, 2, 


. 278 


c. 126, 


§§ 78, 79, 80, 


. 524 


c. 134, § 11, 


§§78,79, . 


. 525 


c. 138, §§ 17, 18, 


c. 104, § 41, 


. 192 


c. 145, § 41, 


§ 22, 


. 231 


c. 151, §§ 16, 23, 


§25, 


. 322 


§25, 


§ 33, 


. 324 


c. 153, § 2, . 


§§33,34, . 


. 323 


c. 157, §§ 16, 17, 


§49, 


. 320 


c. 158, § 8, . 


c. 106, § 19, 21, . 


. 64 


c. 164, § 17, 


§20, 


64, 567, 568 


c. 165, § 4, . 


§28, 


. 177, 178 


§31, 


§ 32, 


. 178, 179 


§37, 


§§41-45, . 


. 192 


§52, 


c. 108, § 1, . 


. 447,493 


c. 175, § 7, . 


§7, . 


. 520 


c. 195, § 116, 


c. Ill, §77, 


. 55 


c. 204, §§ 2, 21, 


c. 112, §72, 


75, 77 


§§21,47, 


c. 113, § 26, 


43, 46, 183 


c. 208, § 7, . 


§26, d. 1, 


. 258 


c. 211, § 1, . ' 


§ 26, cl. 3, h. 


. 185 


c. 212, §§ 36, 47, 


§ 55, 


. 135 


c. 214, 


c. 114, §§ 1, 11, . 


. 373 


c. 217, § 14, 


c. 116, §34, 


. 69 


C.222, §1, . 


c. lis, § 11. 


83, 84 





Ill, 



)7-62, 



PAGE 

. 171 

40, 42 
47,49 
. 47 
. 123 
. 59 
12, 13 
13, 14, 32 
. 32 

255, 256 
. 535 
. 134 
. 254 
. 467 
. 468 

120, 260 
. 560 
. 560 
. 447 
. 447 
. 107 
107, 108, 292 
. 186 
. 444 

540, 541 
. 444 
. 293 
. 535 

489, 516 
. 102 

583, 584 
. 440 
. 447 



1874, § 154, 



Laws of Minnesota. 

PAGE I 

. 237 I 1881, § 109, 



PAGE 

. 237 



1809, c. 359. 



General Laws of Minnesota. 



PAGE 

. 237 



STATUTES CITED. 



XV 



1889, c. 5, 
c. 146, 



§10, 



Laws of New Hampshire. 



PAGE 




PAGE 


. 202 


1893, c. 100, 


. 202 


. 203 


1895, c. 27, §§ 22, 23, . 


. 202 


. 202 


1903, c. 102, 


. 202 



1901, c. 118, § 1, 



Laws of New York. 

PAGE I 

. 20 I 1905, c. 94, 



PAGE 

. 20 



XVI 



CASES CITED. 



Table of Cases cited in this Volume. 



Abbott V. Frost, 185 Mass. 398, 26, 336 
Adams Express Cases, 165 U. S. 

194; 165 U. S. 255; 166 U. S. 

171; 166 U. S. 185, . . 245 

V. Goodrich, 55 Ga. 233, 234, 421 

t'. Ipswich, 116 Mass. 570, . 58 

Addyston Pipe & Steel Co. v. United 

States, 175 U. S. 211, . 234 

.^tna Life Ins. Co. v. Hardison, 

199 Mass. 181, . . . .220 
Agawam National Bank v. South 

Hadley, 12S Mass. 503, . . 328 
AUgeyer v. Louisiana, 165 U. S. 

578, 590, 225 

American Circular Loom Co. v. 

Wilson, 198 Mass. 182, 206, . 313 
American Glue Co. v. Common- 
wealth, 195 Mass. 528, . 246 
Amherst Academy v. Cowls, 6 Pick 

427,433, 311 

Anderson v. Assurance Co., 59 

Minn. 182, .221 

V. United States, 171 U. S. 604, 234 

Andrews v. Berkshire Power Co., 

145 Fed. 47, 147 Fed. 76, 203, 

U. S. 596, . .598 

Appleyard v. Massachusetts, 203 

U. S. 222, .... 437 

Arnold V. Yanders, 56 Ohio 417, . 496 
Athol Music Hall Co. v. Carey, 116 

Mass. 471, .... 121 

Atlantic Coast Line R.R. Co. v. 

North Carolina Corporation 

Commission, 206 U. S. 1, 24, 25, 389 
Attorney-General v. Douglass, 195 

Mass. 35, 38, . .327 

■ v. Drohan, 169 Mass. 534, 159, 445 

r. Jamaica Pond Aqueduct Co., 

133 Mass. 361, . . 274, 275 



Attorney-General v. X. Y., N. H. 

& H. R.R. Co., 198 Mass. 413, 

185, 205, 476, 478 

201 Mass. 370, . 474, 483 

V. Old Colony R.R., 160 Mass. 

62,90, 545 

V. Pitcher, 183 Mass. 513, 516, 373 

V. Revere Copper Co., 152 

Mass. 444, . . .275 

V. TiUinghast, 203 Mass. 539, . 327 

V. Trehy, 178 Mass. 186, . 192 

1;. Ware River R.R. Co., 115 

Mass. 400, . .11 

V. Williams, 174 Mass. 476, . 381 

Atwood V. Dumas, 149 Mass. 167, 

169, 373 

Avery v. Tyringham, 3 Mass. 160, . 551 
Baker v. Boston Elevated Ry. Co., 

183 Mass. 178, . . . .377 
Baltimore City v. Starr Church, 

106 Md. 281, . . . .387 
Barbier v. ConnoUy, 113 U. S. 27, . 277 
Batchelder v. Salehi, 4 Cush. 599, . 38 
Behnont v. New England Brick Co., 

190 Mass. 442, . . .197 

Bemis v. Leonard, 118 Mass. 502, . 468 
Bennett v. WeUesley, 189 Mass. 308, 114 
Bent V. Emery, 173 Mass. 495, . 545 
Bigelow V. Caliamet & Hecla Mining 

Co., 167 Fed. 721, . . . 234 
Billings V. Worcester, 102 ^Nlass. 329, 177 
Binney v. Globe National Bank, 

150 Mass. 574, . . . .261 

Blanchard v. Stearns, 5 Met. 298, 

301, 500 

Blood V. Nashua & Lowell R.R., 

2 Gray 137, . .16 

Bloom V. Richards, 2 Oh. St. 387, 

401, . • . . . .421 



CASES CITED. 



XVll 



Boston Electric Light Co. v. Boston 

Terminal Co., 184 Mass. 566, 570, 379 
Boston V. Union Freight R.R. Co., 

181 Mass. 205, . . . .144 
Bowditch V. New England Life Ins. 

Co., 141 Mass. 292, . . .172 
Bowen v. Matheson, 14 Allen 499, 528 
Boyden v. Massachusetts Masonic 

Life .Assn., 167 :Mass. 242, . . 220 

Boylston v. Princeton, 13 Mass. 381, 69 
Braily v. Southboro, 6 Cush. 141, . 176 
Brewer Brick Co. v. Brewer, 62 Me. 

62, 388 

Brickett v. HaverhiU Aqueduct Co., 

142 Mass. 394, . . . .598 

Brodbine v. Revere, 182 Mass. 598, 

600, 602, 603, . 15, 89, 388, 425, 510 
Brooks V. Fitchburg & Leominster 

Ry. Co., 200 Mass. 8, 17, . . 298 
V. West Springfield, 193 Mass. 

190, 432 

Brown v. LoweU, 8 Met. 172, . 298, 594 

V. RusseU, 166 Mass. 14, 25, 26, 

159, 307, 327 
Cambridge v. Trelegan, 181 Mass. 

565, . . . . .87 

Capen v. Foster, 12 Pick. 485, 488, 

500, 501, 510 
Case of Super'S'isors of Elections, 

114 Mass. 247, . . . .222 

Caverly-Gould Co. v. Springfield, 

83 Vt. 396, 403, . . .388 

Chalfont v. State, 37 Ohio St. 60, . 312 
Chamberlain v. Stearns, 111 Mass. 

267, .... 13, 31 

Charlestown v. Gardner et al, 98 

Mass. 587, . . . .38 

Cheney v. Barker, 198 Mass. 356, 

362, .... 376,378 

City Xational Bank v. Charles 

Baker Co., 180 Mass. 40, . . 144 

Cleveland, etc., Ry. Co. v. Illinois, 

177 U. S. 514, . . .239 

Codman v. Crocker, 203 Mass. 146, 

152, 153, 408 

Coe V. Columbus, etc., R.R. Co., 

10 Oiiio 372, . . . .332 



Cohn V. Parker, 41 La. Annual 894, 127 
Cole V. Tucker, 164 Mass. 486, 500, 510 
Commonwealth v. Alger, 7 Cush. 

53, 98, 102, 16, 277, 501, 502, 528 
V. Bearse, 132 Mass. 542, 546, 

549, . 277, 501, 502, 528 
V. Berkshire Life Ins. Co., 98 

Mass. 25, 286 

V. Boston Advertising Co., 188 

Mass. 348, 351, . . .382 
V. Danziger, 176 Mass. 290, 

291, 501 

V. Da\'is, 162 Mass. 510, 511, . 408 

V. Everson, 140 Mass. 292, . 9 

V. Gorham, 99 Mass. 420, . 572 

V. Hamilton Manufacturing 

Co., 12 Allen 298, . . 249, 285 

V. Hunt, 4 Met. Ill, 134, . 528 

V. Interstate ConsoUdated St. 

Ry. Co., 187 Mass. 436, . . 396 

V. Kiley, 150 :Mass. 325, . 572 

V. KimbaU, 105 Mass. 465, 467, 

360, 565 
V. Lancaster Savings Bank, 123 

Mass. 493, . . . .144 

V. Lockwood, 109 Mass. 323, . 572 

V. Morrison, 197 Mass. 199, 

203, 205, .... 378, 384 
V. New England Slate & Tile 

Co., 13 Allen 391, . . .249 
V. People's Five Cent Savings 

Bank, 5 .AJlen, 428, 437, . 287, 386 

V. Rogers, 135 Mass. 536, . 8, 9 

V. Rogers, 181 Mass. 184, 186, 

500, 501 

V. Sisson, 189 Mass. 247, . 510 

V. Smith, 10 -\llen, 448, . 1S6, 333 

V. Tobin, 108 Mass. 426, 429, 

101, 103 

V. Vincent, 108 Mass. 441, . 16 

V. Waterborough, 5 Mass. 257, 155 

V. Wilkins, 121 Mass. 356, . 39 

Connecticut Insm-ance Co. v. Com- 
monwealth, 133 Mass. 161, 166, . 22, 

285, 286 
Conner v. Shepherd, 15 Mass. 164, 532 



XVlll 



CASES CITED. 



PAGE 

( ■ '.-ACS V. Burt, 22 Pick. 422, . 540 
< .ij.'land r. Springfield, 166 Mass. 

49J>, 298 

Coster r. Tide Water Co., 3 C. E. 

Green, 54, 518, . - 541 

Coughlan r. Cambridge, 166 Mass. 

268, .45, 465 

Covington & Lexington Turnpike 

Co. r. Sandford, 164 U. S. 578, 

597, 598, .... 
Crocker r. Old Colony R.R. Co., 137 

Mass. 417, .... 

Crowell r. Cape Cod Ship Canal 

Co., 168 Mass. 157, . 
Cunningham r. Mahan, 112 Mass. 

58, 59, . 
Daly r. National Life Ins. Co., 64 

Ind. 1, 

Davics r. McKeeby, 5 Xev. 369, 
Davis' Case, 122 Mass. 324, . 
Day V. Hurlburt, 11 Met. 321, 

r. LawTence, 167 Mass. 371, 

Delaware, Lackawanna & Western 

R.R. Co. V. Pennsylvania, 198 

U.S. 341, 
Detroit r. Detroit Citizens St. Ry. 

Co., 184 U. S. 368, 398, . 398, 402 
Dobbins v. Commissioners of Erie 

County, 16 Pet. 435, . 299 

Donnell r. Starlight, 103 Mass. 227, 10 
Donworth v. Sawyer, 94 Me. 242, 535 
Dow r. Boidelman, 125 U. S. 680, . 396 
Dowling r. Insurance Co., 92 Wis. 73, 221 
Drake v. Curtis, 1 Cush. 395, . 16 

r. Wells, 11 .\llen, 141, . . 535 

Earle r. Commonwealth, 180 Mass. 

5"9, 506 

East Boston Co. v. Commonwealth, 

203 Mass. 68, . .274 

Ela r. Smith, 5 Gray, 121, . 489, 518 
Emerson r. Trustees of Milton Acad- 
emy, 185 Mass. 414, 415, . . 248 
Ev.inKflical Baptist Society i-. Bos- 
ton, 102 Mass. 412, . .387 
Ez parte Quarg, 149 Cal. 79, 491, 492 
Fargo r. Hart, 193 U. S. 490, 245, 246 
Farwoll r. Boston, 192 Mass. 15, 19, 555 



398 

105 

11 

468 

163 
503 
440 
540 
385 



246 



PAGE 

Fay i: Harlan, 128 Mass. 244, . 572 
Fenno v. Gay, 146 Mass. 118, . 342 

Field V. Clark, 143 U. S. 649, . . 416 

Firemans Fire Ins. Co. v. Common- 
wealth, 137 Mass. SO, . 25 
Fletcher v. Livingston, 153 Mass. 

388, 535 

Flint V. Stone Tracy Co., 220 U. S. 

107, 416 

Frothingham r. Shaw, 175 Mass. 59, 301 
Gage V. TirreU, 9 -\Ilen, 299, 307, . 41 
Galveston, Harrisbxirg, etc., Railroad 

V. Texas, 210 U. S. 217, 226, 245, 246 
Gamble v. Queens County Water 

Co., 123 X. Y. 91, . . . 332 
Gardner v. The Collector, 6 Wall. 

499, 511, 554 

Georgia Railroad & Banking Co. v. 

Smith, 128 U. S. 174, . . 396 

Georgia r. Tennessee Copper Co., 206 

U. S. 230, 237, . . . 599, 603 
Gibbons v. United States, 8 Wall. 

274, 151 

Grace v. Board of Health of Xewton, 

135 Mass. 490, . . .540 

Graham v. Roberts, 200 ^lass. 152, 425 
Grand Lodge v. Xew Orleans, 166 

U. S. 143, 149, .... 387 
Green v. Shumway, 39 X. Y. 418, . 503 
Griffith r. Berkshire Power Co., 158 

Fed. 219, .... 598 

Haberhl f. Boston, 190 Mass. 358, . 384 
Hamilton Mfg. Co. v. Lowell, 185 

Mass. 114, .36 

Hamhn r. Xew Bedford, 143 Mass. 

192, 545 

Hannum v. Tourtellott, 10 -\llen 

494, 468 

Hanscom v. Lowell, 165 Mass. 419, 

77, 381 
Hardy v. Waltham, 7 Pick. 108, . 387 
Harpending v. Haight, .39 Cal. 189, 

556, 558 
Hartwell v. Littleton, 13 Pick. 229, 39 
Harvard College v. Cambridge, 175 

Mass. 145, .... 248 
V. Kettell, 16 Mass. 204, . 387 



CASES CITED. 



XIX 



Harwood v. North Brookfield, 130 

Mass. 561, . . . .266 

Haskell v. Ayers, 35 Mich. 89, . 535 
Hatch V. Reardon, 204 U. S. 152, 

IGO, 399 

Haverhill r. Marlborough, 187 

jMass. 150, . . . .139 

Hayes v. Hall, 188 Mass. 510, 511, 313 
Head v. Amoskeag Mfg. Co., 113 

U. S. 9, 540 

Henry v. Thomas, 119 ^Nlass. 583, 

584, 540 : 

Hewins v. London Assurance Cor- | 

poration, 184 Mass. 177, . 220 j 

Higginson t'. Xahant, 11 Allen 530, 381 ' 
Hoknan v. Townsend, 13 Met. 297, 176 I 
Holt V. City CouncU of SomervUle, i 

127 Mass. 408, . . . .408 

Home Insurance Co. v. New York, 

134 U. S. 594, . . . .249 

Hopkins v. United States, 171 U. S. { 

578, 234 ' 

Horton v. Ipswich, 12 Cush. 488, . 176 
Howe V. Morse, 174 Mass. 491, . 172 
Howes V. Perry, 92 Ky. 260, . . 458 

Hubbard v. Taunton, 140 ]Mass. 

467, .... 381,382 

Hudson Real Estate Co. v. Tower, 

156 Mass. 82, . . . 121 

Hughes V. Berkshire Power Co., 

158 Fed. 219, . . . .598 
Hutch ins v. State Bank, 12 Met. 

421, 104 

Interstate Ry. Co. v. Massachusetts, 

207 U. S. 79, 85, 86, 87, . 389, 390, 
396, 398, 399, 402 
Jaquith v. Wellesley, 171 Mass. 138, 

143, 501 

Jenkins v. Andover, 103 Mass. 94, 76, 

156, 157 
Kansas v. Colorado, 185 U. S. 125, 600 
Kentuck}' v. Dennison, 24 How. 66, 

433, 438 
Ivilty t'. Railroad Commissioners, 

184 Mass. 310, . .513 

King V. Concordia Fire Ins. Co., 140 

Mich. 258, 268, . . .221 



Kingman et al. petitioners, 153 

Mass. 566, . . 161, 305, 505 

Kingman v. Brockton, 153 Mass. 

2.55, . . . 156,381,486 

Kinneen v. Wells, 144 Mass. 497, 

499, 499,500,503,510 

Knight V. Boston, 159 Mass. 551, . 24 
Lake Shore & jSIichigan Southern 

Ry. Co. V. Smith, 173 U. S. 684, 

698, 699, .... 389, 390 
Layden t'. Knights of Pythias, 128 

N. C. 546, . . .164 

Leather Manufacturers National 

Bank t'. Treat, 128 Fed. Rep. 262, 70 
Leavitt v. Cambridge, 120 Mass. 

157, . . . . .35 

V. Leavitt, 135 Mass. 191, 193, 327 

Lentell f. Boston & Worcester St. 

Ry. Co., 202 Mass. 115, 119, . 377 
Little V. Rogers, 1 Met. 108, . . 343 

Loan Association v. Topeka, 20 

WaU. 655, 522 

Loewe i-. Lawlor, 208 U. S. 274, . 234 
Louisville & Nashville R.R. Co. v. 

Kentucky, 161 U. S. 677, . 238, 239 
V. Kentucky, 183 U. S. 503, 

519, 239 

LoweU V. Boston, 111 Mass. 454, . 154, 

161, 162, 305, 486, 487, 505, 522, 540, 542 

V. OMver, 8 AUen, 247, 253, 161, 

305, 380, 486 
Lumbard v. Stearns, 4 Cush. 60, . 109 
Lyons v. Woods, 153 U. S. 649, 663, 554 
Mahoney v. Boston, 171 IVIass. 427, 164 

V. Fitzpatrick, 133 ]Mass. 151, 523 

Maine v. Grand Trunk Ry. Co., 142 

U. S. 217, . . .246 

Major V. Hohnes, 124 Mass. 108, 120, 261 
Malcohn v. Boston, 173 Mass. 312, 168 
Manufacturers Ins. Co. v. Loud, 99 

Mass. 146, . . .249 

Manville Co. v. Worcester, 138 

:Mass. 89, 600 

MarteU v. VThite, 185 Mass. 255, 

260, .... 528,529 

Massachusetts Agricultural College 

V. Marden, 156 Mass. 150, 156, . 311 



XX 



CASES CITED. 



Massachusetts Society for Preven- 
tion of Cruelty, etc. i'. Boston, 

142, Mass. 24, . .13 

Massachusetts Western Union Tele- 

praph Co., 141 U. S. 40, . . 245 

McAuley v. Boston, 113 Mass. 503, 176 
McDonald v. Union Freight Railroad 

Co., 190 Mass. 123, . .144 

McGowan v. Boston, 170 Mass, 384, 176 
McNichols V. Pease, 207 U. S. 100, 435 
Mead v. Acton, 139 Mass. 341, 344, 

1.00, 161, 305, 486, 487 
Meands v. Park, 95 Me. 527, . 421 
Melcher v. Boston, 9 Met. 73, . 301 
Merrick v. Amherst, 12 Allen, 500, 

76, 77, 157, 382, 388 
MetropoUtan Life Ins. Co. v. 

Commonwealth, 198 Mass. 466, 285 
Miller v. Fitchburg, 180 Mass. 32, 

37, 543 

Minneapolis v. Minneapolis St. Ry. 

Co., 215 U. S. 417, 434, . 398, 402 
Minneapolis & St. Louis R.R. Co. v. 

Minnesota, 186 U. S. 257, . . 396 

Minot V. \\inthrop, 162 Mass. 113, 

124, .... 285,386 

Missouri v. Illinois, 200 U. S. 496, 

521, . 599,600,602 

Missouri Pacific Railway v. Larrabee 

Mills, 211 U. S. 612, 621, . . 239 

Monies v. Lynn, 121 Mass. 442, . 175 
Monongahela Navigation Co. v. 

United States, 148 U. S. 312, .545 
Montague & Co. v. Lowry, 193 

U. S. 38, 234 

Morris v. Callanan, 105 Mass. 129, 533 
Moses V. LawTence County Bank, 

149 U. S. 298, 302, . .343 

Mt. Hermon Boys School v. Gill, 

145 Mass. 139, . .13, 248 

Mt. Hope Cemetery v. Boston, 158 

Mas.s. .509, 511, .408 

MuUiall V. Fallon, 176 Mass. 266, 

267, 601 

Munklcy v. Iloyt, 179 Mass. 108, 73, 571 
NoLson V. State Board of Health, 186 

•Mass. 330, .... 304 



545 



376 



13,31 
108 

59S, 599 
La. 

. 127 



Newburj'port Water Co. v. Xew- 
buryport, 85 Fed. Rep. 723, . 

New England Telephone & Tele- 
graph Co. V. Boston Terminal 
Co., 182 Mass. 397, 399, . 

New England Theosophical Society 
V. Boston, 172 Mass. 60, . 

New Hampshire v. Louisiana, 
U. S. 76, . 

New Orleans v. Arthurs, 36 
Ann. 98, . 

New York Life Ins. Co. v. Hardison, 
199 Mass. 190, . . . 220, 221 

Nimbus (The), 137 Mass. 360, . 11 

Northampton v. County Commis- 
sioners, 145 Mass. 108, . 295,387 

Northern Securities Co. v. United 
States, 193 U. S. 197, . . 234 

Northside Railway Co. v. Worthing- 
ton, 88 Tex. 562, 

Noyes v. Hale, 137 Mass. 266, 

O'Hanlan v. Denvir, 81 Cal. 60, 

O'Keefe v. Somerville, 190 Mass 
110, 

Old Dominion Copper Co. v. 
Bigelow, 188 Mass. 315, 321, 329, 313 

203 Mass. 159, 177, 178, . 313 

OUver V. Gale, 182 Mass. 39, . 197 

V. Washington Mills, 11 Allen, 

268, 275, .... 286, 295 

O'Neil V. Insurance Co., 166 Pa. St. 
77, 

Opinion of the Justices, 13 Allen, 
594, . .• . 

5 Met. 591, 592, . 

99 Mass. 636, 

107 Mass. 604, 

115 Mass. 602, 

117 Mass. 603, 

135 Mass. 594, 

136 Mass. 578, 

150 Mass. 586, 591, 592, 109, 446 

155 Mass. 598, 601, 109, 486, 540 

160 Mass. 586, 590, 88, 388, 425 

165 Mass. 599, . . .446 

166 Mass. 589, . . 159, 307 

175 Mass. 602, . . .152 



332 
266 
535 

528 



221 

228 
500 
555 
446 
446 
549 
555 
446 



CASES CITED. 



XXI 



Opinion of the Justices, 182 Mass. 

605,607, . . . 110,540,546 

186 Mass. 603, 605, . 161, 162, 

486, 505 

190 Mass. 611, 613, 161, 486, 505 

195 Mass. 607, 608-9, 614, 287, 

294, 300, 302, 386, 41] 

204 Mass. 607, 611, . .380 

208 Mass. 610, . . . 442 

209 Mass. 607, . . .569 

45 N. H. 607, 610, . . 558 

66 N. H. 629, . . .545 

Owensboro National Bank v. Owens- 

boro, 173 U. S. 664, 669, 410, 411 
Paine v. Woods, 108 Mass. 160, . 274 
Parker v. Barnard, 135 Mass. 116, 101 

V. Kane, 4 AUen, 346, . .261 

V. Nickerson, 112 Mass. 195, 

196, 313 

V. Nickerson, 137 Mass. 487, 

497, 313 

Pearsall v. Great Northern Ry. Co., 

161 U. S. 647, . . . .239 
People V. Hawkins, 157 N. Y. Rep. 1, 496 
V. Horn Silver Mining Co., 

105 N. Y. 76, . . . . 256 

V. Steele, 231 111. 340, . .491 

Perry v. Bangs, 161 Mass. 35, 36, . 322 
Peterson v. Chicago, Rock Island & 

Pacific Ry. Co., 205 U. S. 364, 

391, 418 

PhiUips Academy v. Andover, 175 

Mass. 118, . . . . 387 

PhiUips V. Boston, 150 Mass. 491, . 167 
Phoenix Ins. Co. v. Perkins, 19 So. 

Dak. 59, 221 

Pierce v. Creecy, 210 U. S. 387, . 437 
Pittsburg, etc., Ry. Co. v. Backus, 

154 U. S. 421, 428, . . .247 

Plant V. Woods, 176 Mass. 492, 501, 528 
Pollock V. Farmers Loan & Trust 

Co., 157 U. S. 429, . . 300, 301 

158 U. S. 601, . 300, 301 

Portland Bank v. Apthorp, 12 Mass. 

252, .... 28.5,286 

Proprietors "of Mills v. Common- 
wealth, 164 Mass. 227, . .17 



Provident Savings, etc., Society v. 

Cutting, 181 Mass. 261, . . 220 

Pullman Car Co. v. Missouri Pacific 

Co., 115 U. S. 587, . . .418 
Purinton v. Jararock, 195 Mass. 187, 124 
Quatsoe v. Eggleston, 42 Ore. 315, 585 
Quinn v. Fire Association, 180 Mass. 

560, 220 

Raih-oad Co. v. Maryland, 21 Wall. 

456, 239 

Raymond v. Lowell, 6 Cush. 524, 176 
Rice V. Bradford, 180 Mass. 545, . 387 
Richards v. Barlow, 140 Mass. 218, 523 
Richmond Iron Works v. Wadhams, 

142 Mass. 569, . . . .532 

Rison V. Farr, 24 Ark. 161, . . 503 

Roberts v. Reilly, 116 U. S. 80, 97, 437 
Robinson's Case, 131 Mass. 376, . 445 
Rockport V. Webster, 174 Mass. 385, 450 
Round V. Police Commissioner, 197 

Mass. 218, . . . . 356 

Rutland v. Brister, 53 Miss. 683, . 106 
Savannah & C. R. Co. v. Callahan, 

49 Ga. 506, 511, . . .421 

Sawyer v. State Board of Health, 

125 Mass. 182, 192, . . .87 

Sears v. Crocker, 184 Mass. 586, 588, 

376, 377 
Shattuck V. Gragg, 23 Pick. 88, . 534 
Shawnee Compress Co. v. Anderson, 

209 U. S. 423, . . . 234, 237 

Sherman v. Tobey, 3 AUen, 7, . 540 
Shiffer v. Broadhead, 126 Penn. St. 

260, 535 

Silver v. Ladd, 7 WaU. 219, . . 95 
Slater v. Jepherson, 6 Cush. 129, . 533 
Smith V Dedham, 8 Cush 522, . 176 

V. Dedham, 144 Mass. 177, . 328 

Smyth V. Ames, 169 U. S. 466, . 396 
V. Ames, 171 U. S. 361, 365, . 397 

V. PhiUips Academy, 154 

Mass. 551, . . .590 

Soon Hing v. Crowley, 113 U. S. 703, 277 
Southboro v. Marlboro, 24 Pick. 166, 115 
Sprague v. Dorr, 185 Mass. 10, . 304 

V. Minon, 195 Mass. 581, 

304, 450 



xxu 



CASES CITED. 



144 
541 

530 
529 
458 

458 



Springfield v. Springfield St. Ry. 

1S2 Mass. 41, . 
State V. Bhikc, 7 Vroom 447, . 
V. Central Lumber Co., 24 So 

Dak. 136, 

y. Drayton, 82 Nebr. 254, 

V. Speidel, 62 Ohio St. 156, 

V. Walsh, 7 Mo. App. 142, 

Stone i;. Charlestown, 114 Mass. 214, 388 
V. Farmers Loan & Trust Co., 

116 U. S. 307, 325, 331, . 389, 397 

t'. Heath, 179 Mass. 385, 88, 197 

V. Hubbardston, 100 Mass. 49, 176 

Stover V. Hamilton, 21 Gratt (Va.) 

273, 342 

Strout V. Harper, 72 Me. 270, . 534 
Stults V. Silva, 119 Mass. 137, . 523 
Sullivan v. Boston, 198 Mass. 119, 336 
Swift & Co. V. United States, 196 

U. S. 375, .234 

Taft V. Adams, 3 Gray, 126, . . 549 
Talbot V. Hudson, 16 Gray, 417, 

540, 541, 543 
Taunton r. Warcham, 153 Mass. 192, 115 
Teasdale v. Newell, etc.. Construc- 
tion Co., 192 Mass. 440, . . 266 
Third National Bank of Louisville 

V. Stone, 174 U. S. 432, . 410 

United Hebrew Association v. 

Benshimol, 130 Mass. 325, . 28, 32 
United States v. Allen, 36 Fed. 174, 554 
V. American Tobacco Co., 164 

Fed. 700, .... 234, 237 

V. E. C. Knight Co., 156 U. S. 1, 234 

V. Joint Traffic Association, 

171 U. S. 505, . . . 234, 235 

V. Martin, 94 U. S. 400, . 62 

V. Realty Co., 163 U. S. 427, 

440 506 

V. Trans Missouri Freight 

Assn., 166 U. S. 290, . .234 

V'cgelahn v. Gunter, 167 Mass. 92, 528 
Vose i;. Deane, 7 Mass. 280, . . 167 

Wabash, St. Louis & Pacific R.R. 

Co. V. Illinois, 118 U. S. 557, . 396 



PAGE 

Wales V. Belcher, 3 Pick. 508, . 549 
Walker v. Cronin, 107 Mass. 555, 529 
Wall V. Piatt, 169 Mass. 398, . 465 

W' ashington National Bank v. 

WilUams, 188 Mass. 103, . .171 

Waterman v. Johnson, 13 Pick. 261, 274 
Way V. Smith, 111 Mass. 523, . 523 
Webb V. To^Tisend, 1 Pick. 21, . 532 
Weld V. Gas & Electric Light Com- 
missioners, 197 Mass. 556, 558, . 419 
Wesleyan Academy v. Wilbraham, 

99 Mass. 599, 604, . . 13, 248 

Western Union Telegraph Co. v. 

Massachusetts, 125 U. S. 530, . 245 
Weston V. City Council of Charles- 
town, 2 Peters, 449, . . .300 
West Roxbvu-y v. Stoddard, 7 Allen, 

274, 274 

White V. Creamer, 175 Mass. 567, . 73 

V. Cutler, 17 Pick. 248, . 532, 533 

V. Foster, 102 Mass. 375, . 535 

V. WUUs, 7 Pick. 143, . . 532 

Wilcox V. County Commissioners, 

103 Mass. 544, . . . .301 
Williams v. Johnson, 208 Mass. 544, 505 

V. Lawrence, 113 Mass. 506, . 176 

V. Parker, 188 U. S. 491, . 381 

V. Whiting, 11 Mass. 424, . 500 

Wilson V. State, 17 Tex. App. 393, . 535 
Wisconsin & Michigan R.R. Co. v. 

Powers, 191 U. S. 379, 
Wisconsin, Minnesota & Pacific 
Railroad v. Jacobson, 179 U. S. 

287, 297, 

Wood V. Allen, 111 la. 97, . 
Worcester v. Boston, 179 Mass. 41, 

V. Garno, 182 Mass. 243, 

V. Marchant, 14 Pick. 510, 

Wright V. Dresser, 140 Mass. 147, 

149, 

Wurts V. Hoagland, 114 U. S. 606, 540 
Wyeth V. Cambridge Board of 

Health, 200 Mass. 474, . . 425 

Yick Wo V. Hopkins, 118 U. S. 356, 278 



246 



239 
127 
25 
535 
290 

250 



OPINIONS 

OF 

DANA MALONE, ATTOENEY-GENERAL. 



Public Officer — Resignation — Acceptance — Governor 
— Executive Council. 

The resignation of a public officer, appointed, with the advice and consent of the 
Council, by the Governor, becomes effective upon acceptance by the Gov- 
ernor without further action thereon by the Executive Council. 

I have the honor to acknowledge the receipt of your letter of 
the 18th, in which you inform me that at a meeting of the Exec- 
utive Council, held January 17, — 

It was voted that the opinion of the Attorney-General be asked as to 
whether action by the Executive Council is necessarj^ upon the matter 
of the acceptance of the resignation of an official appointed by His Excel- 
lency the Governor and confirmed by the Executive Council. 

That such officer has the absolute right of resignation, sub- To the 
ject to the acceptance thereof by the proper authority, appears i906 

,,.... . «/xi January 24. 

to be the prevading doctrine in the United States, and the right 

of resignation is recognized in the statutes and also in practice. 
In my opinion it is the law in this Commonwealth that an ap- 
pointive officer may resign his office, and that such resignation 
becomes effective upon its acceptance by the appointing power. 
That being the law, it remains to be determined whether or not 
the Executive himself is the appointing power, or whether the 
power of appointment created by statute in any particular case 
is shared by the Executive Council. 



OPINIONS OF THE ATTORNEY-GENERAL. 

The Constitution of the Commonwealth defines the scope and 
the (hity of the Council as follows (chapter II., section III., 
article I.): — 

There shall be a council for advising the governor in the executive part 
of the government, ... and the governor, with the said councillors, 
or five of them at least, shall and may, from time to time, hold and keep 
a council, for the ordering and directing the affairs of the commonwealth, 
according to the laws of the land. 

The power of the Governor to appoint is mentioned in the 
Constitution only in connection with judicial officers, as enumer- 
ated in chapter II., section I., article IX., which says that such 
officers "shall be nominated and appointed by the governor, by 
and with the advice and consent of the council." The appoin- 
tive power, has however, been repeatedly vested in the Gov- 
ernor by the Legislature. 

In the case of removals from office, it seems that an oflScer 
appointed by the Governor, with the advice and consent of the 
Council, cannot be removed by the Executive alone, and that 
the consent of the Council is equally necessary for such action 
upon the part of the Executive. The removal of a public offi- 
cer, however, is clearly to be distinguished from his voluntary 
resignation; and if he possesses an absolute right to resign, sub- 
ject to acceptance by the appointing power, the resignation 
becomes effective upon such acceptance, without action on the 
part of any official body whose approval may be required either 
for appointment or removal. 

It is clear that the Governor is the appointing power, and a 
resignation tendered to and to be accepted by him becomes 
effective u])on .such acceptance, without any action upon the 
l)art of the Council; and that the Constitution does not con- 
template, and probably does not authorize, any action by the 
Council beyond its approval of an appointment or concurrence 
ill a removal made by the Executive. 

I am therefore of opinion that no action by the Executive 
Council is necessary upon the matter of the acceptance of the 
resignation of an official appointed by His Excellency the Gov- 
ernor and confirmed by the Executive Council. 



DANA M ALONE, ATTORNEY-GENERAL. 



District, Police and Municipal Courts — Justices and 
Clerks — Salaries — Readjustment — County 
Treasurer — Franklin County. 

St. 1904, c. 453, which established the salaries of the justices, clerks and assistant 
clerks of certain district, police and municipal courts upon a basis of popula- 
tion, expressly excepted from such classification the justices and clerks of 
the district courts of Franklin County, and such exception was not affected 
by St. 1905, c. 339, providing for a readjustment of such salaries bj' the county 
treasurers of the several counties, after the taking of the decennial census of 
the year 1905. 

It follows, therefore, that the treasurer of the county of Frankhn is not authorized 
to readjust the salaries of the officers of the district courts of such county 
upon any basis of population. 

I beg to acknowledge the receipt of vour favor of the 19th, xothe 

r. 1 1- /-. • Controller 

enclosing a letter from the treasurer of Franklin Coiintv, m of county 

'^ ^ ■- Accounts. 

which he states that he has readjusted the salaries of the officers j^.^^^ 30 
of the district courts of that county, and submits the question 
whether his action as stated will meet with your approval. 
You ask my opinion as to his duties under St. 1905, c. .339, § 1, 
taken in connection with St. 1904, c. 453, 

St. 1904, c. 453, was an act to establish the salaries of the 
justices, clerks and assistant clerks of certain police, district and 
municipal courts. By section 1 the' district, police and munic- 
ipal courts, other than the municipal court of the city of Bos- 
ton, were divided into ten classes, according to population, for 
the purpose of determining the salaries of the oflBcers thereof, 
and in each case the districts affected were included under 
the appropriate class, as, for instance, Class G, which is as 
follows : — 

Courts whose judicial districts have a population of from twenty 
thousand to thirty thousand, to wit, the fii'st district court of southern 
Worcester, the district court of central Berkshire, the district court 
of northern Berkshire, the first district court of northern Worcester, 
the fourth district court of Bristol, the second district court of eastern 
Worcestei, the district court of western Worcester, the district couit 
of western Norfolk and the first district court of southern Middlesex; 
salaries: — Justice, fifteen hundred dollars; clerk, nine hundred dollars. 

Section 2 of this act is as follows: — 



OPINIONS OF THE ATTORNEY-GENERAL. 

The justices and clerks of the district courts in the county of Franklin 
shall receive from said county annual salaries as follows: — The justice 
of the district court of Franklin, fifteen hundred dollars; the clerk, nine 
hundied dollars; the justice of the district couit of eastern Franklin, 
eight hundred dollars; che clerk, four hundred and eighty dollars. 

The justice and clerk of the district court of eastern Hampshire shall 
receive from the county of Hampshire aimual salaries as follows: — 
Tlie juscice, one thousand dollars; the clerk, six hundred dollars. 

It ai>pears, therefore, that the justices and clerks of the dis- 
trict courts in the county of Franklin, as well as the justice and 
clerk of the district court of eastern Hampshire, were excepted 
from the classification established by section 1, and were not 
aflPected by its provisions with regard to population. 

St. 1905, c. 339, § 1, provides for a readjustment of salaries 
after the taking of the decennial census of the year 1905, "so 
as to correspond with the schedule of salaries provided for by 
chapter four hundred and fifty-three of the acts of the year 
nineteen hundred and four." This readjustment is to be made 
in each case by the county treasurer of the county concerned, 
in accordance with the provisions of the chapter above referred 
to. 

Acting under this statute, the county treasurer of the county 
of Franklin has made a readjustment of the salaries of the offi- 
cers of the district courts of that county, and now desires to be 
informed by you whether or not such readjustment is to be 
approved by you. 

I am of opinion that St. 1905, c. 339, cannot be construed to 
amend St. 1904, c. 453, except in so far as the classification of 
si)ccified districts in the classes established by section 1 may be 
changed by the new basis of computation. The obvious pur- 
l)ose of the act is to provide that instead of the previously 
existing tables of population the later tables established by the 
census of 1905 are to be used in determining what special dis- 
tricts are to be included under any of the ten classes. The 
Legislature has, however, seen fit to exclude the county of 
Franklin and one district in the county of Hampshire from the 
provisions of section 1, and to establish fixed salaries for the 



DANA MALONE, ATTORNEY-GENERAL. 

court officers included within the act, which are not affected by 
population. In my opinion this provision remains unchanged 
by the enactment of St. 1905, c. 339, and it must follow, there- 
fore, that the treasurer of the county of Franklin was not au- 
thorized to readjust the salaries of the officers of the district 
courts upon any basis of population. 



Constitutional Law — Governor — Petition for Pardon 
— Executive Council. 

The Governor maj-, in his discretion, refuse to refer to the Executive Council a 
petition for pardon or a petition for commutation of the death penalty. 

I have the honor to acknowledge the receipt of your favor to the 
of the 24th, in which you ask whether the Governor, in his ' i9og 
discretion, has the constitutional right to refuse to refer a peti- — - 
tion for pardon to the honorable Council, in case he deems it 
should not be granted, and also whether he has a right to refuse 
to refer a petition for the commutation of the death penalty, 
in case he believes such commutation should not be granted; 
and I beg leave to say that the Constitution of Massachusetts, 
part the second, chapter II., section I., article VIII., provides: — 

The power of pardoning offences . . . shall be in the governor, by 
and with the advice of council. 



The power to commute is an incident of the power to pardon; 
it is pardoning upon condition of the convict's voluntary sub- 
mission to a lesser punishment. The two questions may, there- 
fore, be answered together, as they are both governed by the 
language in the Constitution above quoted. Power to pardon 
under that provision lies solely with the Governor, by and with 
the advice of the Council. 

I am of opinion that the Governor may refuse to refer to the 
Council a petition for pardon or a petition for commutation of 
the death penalty. By the Constitution of Massachusetts, part 
the second, chapter II., section I., article IV.: — 



To th« 
S«nat«. 



OPINIONS OF THE ATTORNEY-GENERAL. 

The governor shall have authority, from tune to time, at his discretion, 
to assemble and caU together the councillors of this commonwealth for 
the time being; and the governor with the said counciUors, or five of 
them at least, shaU. and may, from time to time, hold and keep a council, 
for the ordering and directing the affairs of the commonwealth, agreeably 
to the constitution and the laws of the land. 

If he desires their advice he may call them together and take 
it. If he does not desire their advice, he is not obliged to take 
it unless he proposes to act upon it after he has taken it. 

A former Attorney-General has ruled that the Governor may 
refuse to pardon a convict although the pardon is recommended 
by the Council, and said: — 

The Council has no pardoning power. The Governor, it is true, cannot 
exercise the power of pardon vested in him excepting by the advice oi 
the Council. But he cannot be directed by that body to" exercise the 
power; for, if he could be, the power would be in the Council and not 
in him, and he would be a ministerial officer only to execute the power 
so vested in that body. The power to pardon necessarily imports the 
right to refuse pardon. (1 Op. Atty.-Gen. 199.) 



IxToxiCATixG Liquors — Inxholder — "Open" or "Public 

Bar." 

An "open" or "public bar" is a bar or counter kept and maintained principally 
if not exclusively for the sale of intoxicating liquor's under any one of the first 
three classes of licenses enumerated in R. L., c. 100, § IS, to be drunk at such 
bar or counter when furnished, such bar or counter being open to the public 
so that all persons not excepted by the pro-visions of R. L., c. 100, § 17, cl. 4, 
may have access thereto, and may obtain liquor for immediate consumption. 

An innholder who maintains an inn or hotel may, under the laws of this Common- 
wealth, have upon his premises a bar which is not within the above definition 
an "open" or "public bar." 



I have the honor to acknowledge the receipt of an order 
Febru*ry 8. adopted by the honorable Senate on the sixth day of February, 
190G, requiring the opinion of the Attorney-General upon the 
following: — 

Ordered, That the Senate request of the Attorney-General his opinion 
on the following question: Under the laws now in force, can a hotel in the 
Commonwealth legally have a bar which is not a public or open bar? 



DANA MALONE, ATTORNEY-GENERAL. 

R, L., c. 100, § 18, establishes five classes of licenses which 
are material to the present question. These are as follows: — 

First class. To sell liquors of any kind, to be drunk on the premises. 

Second class. To sell malt liquors, cider and light wines containing not 
more than fifteen per cent of alcohol, to be drunk on the premises. 

Third class. To sell malt liquors and cider, to be drunk on the premises. 

Fourth class. To sell liquors of any kind, not to be drunk on the 
premises. 

Fifth class. To seU malt .liquors, cider and light \\ines containing riot 
more than fifteen per cent of alcohol, not to be drunk on the premises. 

Section 17, cl. 7, of the same chapter, prescribes conditions 
which shall be attached to licenses issued by authority of chap- 
ter 100. These conditions establish that each license of the 
first three classes shall be issued only to persons holding licenses 
either as innholders or as common victuallers, but from the 
language of the second paragraph of clause 7, which deals with 
the first five classes, it may fairly be assumed that the statute 
contemplates that an innkeeper may also hold a license either 
of the fourth or fifth class from the following language; "but an 
innkeeper shall not upon such holiday sell, give away or deliver 
intoxicating liquor in his inn under a fourth or fifth class 
license."" 

If an innkeeper holds a license under either the fourth or fifth 
classes, he would be authorized to sell liquors not to be drunk 
on the premises, but he would necessarily have a place where 
such liquors were kept, stored and sold. 

A bar is defined by the Century Encyclopedia and Diction- 
ary as ''that portion of a tavern, inn, coffee-house or the like, 
where liquor, etc., are set out. A counter over which articles 
are served in such an establishment.'' Such a place for the 
keeping or selling of liquors not to be drunk on the premises 
would not, in my opinion, constitute a public bar, although it is 
clearly within the definition of a bar. That a distinction 
existed between the word "bar" and the term "public bar" is, 
I think, shown by the provision which formerly existed in 
Pub. Sts., c. 100, § 9, cl. 5, which provided that: — 



OPINIONS OF THE ATTORNEY-GENERAL. 

Each license of the first, second and tliird classes [identical with the 
first three classes enumerated in R. L., c. 100, § 18] shall be subject to the 
further condition that the licensee shall not keep a public bar and shall 
hold a lironso as an innholder or common victualler. 



Under this statute, the court, in Commonwealth v. Rogers, 
135 jMass. 536, at p. 539, defined the term "public bar" as fol- 
lows : — 

It was doubtless the purpose of the Legislature, in requiring that a 
license to sell liquors, to be drunk on the premises, shall be subject to 
the "condition that the licensee shall not keep a public bar, and shall 
hold a license as an innholder or common victualler," to discourage to 
some extent the sale of hquor to be drunk on the premises, except in 
connection with meals or lunches. Pub. Sts., c. 100, § 9, cl. 5. This 
consideration is entitled to some weight in determining the meaning of 
the term "pubhc bar" as used in the statute. 

It would certainly be difficult, and probably impossible, to define with 
absolute precision the meaning of the term "public bar," so as to include 
e\'er3i;hing that would, and exclude ever^-thing that would not, constitute 
such a bar, though under any given state of facts it might not be difficult 
to determine whether or not they constituted such a bar. 

Such a bar must obviously be something at which liquors are sold, 
to be drunk on the premises; and it is equally obvious that everj^hing 
at which liquors are so sold is not necessarily such a bar; for the purpose 
of the license is to authorize such sales, unless made in a certain manner. 
In a somewhat general way, a public bar may be defined as a counter, 
table, shelf or other similar device, designed ancl used for the purpose 
of facilitating the sale and delivery of liquors there kept to any one who 
may apply for them, to be then and there drunk, not in connection with 
meals, lunches or food. A lunch counter, designed and used for furnishing 
lunches, would not be such a bar merely because sales of liquor only are 
.sometimes mrde there. 

It would seem that in this opinion the court goes even further 
in distinguishing between a bar and a public bar, in stating that 
"a lunch counter, designed and used for furnishing lunches, 
would not be such a bar [public bar] merely because sales of 
liquor only are sometimes made there." It would follow, there- 
fore, that an innholder holding a license of the first class might, 
m connection with a restaurant, maintain a bar or counter at 



DANA MALONE, ATTORNEY-GENERAL. 

which food was furnished, and over which liquors were sold, 
generally in connection with food, but sometimes without food, 
and would not be maintaining a public bar, though he might 
well be held to be maintaining a bar. The distinction seems to 
be whether or not the principal business conducted at a bar or 
counter is the sale of liquors without food, or whether the sale 
of liquors is merely incidental to the business of furnishing food. 
Commonwealth v. Everson, 140 Mass. 292; Commonwealth v. 
Rogers, 135 Mass. 536. 

The term "open bar" has never been defined by our courts, 
but I am of opinion that it is synonymous with the term "pub- 
lic bar," and that a public bar may, for the purposes of this in- 
quiry, be defined as a bar or counter kept or maintained princi- 
pally, if not exclusively, for the sale of liquors under any one 
of the first three classes of licenses enumerated in R. L., c. 100, 
§ 18, to be drunk at such bar or counter when furnished, such 
bar or counter being open to the public so that all persons not 
coming within the exceptions enumerated in section 17, clause 4, 
might have access thereto, and might obtain, for the purposes 
of immediate consumption, such liquor as they desire. I am 
also of opinion that an innholder w'ho maintains a hotel or inn 
may, under the laws of this Commonwealth, have a bar upon 
his premises which is not, within the above definition, a public 
bar. 



County Commissioners — Contracts — " Construction of 
Public Works" — Notice — Posting and Publication. 

The words "construction of public works," as used in R. L., c. 20, § 27, providing 
in part that all contracts made by the county commissioners for the construc- 
tion of public works, if exceeding $800 in amount, shall be made in writing 
and after posting and publication of notice as therein prescribed, do not 
require that notice of proposals for the emplojTuent of architects to prepare 
plans shall be posted and published. 

I beg to acknowledge the receipt of vour request of January To the 

'^ '^ 1 - -^ - Controller 

IS, asking my opinion as to whether the emplovment of archi- of county 

' o ^ r tr ^ ^ Accounts. 

tects to prepare plans for the construction of public works is p^bJuaryo. 
included within the provisions of section 27 of chapter 20 of 



10 OPINIONS OF THE ATTORNEY-GENERAL. 

tlie Kcvised Laws; that is, whether it is required that notices 
for proposals for the drawing of plans for such work shall be 
posted and published. 

R. L., c. 20, § 27, provides: — 

All contracts made by them for building, altering, furnishing or repair- 
ing public buildings, or for the construction of pubUc works, or for the 
purchase of suppUes, shall, if exceeding eight hundred dollars in amount, 
be made in wTiting, after notice for proposals therefor has been posted 
in a conspicuous place in the county coui't house for at least one week 
and has been pubUshed at least three times in a newspaper, if any, pub- 
Ushcd in the city or town interested in the work contracted for; otherwise 
in the newspaper of the most general circulation in the county. They 
shall, in each case, make and file with the county treasurer a certificate 
under oath of such publication and posting. All proposals shall be 
publicly opened in the presence of a majority of the county commissioners 
and recorded in their records. In an emergency, repairs may be contracted 
for without such advertisement or posting. They shall certify to the 
exigency upon the orders to the county treasurer for pa3mient of all bills 
for such repairs. All contracts made under the provisions of this section, 
and all changes in, or additions to, or agreements or orders for extras 
under, such contract, shall be in writing and recorded in a book kept 
for the purpose with the records of the county. No contract made in 
violation of the provisions of this section shall be vahd against the county, 
and no paJ^nent thereon shall be made by the county. The commis- 
sioners may, however, cause county buildings to be repaired by day 
work, if, in the judgment of the board, expressed in a vote, the best 
interests of the county require; but no bill in excess of eight hundred 
dollars for repairs done by day work shall be paid by the county treasurer 
unless, upon or with the bill, the clerk of the county commissioners has 
certified that such vote is entered upon their records. 

The sole question raised is as to the meaning of the phrase 
"construction of public works." This phrase is susceptible of 
two interpretations: it may include work of every kind which 
has any connection, direct or indirect, with the construction of a 
public work, or it may include only actual building operations 
in accordance with a plan already prepared. The words "con- 
structed" and "construction" as used in other statutes have 
been before the court for interpretation. See Donnell v. Star- 
Ughl, 103 Mass. 227; Attorney-General v. Ware River Railroad 



DANA MALONE, ATTORNEY-GENERAL. 11 

Co., 115 Mass. 400; McDonald v. The Nimbus, 137 Mass. 360; 
Crowell V. Caye Cod SJiip Canal Co., 168 Mass. 157. 

These decisions, however, furnish Httle assistance in the pres- 
ent inquiry. In Crowell v. Cape Cod Ship Canal Co., supra, 
the question was, what was meant by the words "all claims for 
labor performed or furnished in the construction of said canal"? 
It became necessary to determine whether or not the services of 
the president and clerk of the corporation, the chief engineer, 
the assistant engineer and a clerk of the chief engineer were in- 
cluded within this expression. The court decided that these 
services were not so included, and in the opinion said: — 

Presumably an important part of the services rendered in the engineer- 
ing department were in locating the canal before beginning the work of 
construction. 

But pointed out that the statute made a distinction between 
locating and constructing in the phrase "said canal company 
may locate but shall not begin to construct said canal" before 
making the deposit required by the statute. There is not in the 
language of R. L., c. 20, § 27, any such clear indication of a 
limitation upon the meaning of the word "construction." It 
seems, however, that the meaning of the word as so limited is 
the more natural one, and, consequently, that in the absence of 
some special reason for adopting another meaning this meaning 
is to be adopted. Not only is there no reason for departing 
from the more usual interpretation, but there is reason to con- 
clude that the Legislature intended to use the word in its more 
natural and restricted meaning. 

When plans and specifications for construction have been pre- 
pared, proposals for furnishing labor and material can be read- 
ily made, since the requirements to be complied with can be 
definitely stated. When, however, only the general nature of 
the work contemplated has been determined upon, proposals for 
drawing the plans for such work cannot be so readily made, 
since the requirements cannot be definitely stated. In the ab- 
sence of language which compels an inclusion of the prepara- 
tion of plans among those things which may be contracted for 



12 OPINIONS OF THE ATTORNEY-GENERAL. 

onlv after notice for proposals has been posted and published, it 
is not to be assumed that the Legislature intended it to be so 

included. 

I am therefore of opinion that the words "construction of 
public works" were used by the Legislature with the intention 
that they be narrowly construed, and that the statute does not 
require that notice for proposals for the employment of archi- 
tects to prepare plans shall be posted and published. 



To the Houae 
Committee on 
Bills in the 
Third 
Roadinc. 
1!)0« 
February 14. 



Charitable Corporation — Special Charter — Increase 
IN Holdings of Real and Personal Property. 

a corporation chartered under a special act, for the purpose of providing for the 
support of aged, destitute women not otherwise provided for, may increase 
its holdings of real and personal property under the general provision of R. L., 
c. 125, § 8, authorizing any corporation organized under general or special 
laws for educational, charitable, benevolent or religious purposes to hold 
real or personal estate to an amount not exceeding $1,500,000, provided that 
the charter of such corporation contains no provision inconsistent therewith. 

I beg to acknowledge receipt of your favor of the 8th in 
reference to House Bill No. 208 and Senate Bill No. 15, of the 
current year, in which you inquire whether the corporations 
mentioned therein, namely, the Trustees of Monson Academy and 
the Association for the Relief of Aged and Destitute Women 
in Salem, "are empowered by general law to increase their 
holdings of real and personal estate to the extent specified in 
the said bills, so that the legislation embodied in these bills 
would be superfluous." Your letter further states that: — 

It is understood, and is made a part of the question herewith submitted, 
that a yearly fee for tuition is charged by the Monson Academy, and that 
a fee, or lump sum, for the admission of inmates is charged by the Associa- 
tion for the Relief of Aged and Destitute Women in Salem; but in neither 
case is the fee equal to the expenditure made necessary by the admission 
of a scholar in the one case, or of an inmate in the other. 



R. L., c. 12.5, § 2, provides that a corporation may be formed 
by authority of the chapter, "for any educational, charitable, 
benevolent or religious purpose." 



DANA MALONE, ATTORNEY-GENERAL. 13 

Section 8 provides: — 

Any corporation organized under general or special laws for any of the 
purposes mentioned in section two and under sections thirteen to sixteen, 
inclusive, maj^ hold real and personal estate to an amount not exceeding 
one million five hundred thousand dollars, which shall be devoted to the 
purposes set forth in its charter or agreement of association, and it may 
receive and hold, in trust or otherwise, funds received by gift or bequest 
to be devoted bj^ it to such purposes. 

The committee desire to be informed whether or not the cor" 
porations hereinbefore named may hold real and personal estate 
in the amount specified by authority of R. L., c. 125, § 8, with- 
out express legislative sanction therefor. 

In the case of Senate Bill No. 15, the Association for the 
Relief of Aged and Destitute Women in Salem was incorporated 
under a special act (St. 1860, c. 183), for the purpose of pro- 
viding for the support of aged, destitute women not otherwise 
provided for, and for such purpose was authorized to hold real 
and personal property to the amount of $100,000. This amount 
was subsequently increased by St. 1885, c. 21, to $300,000. The 
purpose for which this association was chartered is clearly a 
charitable or benevolent one, within the meaning of R. L., c. 
125, § 2, since such purpose is for the relief of the needy, the 
sick or the afflicted. See Chamberlain v. Stearns, 111 Mass. 267; 
Mass. Soc. for Preventioji of Cruelty, etc., v. Boston, 142 Mass. 
24; New England Theosophical Soc. v. Boston, 172 Mass. 60. 

There seems to be no good reason why it might not as w'ell 
have been incorporated under the general laws existing in 1860 
as by special enactment. See St. 1857, c. 56; Gen. Sts., c. 32. 

It follows, therefore, that it is within the permission given by 
R. L., c. 125, § 8, and may increase its holdings of real and per- 
sonal estate to the amount specified. 

In the case of House Bill No. 208, it is equally clear that the 
Trustees of Monson Academy are a corporation formed for edu- 
cational, benevolent or charitable purposes. See Mt. Hermon 
Boys School v. Gill, 145 Mass. 139; W esley an Academy \. Wil- 
hraham, 99 Mass. 599. But there is a distinction in the Ian- 



OPINIONS OF THE ATTORNEY-GENERAL. 

guage of the act of incorporation (St. 1804, c. 10, by which, in 
section 2, the corporation is authorized to hold real and per- 
sonal estate), in that there is the following proviso: — 

Provided, that the annual income of the whole estate of the said corpo- 
ration shall not exceed five thousand dollars. 

Assuming that this section has not, since its enactment, been 
amended so as to destroy the force of this prohibition, I am of 
opinion that the corporation may not take advantage of the 
provisions of R. L., c. 125, § 8, and that special legislation is 
necessary to authorize any increased holdings of real and per- 
sonal estate bv it. 



Metropolitan Park Commission — Rules and Regulations 
FOR THE Use of the Charles River. 

The Metropolitan Park Commission may, regardless of the ownership of the soil 
beneath the stream, enact and enforce rules and regulations governing the 
public use of the Charles River at any point within the metropolitan parks 
district, provided that such rules and regulations are not repugnant to the 
power of Congress to regulate commerce, and are not in conflict with the 
authority to supervise tide waters, vested by R. L., c. 96, § 8, in the Board 
of Harbor and Land Commissioners. 



I beg to acknowledge the receipt of your favor of January 



To the Motro- 
politAn I'urk 

<*°^'^'°"- 31^ in which the opinion of the Attorney-General is requested 

February 17. i 

by 



the Metropolitan Park Commission upon the following 
questions : — 

First. — WTiether the commission has authority to enact and enforce 
rules and regulations governing the pubUc use of the Charles River at 
any point within the metropolitan parks district, regardless of the owner- 
ship of the soil beneath the river; or whether the right is limited to those 
parts of the river where the Commonwealth, through this commission, 
owns and controls the bed of the river. 

Second. — If the right to enact and enforce rules and regulations under 
the act of 1900 is limited to those parts of the river where the commission 
owns and controls the bed of the river, what authority does the act of 
1900 give heyond that contained in section 4 of chapter 407 of the Acts of 
tlie year 1893? 



DANA M ALONE, ATTORNEY-GENERAL. 15 

Acts of 1893, c. 407, § 4, provides that: — 

... In fui-tlierance of the powers herein granted, said board may 
employ a suitable police force, make rules and regulations for the govern- 
ment and use of the pubhc reservations under their care, and for breaches 
thereof affix penalties not exceeding twenty dollars for one offence, to be 
imposed by any court of competent jurisdiction, and in general may do 
all acts needful for the proper execution of the powers and duties granted 
to and imposed upon said board by the terms of this act. 

Acts of 1897, c. 121, § 3, provides that: — 

The pohce appointed or emploj^ed by said commission, . . . shall 
have within the metropoUtan parks district all the powers of poUce officers 
and constables of cities and towns of this Commonwealth, except the 
power of serving and executing civil process. 

Acts of 1900, c. 340, § 1, provides that: — 

The metropolitan park commission may from time to time make rules 
and regulations to govern the public use of the Charles river, the Neponset' 
river, and the Mystic river, within the metropolitan parks district, and 
of the ponds and other waters along which it liolds abutting lands for public 
open spaces in said district, and for breaches thereof may affix penalties not 
exceeding twenty dollars for one offence, to be imposed by any court of 
competent jurisdiction; and in general may do all acts needful for the 
proper execution of the powers and duties granted to and imposed upon 
said board by this act. . . . 

By this section the Legislature has delegated to the commis- 
sion authority to regulate the public use of the entire Charles 
River as far as it flows within the metropolitan parks district, 
unless the words "along which it holds abutting lands," etc., 
qualify all the rivers and waters mentioned, and not merely 
"the ponds and other waters" immediately preceding those 
words. Such a construction, however, seems to me an impos- 
sible one. 

If, then, the Commonwealth itself had the power to regulate 
this use of the river, it has delegated that pow'er to the Board 
of Park Commissioners. Such a delegation is constitutional. 
In Brodbine v. Revere, 182 Mass. 598, at p. 603, the court 
says : — 



OPINIONS OF THE ATTORNEY-GENERAL. 

Wo arc of opinion that the authority given to the Board of Metropohtan 
Park Commissioners to make rules and regulations in regard to parks and 
ways, with a provision that breaches of these rules shall be punishable 
like breaches of the peace, is not a delegation of legislative power which 
is unconstitutional. 

The question, therefore, is whether the Commonwealth had 
authority to regulate the public use of the Charles River. In 
Massachusetts it has been repeatedly held that the public has 
the right to navigate and fish for pleasure, or as a business, 
over tidal waters, and that it has the right to navigate and to 
luivc fish freely pass in rivers above tide water, if navigable in 
fact. Drake v. Curtis, 1 Cush. 395, 413. 

In Commonwealth v. Alger, 7 Cush. 53, the court says (p. 
9N):- 

In addition to these [private rights] are two acknowledged pubhc 
rights, which are regarded as such, to be preserved and maintained for 
general and common use, although every portion of the soil over which 
the rivers flow is the private property of the riparian owners. These are: 
1 . The right of passage with boats, rafts and other vessels adapted to the 
use of such waters; 2. The right of the public to have these rivers kept 
open and free for the migratory fish. . . . Both of these rights are 
recognized as pubhc rights in the case of Comvionioeallh v. Chapin, 5 Pick. 
199. 

In Blood V. Nashua (t- Lowell Railroad, 2 Gray, 137, 139, it is 
said : — 

But there is another right in rivers and water courses, for navigation, 
boating and rafting. The rule of the common law is that waters are not 
navigalile unless within reach of the ebb and flow of the tide. But it has 
often been held here that the public have a right to the use of the large 
rivers, and, indeed, of all rivers and water courses, suitable for boats and 
raft.s, and in that sense they are deemed navigable, though above the ebb 
iiiul flow of the tide. In these, there is a right of w^ay for boats and rafts. 

It is also well settled that the Commonwealth may make rules 
and regulations governing these public uses. Commonwealth v. 
Vincent, 108 Mass. 441, 447. 



DANA MALONE, ATTORNEY-GENERAL. 17 

The power of the Legislature of the Commonwealth over the public 
rights of navigation and fishing in any waters within its boundaries is 
unrestricted, provided it does not interfere with the power to regulate 
commerce, conferred upon the general government by the Constitution 
of the United States. Cooley v. Philadelphia Board of Wardens, 12 How. 
299. ... In those waters, whether within or beyond the ebb and flow 
of the tide, which are not navigable from the sea for any useful purpose, 
there can be no restriction upon its authority to regulate the public right 
of fishing, or to make any grants of exclusive rights which do not impair 
other private rights already vested. 

The private rights of riparian owners are not now under dis- 
cussion and could not be affected by any action of the Park 
Commission. See Proprietors of Mills v. Commonivealth, 164 
Mass. 227, at p. 229. 

From the foregoing statutes and cases I think it is clear that 
the commission has authority to enact and enforce reasonable 
rules and regulations governing the public use of the Charles 
River at any point within the metropolitan parks district, re- 
gardless of the ownership of the soil beneath the river, and 
above and below the dam at Watertown. Such regulations as 
are made for the use of that part of the river below the dam 
may be limited, however, by the power of Congress to regulate 
commerce, and should, furthermore, be made in the light of the 
authority of the Board of Harbor and Land Commissioners, as 
provided in R. L., c. 96, § 8: — 

Said board shall have general care and supervision of the harbors and 
tide waters within the Commonwealth, of the flats and lands flowed 
thereby, of the waters and banks of the Coimecticut river within the 
commonwealth and of all structures therein, in order to prevent and 
remove unauthorized encroachments and causes of every kind which 
may injure said river or interfere with the navigation of such harbors, 
injure their channels or cause a reduction of their tide waters, and to 
protect and develop the rights and property of the commonwealth in 
such flats and lands; and it may make survej's, examinations and ob- 
servations necessary therefor. 

As, in my opinion, the first question should be answered in 
the affirmative, an answer to the second question becomes un- 
necessary. 



18 



OPINIONS OF THE ATTORNEY-GENERAL. 



Tide Water — Cities and Towns — License — Fish Trap. 

A fish trap cannot be lawfully maintained in tide water without a license, as required 
by R. L., c. 91, § 116, from the selectmen of the town, or mayor and board of 
aldermen of the city, within which such fish trap is located. 

To the Board xhc reccnt inquirv of the Board of Harbor and Land Com- 

of Harbor and n .^ i p n • 

Land Com- missioners. referring to this department the tollowmg communi- 

niisBiODcrs. jo 

Febri^- 2<>. catioH from the selectmen of Provincetown — 

Town of Provincetowx, 
Office of Selectmen, Jan. 22, 1906. 

Harbor and Land Commissioners of Alassachusetts. 

Gextlemen: — Do you consider the selectmen of this to-rni have any 
jurisdiction over a fishing trap that is constructed the same as a fish 
weir, only it has no poles? Anchors and rocks are used to keep it in place. 
As we read the Re\Tised Laws it looks to us as though a fish trap requires 
a license the same as a fish weir. We would like your opinion on it, 
and will abide by your decision. 

Very truly yours, 

Geo. Allen, 
Heml^n S. Cook, 
C. Austin Cook, 
Selectmen of Provincetown. 



and requesting an opinion as to whether the Board should con- 
sider an unlicensed fish trap a nuisance in tide water, came duly 
to hand. 

R. L., c. 91, § 116, provides that: — 

The mayor and aldermen of a city and the selectmen of a town lying 
upon tide water, except cities and towms bordering on Buzzard's bay, 
may in WTiting authorize any person to construct weirs, pound nets or 
fish traps in said waters witliin the hmits of such city or town for a term 
not exceeding five years, if such weirs, pound nets or fish traps do not 
obstruct navigation or encroach on the rights of other persons. 



This statute in express terms applies to fish traps as well as to 
weirs. If the "fishing trap," as the selectmen in their letter 
assume, is a fish trap, it cannot be lawfully maintained without 



DANA MALONE, ATTORNEY-GENERAL. 19 

a license from the selectmen of the town within which it is 
located. 

R. L., c. 91, § 118, provides that whoever maintains such a 
fish trap, without a license, shall forfeit ten dollars for each day 
he maintains such fish trap, and may be indicted therefor and 
enjoined therefrom. 



InSURANXE — FOREIGX IxSURANXE COMPAXY — TaX UPOX 

Premiums — Reciprocal Legislatiox. 

A tax or excise assessed to a Xew York life insurance company upon all premiums 
charged or received upon contracts made by it in this Common-wealth, at a 
rate equal to the highest rate imposed during the preceding year by the State 
of New York upon Massachusetts life insurance companies doing business 
in New York, in accordance with the pro^asions of R. L., c. 14, § 28, is properly 
imposed upon such a company since chapter 118 of the laws of 1901 of the 
State of X'ew York went into effect; and the tax or excise so assessed need not 
be reduced either because the X^ew York statute has been held in that State not 
to be applicable to the receipt of premiums upon contracts entered into by a 
domestic company prior to the passage of the act, or because a X'ew York 
insurance companj- doing business in this Commonwealth may be assessed 
upon a class of receipts which are possibly not assessed to Massachusetts 
companies doing business in X'ew York, — especially since the going into ■ 
effect of chapter 94 of the Acts of 1905 of the State of X'ew York. 

Under date of Jan. 11, 1906, you asked an opinion of mv To the Tax 

J TT TT 1 T-. 1 "^ • . , " Commission 

predecessor, Hon. Herbert Rarker, upon certain questions relat- i^oe 

. p . . March 7. 

ing to the taxation of life insurance companies. You say: — 

Life insurance companies, both foreign and domestic, are taxed in 
^Massachusetts, under the pro\'isions of section 24, chapter 14 of the 
Revised Laws, upon the net value of aU policies in force on the preceding 
thirty-first day of December, issued or assumed by such company and 
held by residents of the Commonwealth. They may also be taxed under 
the reciprocal provision of section 28 of chapter 14. 

R. L., c. 14, § 24, provides that a domestic or foreign com- 
pany or association which is engaged in the business of life in- 
surance within this Commonwealth, — 

shall annually pay an excise tax of one-quarter of one per cent upon 
the net value of all poUcies in force on the prececUng thirty-first day of 
December, issued or assumed by such company and held bj' residents 
of the commonwealth, as determined b3' the tax commissioner. . . . 



20 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 28 provides that: — 

A life insurance company, association or partnership, incorporated or 
associated by authority of any other state of the United States, by the 
laws of which a tax is imposed upon the premium receipts of life insurance 
companies chartered by this commonwealth and doing business in such 
state, or upon their agents, shall annually, so long as such laws continue 
in force, pay a tax or excise upon all premiums charged or received upon 
contracts made in this commonwealth, at a rate equal to the highest 
rate so imposed during the year. 

Laws of New York, 1901, c. 118, § 1, provides that: — 

An annual state tax for the privilege of exercising corporate franchises 
or for carrying on business in their corporate or organized capacity within 
this state, equal to one per centum of the gross amount of premiums 
received during the preceding calendar year, for business done in this 
state, whether such premiums were in the form of money, notes, credits 
or any other substitute for money, shall be paid annually into the treasury 
of the state, on or before the first day of June, by the following corpora- 
tions; . . . 

2. Every insurance corporation incorporated, organized or formed 
under, by or pursuant to the laws of any other state of the United States 
and doing business in this state, except a corporation doing a fire insurance 
business or a marine insurance business . . . 

This act was amended by Laws of New York, 1905, c. 94, by 
providing that the tax should be on the gross amount of pre- 
miums received during the preceding calendar year — 

for business done at any time in this state, which gross amount of pre- 
miums shall include all premiums received during such preceding calendar 
year on all policies, certificates, renewals, policies subsequently canceled, 
insurance and reinsurance during such preceding calendar year, and all 
premiums that are received during such preceding calendar year on all 
policies, certificates, renewals, policies subsequently canceled, insurance 
and reinsurance executed, issued or delivered in all years prior to such 
preceding calendar year, whether such premiums w^re in the form of 
monej', notes, etc. 

In 1905 the Tax Commissioner of Massachusetts assessed the 
Metropolitan Life Insurance Company of New York a tax under 
section 24 upon the net value of its policies, amounting to $21,- 
058.58; and also assessed a tax upon the same company, under 



DANA MALONE, ATTORNEY-GENERAL. 21 

the provisions of section 28, based upon the premiums received 
during the year ending Dec. 31, 1904, of $46,618.25. By an 
agreement made with the Commissioner of Insurance of the 
State of New York, the taxes assessed under sections 24 and 28 
are not deemed to be cumulative; that is, a tax under each 
section is estimated and then only the larger one is collected. 

In the case of The People of the State of New York, ex rel. 
The Provident Savings Life Insurance Society v. Miller, decided 
by the New York Court of Appeals in 1904, it was held that 
under chapter 118 of the Laws of 1901 the premium receipts 
of a domestic insurance company could only be assessed upon 
receipts from insurance written subsequently to the passage of 
the act, and that receipts of premiums upon contracts entered 
into before the enactment of the statute could not be taxed. 

The Metropolitan Life Insurance Company has appealed from 
the tax assessed in Massachusetts under the provisions of sec- 
tion 28, upon the ground that under the New York decision 
only such receipts as were taxable in New York during the year 
1904 could be taxed in Massachusetts for that same year. You 
request the opinion of the Attorney-General as to whether you 
were right in assessing the tax as you did upon the Metropolitan 
Life Insurance Company for the year 1904. 

I am of opinion that the tax was properly assessed and no 
part of it should be repaid to the company. There are several 
grounds upon which the validity of the assessment can be main- 
tained : — 

1. Section 28 provides that the tax or excise upon all pre- 
miums charged or received upon contracts made in this Com- 
monwealth shall be paid annually, so long as the laws in (he 
foreign State continue in force, and at a rate equal to the highest 
rate so imposed during the year. Under this section it is 
obvious that the exact form or quantity of premiums collected 
or taxed in the foreign State in a given year is immaterial, the 
only material question being, What was the highest rate im- 
posed by the foreign law during the year? 

2. The New York decision does not affect the imposition of 
the Massachusetts tax. That case held, first, that the New 
York tax with respect to domestic corporations was a tax upon 



22 OPINIONS OF THE ATTORNEY-GENERAL. 

the exercise of a franchise; and second, that the act of receiving 
premiums from pre-existing contracts of insurance did not neces- 
sitate an exercise of the franchise; and the case was expressly 
distinguished from one involving the taxation of a corporation 
foreign to New York. Upon this point the court said : — 

The statute designates the burden as one "for the pri\'ilege of exercising 
corporate franchises," and, consequently, it can be laid only upon such 
business as depended upon the exercises of such franchise. It could not 
have been lawfully i iposed upon the receipts of business contracts that 
the compan}'' had the right to collect and enforce by virtue of the contract, 
alone, and that did not depend upon the exercise of the franchise. . . . 
The tax is purely a franchise tax and nothing else as to domestic corpora- 
tions. The tax imposed "for carrying on business in their corporate or 
organized capacity" applies only to foreign corporations deriving their 
franchises from other sovereignties. 

Moreover, section 28 of chapter 14 makes no distinction be- 
tween an excise upon the exercise of a franchise and an excise 
upon the doing of business in the State; either or both may 
properly be taxed. See Connecticut Ins. Co. v. Commonwealth, 
133 Mass. 161, at p. 163: — 

It has been uniformly held . . . that the Legislature has the power 
to impose an excise upon any business or calling exercised in the Com- 
monwealth, and upon any franchise or privilege conferred by or exercised 
within the Commonwealth. Portland Bank v. Apthorp, 12 Mass. 252; 
Commonwealth v. People's Five Cents Savings Bahk, 5 Allen, 428. 

The power to impose an excise upon corporations or associations 
engaged within this Commonwealth in the business of life insurance, 
whether incorporated here or incorporated elsewhere and allowed by 
comity to carry on business here, cannot now be doubted. 

Thus, the case of People v. Miller is irrelevant in this discus- 
sion; first, because its effect was expressly limited to domestic 
corporations, with an indication that all the premium receipts of 
a foreign corporation could be taxed; and second, because in 
Massachusetts there seems to be no objection to taxing "the 
right to do business" as distinguished from "the exercise of a 
fraiiciiise," even of a domestic company. 

3. Under the act of New York, chapter 94 of the Acts of 
190.5. the tax assessed on all life insurance companies, whether 



DANA MALONE, ATTORNEY-GENERAL. 23 

domestic or foreign, was made expressly measurable by the 
amount of premiums collected during the year 1904, whether 
upon new contracts or renewals of old contracts. Under that 
statute there can be no question but that Massachusetts com- 
panies were assessed a tax in New York in 1905 based upon all 
their premium receipts collected in New York during 1904; 
consequently, there can be no injustice in assessing the Metro- 
politan Company in Massachusetts a tax based upon all of its 
premium receipts collected in Massachusetts in 1904. 

4. It might be argued (by analogy with the second point de- 
cided in People v. Miller, which I have not quoted) that the tax 
as assessed here in 1905 is retroactive in its action, because it 
imposed a burden upon the receipts of 1904. But it must be 
remembered that section 28 has been in force since 1873. Since 
that time all foreign life insurance companies have been subject 
to being taxed under its provisions, upon a certain contingency, 
i.e., the passing of a certain form of taxation law in a foreign 
State. That contingency occurred in 1901, since which time 
effect has properly been given to section 28. 

5. It has been argued for the Metropolitan Company that 
upon a broad view of the policy of the Commonwealth it would 
be unjust to tax a New York corporation here upon receipts 
which were not taxed to foreign corporations in New York, and 
that it is especially unjust in this instance, as the Metropolitan 
Company is the only foreign company whose tax under section 
28 exceeds the tax under section 24. The answer to this argu- 
ment is twofold: first, that the provisions of section 28 are plain, 
and contain no warrant for a reduction of the tax upon some 
vague principle of interstate justice; and second, that under the 
decision of People v. Miller it appears that Massachusetts corpo- 
rations in New York would be and probably are assessed a tax 
based upon all their New York premium receipts, whether re- 
ceived under old or new contracts. That this company is the 
only one which has so far been taxed under the provisions of 
section 28 does not seem a sufficient reason for abating the tax, 
as it is confessedly a tax, not upon the value of the policies in 
force, as in section 24, but upon the privilege of doing business 
as measured bv the amount of business done, — and the Metro- 



24 OPINIONS OF THE ATTORNEY-GENERAL. 

politan Company acknowledges that it has done by far the 
hirgest business in this Commonwealth, during the past few 
years, of any of the foreign companies. 

The question of the constitutionality of section 28, under the 
clause of the Constitution which provides that "full power and 
authority are hereby given and granted to the said general 
court to impose and levy reasonable duties and excises upon 
any produce, goods, wares, merchandise and commodities w^hat- 
soever, brought into, produced, manufactured or being within 
the Commonwealth," has not been raised by the Metropolitan 
Company. I do not, therefore, go into the problem of how far 
a reciprocal or retaliatory tax, as enforced by the Tax Commis- 
sioner and affecting only certain corporations of certain States, 
such as is provided by section 28, would be constitutional under 
the clause above set forth. 



Taxation — Corporate Bonds — Mortgage — Value of 
Bonds in Excess of Value of Mortgaged Real Estate. 

The bonds of the New England Cotton Yarn Company, amounting to S5, 206,000 
par value, are taxable to the holders thereof upon the excess of the amount 
outstanding of the assessed value, to wit, $2,105,575, of the real estate 
mortgaged to secure such bonds. 

SmmisLfoncr. ^'^>" rcqucst the opiuiou of the Attorney-General as to 
M^8. whether the bonds of the New England Cotton Yarn Com- 

pany, secured by a mortgage of real and personal property to 
The New England Trust Company, trustee, are taxable to the 
individual owners thereof. It appears that there are $5,206,000 
par value of its bonds outstanding, and that its real estate is 
assessed for $2,105,575. 

It is obvious that it has always been the policy of the Com- 
monwealth to tax as personal estate "all money at interest and 
other debts due the person to be taxed more than he is in- 
debted or pays interest for." Knight v. Boston, 159 Mass. 551, 
held that the bonds of a mercantile corporation, the Boston 
Water Power Company, secured by a mortgage to a trustee for 
bondholders, under which the trustee had entered and been 
assessed for more than the par value of the outstanding bonds, 



DANA MALONE, ATTORNEY-GENERAL. 25 

are exempt from taxation under Pub. Sts., c. 11, § 4, now R. L., 
c. 12, § 4. The court said (p. 553): — 

When a mortgage is made to a trustee for bondholders, the mortgage 
interest is taxable to the trustee who represents them, as it would have 
been to the bondholders themselves if the mortgage had been made to 
them directly. In the present instance the trustees have paid the tax 
on the whole value of the land, which is equal to the amount of the 
bonds outstanding. The tax on the bonds must be abated. 

The effect of this decision is to apply the exemption in all 
cases of mortgage debts, whether notes or bonds, and irrespec- 
tive of any intervening trust. There is nothing in the case, 
however, to indicate that the exemption is to be extended to the 
excess of a loan above the assessed value of the mortgaged real 
estate. As the policy of the Commonwealth has been and still 
is to tax all indebtedness, and as the exemption was created 
wholly to protect certain property from double taxation, and 
with an exception from the exemption in clear and unequivocal 
terms, I am of opinion that the bonds of the New England 
Cotton Yarn Company are taxable to the holders thereof with 
respect to the excess of the amount outstanding above the as- 
sessed value of the real estate subject to the mortgage. 

The only cases besides the Knight case of interest upon this 
point are those of Firemen's Fire Insurance Co. v, Common- 
loealth, 137 Mass. 80, and Worcester v. Boston, 179 Mass. 41. 
In the first case it was held that a corporation owning mort- 
gages secured by real estate was entitled, under Pub. Sts., c. 12, 
§§ 14 to 16, and Pub. Sts., c. 13, §§ 39 and 40, to have the 
amount of the mortgages held by it deducted from the aggre- 
gate value of its shares in determining the amount of its fran- 
chise tax. This decision goes upon the ground that a mort- 
gagee's interest is "real estate subject to local taxation," within 
the meaning of the franchise tax statute. 

In the second case it is said (p. 49) that: — 

The provisions of Pub. Sts., c. 11, §§ 14, 15, 16, are rarely regarded, 
and the result intended by them has been practically reached by a failure 
on the part of the assessors to assess to the mortgagee, either as real or 
personal property', the sum represented by the mortgage. 



JC. 



OPINIONS OF THE ATTORNEY-GENERAL. 

Also, in Abbott v. Frost, 185 Mass. 398, 399, it is said that: — 

8ucli asscKt^mcnts are permitted by our laws relating to taxation, and 
have been held to be in strict accordance with their provisions. 

These decisions seem to me to indicate conclusively that the 
words "taxable as real estate" are not limited, in their applica- 
tion to the interests of mortgagees, to interests actually taxed to 
the mortgagees in a given year, but include all such interests as 
might be assessed to them under section 16. The case of 
Knight v. Boston does not definitely decide this point, as the 
tax there had been assessed to and paid by the trustees; but 
to hold otherwise w'ould be to permit the exemption to rest 
upon the caprice of individual assessors as to whether they pre- 
ferred to assess the property to the mortgagor or to the mort- 
gagee. I do not think the language should be construed to 
have such an effect. Consequently, I am of opinion that only 
the excess of the bonds over the value of the real estate is tax- 
able, but that this is taxable irrespective of the party to whom 
the mortgagee's interest is actually assessed. 



To the 

Mosaachuaett^t 
Hig;bway 
Comtniaiiion. 

1906 
March 11. 



Automobiles — Cities and Towns — Special Regulations 
— Statutory Construction. 

A regulation adopted by the selectmen of a town, fixing the speed limit for automo- 
biles and motor cycles throughout such town "in fire district, eight miles per 
hour; outside, fifteen miles per hour," is a special regulation within the mean- 
ing of St. 1905, c. 366, the statute in force at the time of its adoption, although 
the limit so fixed coincides with the extreme limit established by such statute, 
and is unaffected by the enactment of St. 1906, c. 412, § 1, which established 
a rate of twelve miles in the thickly settled or business part of a city or town, 
and a rate of twenty miles outside thereof, as the extreme limit of speed. 

You state that the Massachusetts Highway Commission re- 
quests my opinion upon the following facts: — 

In 1905 the selectmen of Lenox, acting under the authority 
of St. 1905, c. 366, passed certain regulations excluding auto- 
mobiles and motor cycles from specified roads within the town 
of Lenox, and regulated the speed thereof throughout such town 
as follows: — 



DANA MALONE, ATTORNEY-GENERAL. 27 

Speed limits: In fire district, eight miles per hour; outside, fifteen 
miles per hour. 

No protest having been made, as provided for in said chapter, 
the Massachusetts Highway Commission caused to be posted on 
the roads from which motor vehicles were excluded by local 
regulation the signs required by the statute, but did nothing in 
the matter of posting the ways where the regulation specified 
that the speed limit should be fifteen miles per hour, or the 
roads within the fire district where the speed limit was set at 
eight miles per hour, for the reason that the limitation imposed 
was identical with that fixed as an extreme limit by St. 1903, 
c. 473, § 8. 

St. 1906, c. 412, § 1, established a rate of twelve miles for 
the thickly settled or business part of a city or town, and a rate 
of twenty miles outside such thickly settled or business portion, 
as the extreme limit of speed. 

Your letter then proceeds as follows: — 

The commissioners are doubtful as to what their duty now is. They 
are uncertain as to whether the Acts of 1906 nullify what the selectmen 
in 1905 thought was a special regulation, or whether the fifteen-mile 
speed mentioned in the regulation, which then agreed with the State law, 
now becomes a special regulation, under the Acts of 1905, chapter 366. 

St. 1905, c. 366, § 1, which so far as quoted is substantially 
the same as St. 1906, c. 412, § 9, provides that: — 

The city council of a city or the board of aldermen of a city having no 
common council, and the selectmen of a town, may make special regula- 
tions as to the speed of automobiles and motor cycles and as to the use 
of such vehicles on particular roads or ways, including their complete 
exclusion therefrom. . . . Such special regulations shall be posted 
conspicuously by or under the direction of the Massachusetts highway 
commission on sign boards at such points as the board may deem neces- 
sary. . . . 

The question submitted must be determined by the definition 
to be given to the term "special regulation," as used in the 
provisions of St. 1905, c. 366: — 



2S OPINIONS OF THE ATTORNEY-GENERAL. 

Sucli special regulation shall be posted conspicuously by or under the 
direction of the Massachusetts highway commission on sign boards at 
such points as the board may deem necessary. 

I am of opinion that this phrase is to be construed to include 
all regulations made by any city or town in pursuance of the 
authority conferred by that statute or by any of its amend- 
ments. The general regulation is the speed limit established by 
the statute of the Commonwealth; the special regulation is that 
established by any city or town under authority of the statute; 
and in my judgment it is immaterial whether this regulation 
coincides with the extreme limit established by statute or not. 
It is, therefore, the duty of the State Highway Commission to 
post such regulations as are made by cities or towns in accord- 
ance with the provisions of the statute directing that in cases 
where no protest is made it shall be the duty of the commission 
to post the regulation in question conspicuously on sign boards 
at such points as the Board may deem necessary. It follows 
that it was the duty of the commission to post these regulations 
when first passed; and that duty remains unaffected by the 
provisions of St. 1906, c. 412, which amended the former act by 
striking out the words "fifteen days," in the nineteenth line, 
and inserting in place thereof the words "sixty days," but did 
not otherwise alter the provisions of law., 

I am unable to appreciate the force of the suggestion that by 
the amending act (St. 1906, c. 412, § 9), which made no change 
in St. 1905, c. 366, § 1, further than substituting the word 
"sixty" for the word "fifteen" in the nineteenth line of such 
section, all by-laws or ordinances relating to or regulating the 
use of automobiles in force upon June 24, 1906, were rendered 
null and void. 

An amendatory statute is in general to be read into and con- 
strued as a part of the act amended, and the repetition of pro- 
visions contained in the earlier act serves only to continue them 
as parts of the original enactment. See United Hehreio Associa- 
tion V. BcmJiimol, 130 Mass. 325; McLaughlin v. Newark, 57 
N. J. L. 298. 



DANA MALONE, ATTORNEY-GENERAL. 29 

In the present case it is inconceivable that the Legislature, 
by an amendment which involves merely the alteration of a 
single word, should have intended thus indirectly and by im- 
plication to give a new and more comprehensive meaning to 
the word "now" as used in that provision, which is merely a 
repetition of law already existing, — that "no ordinance, by-law 
or regulation now in force in any city or town . . . shall here- 
after have any force or effect," or to accomplish so comprehen- 
sive a result as the repeal of all municipal ordinances or regu- 
lations upon the subject of automobiles which existed at the 
date when such amendment became operative. 

Your communication contains a further reference to the reg- 
ulation adopted by the town of Harwich, upon which you sub- 
mitted an inquiry on Oct. 25, 1906, and which I have duly 
considered, relative to the authority of a city or town to estab- 
lish a speed limit applicable to the several divisions of the 
town, as, for instance, the thickly settled portion of the town 
and the part without the thickly settled portion. Assuming 
that in the present case the term "fire district" substantially 
coincides with the "thickly settled portion of the town," I am 
of opinion that such regulation is clearly within the authority 
of the town; and in any event it may be doubted how far there 
is jurisdiction in the Massachusetts Highway Commission to 
pass upon the legality or sufficiency of such regulations as 
adopted by the several cities and towns. In cases where no 
protest is made or hearing granted, their duty would seem to be 
simply to cause such rules and regulations to be conspicuously 
posted at the proper points. 



Public Officer — Investigation — Employment of Coun- 
sel — Expense. 

Upon an investigation or hearing of charges preferred against a State official or 
board by the Governor and the Executive Council, such official or board may 
not employ counsel at the expense of the Commonwealth. 

I have the honor to acknowledge your communication of qI^^^j^^^ 
March 7, which is as follows:— ^ Mal-chH. 



30 OPINIONS OF THE ATTORNEY-GENERAL. 

Rewlved, That the opinion of the Attorney-General be requested on 
tlic following point of law: Whether in case of the investigation of a State 
official or board or the hearing of charges preferred against same, it is 
lawful for said official or board to employ counsel at the expense of the 
Commonwealth. 

R. L., c. 7, § 1, reads as follows: — 

The attorney general shall appear for the commonwealth, the secretary, 
the treasurer and receiver general, the auditor of accounts and for state 
boards and commissions in all suits and other civil proceedings in which 
the commonwealth is a party or interested, or in w^hich the official acts 
and doings of said officers are called in question, in all the courts of the 
commonwealth, except upon criminal recognizances and bail bonds; and 
in such suits and proceedings before any other tribunal when requested 
by the governor or bj^ the general court or either branch thereof. All 
such suits and proceedings shall be prosecuted or defended by him or 
under his direction. ... All legal services required by such officers, 
boards, commissions and commissioner of pilots for the harbor of Boston 
in matters relating to their official duties shall be rendered by the attorney 
general or under his direction. 

This statute put an end to the practice which previously had 
prevailed to some extent among State boards and commissions 
of employing private counsel in public matters at the expense of 
the Commonwealth. McQuesten v. Attorney-General, 187 Mass. 
185. 

R. L., c. 7, § 9, provides that the Attorney-General — 

If in his opinion the interests of the commonwealth so require, . . . 
may, with the approval of the governor and council, employ additional 
legal assistance. 

The entire responsibility, therefore, for suits and proceedings, 
at all stages of their progress, rests upon the Attorney-General, 
who may, with your approval, if in his opinion the interests of 
the Commonwealth require, employ such additional assistance 
as he may deem necessary. 

It has been suggested that it would be improper for the At- 
torney-General to appear for the officers of a board or commis- 
sion at an investigation before you, in which their official acts 



DANA MALONE, ATTORNEY-GENERAL. 31 

and doings were called in question, or to have any direction as 
to the defence of the same; but it seems that if it would be im- 
proper for the Attorney-General to appear in such a case, then 
it would be improper that the money of the Commonwealth 
should be expended for that purpose, and that such officers 
should be required to defend themselves without assistance 
from the Commonwealth. I am therefore of opinion that the 
officers of such boards and commissions have no right- to employ 
private counsel at the expense of the Commonwealth in case of 
an investigation of charges made against them. 



Charitable or Benevolent Corporations — Authority to 
INCREASE Holdings of Real or Personal Property. 

Corporations specially chartered for charitable or benevolent purposes may, with- 
out express legislative authority, increase the amount of real or personal 
property held by them, in accordance with the provisions of R. L., c. 125, § 8, 
that any such corporation may hold real and personal estate to an amount 
not exceeding $1,500,000. 

Quaere, as to the effect of R. L., c. 125, § 12, providing that any such corporation 
formed before July 27, 1874, upon compliance with the requirements of such 
section, may accept the preceding sections of such chapter, and thereupon 
"shall have the powers and privileges and shall be subject to the duties and 
liabilities of corporations formed under said sections." 

The committee on mercantile affairs ask my opinion as to xo the com- 
mittee on 
whether Senate Bill No. 15 and House Bill No. 320 should be Mercantile 

Affairs. 

passed, or whether the desired object can be obtained under jjjj.^^^20 
general laws. They are similar in character and authorize the 
holding of additional real and personal estate by the Association 
for the Relief of Aged and Destitute Women in Salem and the 
Gwynne Temporary Home for Children. In the case of the 
former, its status as a charitable corporation has already been 
considered and established by an opinion of the Attorney- 
General, dated Feb. 14, 1906, and, so far as appears from the 
evidence submitted, the Gwynne Temporary Home for Chil- 
dren is a similar institution, incorporated for a charitable or 
benevolent purpose. See Chamberlain v. Stearns, 111 Mass. 
267; Neic England Theosophical Society v. Boston, 172 Mass. 
60. Either of these institutions mav, therefore, without further 



OPINIONS OF THE ATTORNEY-GENERAL. 

legislation, increase the amount of real or personal property 
held by it to that specified in section 8 of chapter 125 of the 
Revised Laws, which is as follows : — 

Any corporation organized under general or special laws for any of the 
purposes mentioned in section two and under sections thirteen to sixteen, 
inclusive, may hold real and personal estate to an amount not exceeding 
one million five hundred thousand dollars, which shall be devoted to the 
purposes set forth in its charter or agreement of association, and it may 
receive and hold, in trust or otherwise, funds received by gift or bequest 
to be devoted by it to such purposes. 

I am aware of the provisions contained in R. L., c. 125, § 12, 
providing that a corporation formed before the twenty-seventh 
day of July in the year 1874, under the provisions of any stat- 
ute, for any of the purposes mentioned in section 2, may accept 
the provisions of the preceding sections upon compliance with 
the requirements of section 12, upon which "such corporation 
shall have the powers and privileges and be subject to the duties 
and liabilities of corporations formed under said sections." It 
does not appear that either of the corporations above referred 
to, although both were incorporated before 1874, has acted 
under this section, but I am of opinion that upon consideration 
of the history of this legislation it cannot be construed to affect 
them. Gen. Sts., c. 32, which treated of corporations of the 
character of those under consideration, was repealed by St. 1874, 
c. .375, which substantially re-enacted its provisions. It seems, 
however, that the Legislature, fearing that by such repeal the 
corporate existence of corporations organized under the repealed 
statute might have been terminated, enacted in St. 1875, c. 49, 
§ 2, a provision which declared that by the act of the preceding 
year existing corporations were not to be aflfected, and further 
providing, lest this enactment should be ineffective, that all such 
corporations, however organized, might be included within the 
provisions of the later statute upon acceptance thereof in the 
manner prescribed. 

In United Hebrew Association v. Benshimol, 130 Mass. 325, 
the court held that St. 1875, c. 49, was to be construed as a 



DANA MALONE, ATTORNEY-GENERAL. 33 

continuance of St. 1874, c. 375, and in nowise affected the ex- 
istence of corporations previously organized. 

It is contended that, as the St. of 1874 contained no reservation, it 
operated to destroy all corporations created under the provisions of the 
General Statutes; and that the explanatory declaration in the statute 
of the next year could not restore their rights. But it is plain that the 
St. of 1874 was not passed for the purpose of affecting the rights of cor- 
porations already organized. The repeal of a general corporation law 
cannot be construed, in the absence of express provisions, as intended to 
repeal the charters of corporations formed under it, especially where the 
manifest purpose of the repealing act is to substitute a new law, extending 
the provisions of the old, and perfecting its details, but not changing its 
general policy. It is a familiar rule of construction that when statutes 
are repealed by acts which substantially retain the provisions of the old 
laws, the latter are held not to have been destroyed or interrupted in their 
binding force. "In practical operation and effect they are rather to be 
considered as a continuance and modification of old laws than as an 
abrogation of those old, and the re-enactment of new ones." Shaw, C. J., 
in Wright v. Oakley, 5 Met. 400, 406. 

Notwithstanding this decision, the section, although enacted 
for a specific purpose, has been retained upon the statute books. 

Its express language purports to give to a corporation acting 
under its provisions only what such corporation already en- 
joyed, viz., the powers and privileges and the duties and liabili- 
ties of corporations organized under the provisions of law 
previously in force. This they already had, and for that reason 
I am of opinion that the present question is not in anywase 
affected by the provisions of section 12. If, hoAvever, any 
doubt may arise upon this point, it is certainly true that if 
otherwise entitled to be included under the provisions of chap- 
ter 125, the acceptance by any society of the provisions of such 
act, as prescribed in section 12, would entitle such society to all 
the rights and privileges and subject it to all the duties of that 
chapter, without action upon the part of the Legislature. In 
any event, therefore, it would seem that no legislation is neces- 
sary in the case of the two charitable organizations above 
referred to. 



34 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Supor- 
intenili-nt for 
tsupprL'iuing 
the t iypsy 
and Brown-tail 
Motha. 
1906 
March 22. 



Gypsy and Brown-tail Moths — Owner of Real Estate — 
Destruction of Eggs and Nests — Expense — Assessed 
Value of Lands — Buildings. 

The word "lands" as used in St. 1905, c. 381, § 6, providing that where the owner 
or owners of real estate fail to destroy the eggs, pupse or nests of the gypsy 
or brown-tail moths, the city or town within which such real estate is situated 
"shall, subject to the approval of said superintendent, destroy the same, and 
the amount actually expended thereon, not exceeding one half of one per 
cent of the assessed valuation of said lands, . . . shall be assessed upon said 
lands," includes any buildings which may have been erected thereon. 

My opinion is requested by you on the construction to be 
given the portion of paragraph 3 of section 6 of chapter 381, 
Acts of 1905, which reads as follows: — 

If the owner or owners shall fail to destroy such eggs, pupae or nests 
in accordance with the requirements of the said notice, then the city or 
town, acting by the public officer or board, . . . shall, subject to the 
approval of the said superintendent, destroy the same, and the amount 
actually expended thereon, not exceeding one half of one per cent of the 
assessed valuation of said lands, as heretofore specified in this section, 
shall be assessed upon said lands. 



You desire to be informed whether the word "lands" as used 
in this section is to be interpreted as including or excluding the 
buildings thereon. The following statutes may prove of assist- 
ance. 

R. L., c. 8, § 5, proyides that: — 

In construing statutes the following words shall have the meaning 
herein given, unless a contrary intention clearly appears: — 

Eighth, The words "land," "lands" and "real estate" shall include 
lands, tenements and hereditaments, and all rights thereto and interests 
therein. 



li. L., c. 12, § 3, provides that: — 

Real estate for the purpose of taxation shaU include not only all land 
within the commonwealth but also all buildings and other things erected 
on or affixed to the same. 



DANA MALONE, ATTORNEY-GENERAL. 35 

In the language of R. L., c. 8, § 5, above quoted, the words 
"land," "lands" and "real estate" are apparently used as 
synonymous, and as including the buildings, inasmuch as the 
term "hereditament" is defined by Bouvier as — 

Things capable of being inherited, be it corporeal or incorporeal, real, 
personal or mixed, and ijicluding not only lands and everything thereon, 
but also heirlooms and certain furniture which by custom may descend 
to the heirs, together with the lands; 

and the term "tenement" as — 

Everything of a permanent nature which may be holden. House, or 
homestead. Property held by tenant. 

The word "land" has been construed to include under the stat- 
ute an undivided interest therein held by a tenant in common. 
Leavitt v. Camhridge, 120 Mass. 157, 159. 

From the foregoing statutes and definitions I think it is clear 
that, in the absence of language, in the act of 1905 indicating 
clearly a contrary intention, the word "lands" must be taken 
to include buildings, and the question, therefore, is whether such 
a contrary intention clearly appears. I am of opinion that not 
only does no such intention clearly appear, but that it does not 
appear at all. 

The words "as heretofore specified in this section," in the 
clause under discussion, refer to the earlier provision that "the 
mayor of every city and the selectmen of every town shall . . . 
cause a notice to be sent to the owner or owners ... of every 
parcel of land therein which is infested with said moths." The 
lands referred to, therefore, are the parcels of land infested with 
moths; and the term "parcel of land" is the term to be inter- 
preted. If this is considered to exclude buildings, it would fol- 
low that no notice need be sent to and no action taken by per- 
sons whose buildings, but not whose lands, were infested. Such 
can hardly have been the intention of the Legislature. 

Throughout the act the following words descriptive of real 
estate are used: "estate," "real estate," "real property," 



36 OPINIONS OF THE ATTORNEY-GENERAL. 

"land," "property," "private property," "parcel of land," 
"lands," "premises" and "private estates." They are ap- 
parently used somewhat indiscriminately, and to interpret the 
words "lands," in every case, to exclude buildings, would lead 
to many incongruities. I can see no more reason for so inter- 
preting it in the clause under discussion with respect to the 
assessed valuation than in several other places where it appears. 
Moreover, there seems to be no object in excluding the assess- 
ment of buildings, under the act, as it is common knowledge 
that the gypsy moth is very apt to build its nest on buildings 
as well as on trees. In fact, I am informed by you that clearing 
buildings of the nests of gypsy moths forms a considerable part 
of your work. 

Had the Legislature intended to distinguish between land, as 
such, and the buildings thereon, it could easily have done so, 
for I find among the bills upon this subject presented to the 
Legislature of 1905, House Bill No. 644, in which a distinction 
was made between "house lots," "farm land" and "waste 
land," and which contained the proviso that "no owner shall 
pay more than one half of one per cent of the assessed value of 
said house lot, nor more than twenty-five dollars for farm land, 
nor more than fifty dollars for such work on any one estate in 
any one calendar year." The report upon this bill was "leave 
to withdraw," by the committee to which it was referred. The 
fact that this distinction was not adopted in the bill as finally 
passed, indicates that the Legislature did not desire to differen- 
tiate between the various sorts of real estate. 

Although it is true that the form prescribed for the use of 
assessors in assessing taxes (R. L., c. 12, § 58) has separate 
columns for the description and valuation of buildings and land, 
and these distinctions are actually made by the assessors, I do 
not think these facts are material in connection with this stat- 
ute; for not only is the tax assessed on the real estate as a 
whole (R. L., c. 12, § 68), but also it has been indicated that 
the purpose of the classification above referred to is purely 
statistical. See Hamilton Manufacturing Co. v. Loioell, 185 Mass. 
114, at p. 117, where Knowlton, C.J., savs: — 



DANA MALONE, ATTORNEY-GENERAL. 37 

Land and the buildings upon it are ordinarily parts of the same real 
estate, and they cannot be separated for the purpose of collecting taxes. 
Although for statistical purjDoses they are at first valued separately, their 
aggregate worth, limited by their value in use together, constitutes the 
valuation of the entire real estate for the purpose of taxation. 

I am therefore of opinion that the phrase "not exceeding 
one half of one per cent of the assessed valuation of said lands, 
as heretofore specified in this section," should be interpreted to 
mean the assessed valuation of the lands with the buildings 
thereon. 



Town — School Committee — Authority to draw^ Orders 

DIRECTLY on ToWN TREASURY — By-LaW. 

The school committee of a town may, in the performance of the duties imposed 
upon such committee by law, and for the purposes set forth in the statutes, 
make expenditures which such town is bound to pay, and for the payment 
thereof may draw orders directly upon the town treasury, notwithstanding 
a by-law of the town to the effect that the town treasurer shall not pay money 
upon orders other than orders drawn by the selectmen. 

Your letter of March 20 requests my opinion upon the fol- Roard^J*^^*® 
lowing specified questions: — 



Board of 
Education. 

1906 
March 22. 



1. Is it within the rights of a school committee to ch-av/ orders directly 
upon the town treasury, without the intervention of the selectmen, for 
the payment of l)ills contracted for the support of schools, and is the 
treasurer under obligation to honor such orders ? 

2. Does the existence of a town by-law forbidding the treasurer to 
pay out any money, except upon orders drawn by the selectmen, affect 
the rights of the school committee in this regard ? 

R. L., c. 42, relating to public schools, in section 27 provides 
that the school committee — 

shall have the general charge and superintendence of all the pubUc 
schools, industrial schools, evening schools and evening high schools. 

Section 28 provides that it — 
shall select and contract with the teachers of the public schools, etc. 



38 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 34 provides that it — 
shall direct what books shall be used in the pubhc schools, etc. 

Section 35 provides that it — 

shaU, at the expense of the town, purchase text books and other school 
supplies used in the public schools, and, subject to such regulations as 
to their care and custody as it may prescribe, loan them to the pupils 
of such schools free of charge, etc. 

Section 37 provides that it — 

shall, at the expense of the town and in accordance with appropriations 
therefor previously made, procure apparatus, reference books and other 
means of illustration. 

It will be seen that the powers conferred upon the school 
committee in any city or town are very broad, and that they 
may contract with the teachers whom they desire to employ, 
and by such contract bind the town to pay the compensation 
determined upon. 

So in Batchelder v. the City of Salem, 4 Cush. 599, the court 
said : — 

By this statute, the committee has the power, absolutely and uncon- 
ditionally, to agree upon the salaries of the teachers. There is no power 
given to any other men, or body of men, to coQtract with the teachers, 
and this power is given by the statute, and not by the town or city. 

In this case it was held that the school committee might bind 
the town to pay to the teachers selected the amount of com- 
pensation agreed upon. 

So in Charlestoivn v. Gardner et ah, 98 Mass. 587, it was said 
that: — 

The power given to the school committee to contract with teachers 
necessarily implies and includes the power to determine their salaries. 

So under St. 1826, c. 143, providing that "the school com- 
mittee of each town shall procure class-books at the expense of 
the town and to be paid for out of the town treasury," it was 



DANA MALONE, ATTORNEY-GENERAL. 39 

held in Harhcell v. Littleton, 13 Pick. 229, that the school com- 
mittee might either buy the books on the credit of the town, or 
might themselves pay for them, and so make themselves credi- 
tors of the town. 

In view of these cases, which beyond doubt establish the 
power of a school committee to make expenditures for the pur- 
poses specified in the statutes and in connection with the duties 
therein imposed upon them, which the city or town for which 
they act will be bound to pay, I am of opinion that such com- 
mittee may draw orders directly upon the town treasury, and 
that the selectmen have no power or authority in the premises 
to refuse such orders; and I think this is true notwithstanding 
that there may be in existence a town by-law which forbids the 
town treasurer to pay out money upon orders other than orders 
drawn by the selectmen. Xo by-law which is in contravention 
of a general statute can be valid (see Commoiuvealth v. Wilkins, 
121 Mass. 356); and the clear effect of such a by-law as is re- 
ferred to would be to limit and circumscribe the statutory 
powers of the school committee, and, in effect, to make them 
subordinate to and under the immediate direction of the select- 
men, — a result not contemplated by the statutes. 



Marine Insurance — Automobile — Loss by Collision. 

The owner of an automobile may not, under the provisions of R. L., c. 118, § 29, 
relating to insurance against the perils of the sea and other perils usually 
insured against by marine insurance, including risks of inland na\'igation 
and transportation, be insured against loss caused by the collision of such 
automobile with another object, or against liability for damage caused thereby 
to other property. 

You ask my opinion upon the question whether a "collision Xothe 
clause" insuring the owner of an automobile, wherebv the commissioner. 

° , ' ' 1906 

owner is insured against loss to the automobile caused by a - ^p"' - • 
collision with another object, and also against liability for 
damage caused by the automobile to other property through a 
colHsion, is permissible in this Commonwealth under a marine 
policy. 



40 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 29 of chapter 118 of the Revised Laws provides that 
a company duly authorized to transact the business of marine 
insurance may — 

insure upon the stock or mutual plan vessels, freights, goods, money, 
effects, and money lent on bottomrj^ or respondentia, against the perils 
of the sea and other perils usually insured against by marine insurance, 
including risks of inland navigation and transportation. 

The clause in question in the policy submitted to me is simi- 
lar to the usual collision clause in marine insurance, but altered 
to fit the case of an automobile. It provides as follows: — 

This policy is extended to cover, whilst not in any conveyance, the 
risk of loss or damage to the automobile hereby insured, caused by col- 
lision with another object, whether moving or stationary, excluding always 
all claims for damage through detention, demurrage or loss of use. 

And it is further agreed, that if the automobile hereby insiu-ed shall 
come in collision with another object, whether moving or stationary, 
and the assured become liable to pay and shall pay, any sum or sums 
for damages resulting therefrom to said other object, in such case these 
assurers will contribute towards the payment of the total amount of said 
damages, in the proportion that the sum insured under this poUcy bears 
to the total valuation of the automobile, as stated herein, provided that 
these assurers shall not in any event be held liable under this agreement for 
a greater sum than the amount insured under this pohcy. 

It is also subject to the condition that there shall be no liability 
for any damage resulting from collision occurring while the 
automobile is being operated by any person under eighteen 
years of age, or in any race or speed test. 

On Oct. 8, 1904, the Attorney-General gave an opinion to 
you to the efl'ect that automobiles might properly be insured 
under a marine form of policy, but he did not have before him 
the collision clause which is now brought in question. 

Section 29 of chapter 118 of the Revised Laws was first en- 
acted in the insurance law of 1872 (c. 375, § 1), which provided 
as follows: — 

Any ten or more persons residents of this Commonwealth, who shall 
have associated themselves together . . . with the intention to con- 
stitute a corporation for the purpose of transacting the business of 



DANA MALONE, ATTORNEY-GENERAL. 41 

insurance, either upon the stock or mutual principle, against loss or 
damage by fire, by hghtning, by tempest, or by the perils of the sea, 
and other perils usually insured against by marine insurance companies, 
including risks of inland navigation and transportation, shall become a 
corporation . . . subject to all the duties, habihties and restrictioas 
set fcftlh in all general laws which are or may be in force relating to in- 
surance corporations. 

Prior to that time there had been in force Gen. Sts., c. 58, § 32, 
providing as follows : — 

Companies thus organized may insure vessels, freights, goods, money, 
effects, and money lent on bottomry or respondentia, against the perils of 
the sea and other perils usually insured against by marine insurance; 
and dwelling houses and other buildings, merchandise and other personal 
property, against loss by fire, according to their respective charters. 

Section 65 provided that : — 

No life insurance company shall issue policies insuring fire or marine 
risks. 

Thus it appears that the phrase "perils usually insured 
against by marine insurance" is an old one in the statute law of 
Massachusetts, but that the additional words, "including risks 
of inland navigation and transportation," were added thereto in 
1872. I do not find any case in which the phrase "and other 
perils usually insured against by marine insurance" has been 
thoroughly analyzed or discussed, but in Gage v. Tirrell, 9 Allen, 
299, 307, it was said as a dictum that: — 

Perils of the seas embrace not only inevitable accidents arising from 
tempests, floods, earthquakes and other dangers happening without the 
intervention of man, but also those caused by collisions, fires, pirates 
and other occurrences, to the happening of which human agency directly 
contributes. 

Although this case indicates that perils arising from human 
agency may be included in the phrase "perils of the seas" when 
used in an insurance policy, I think that the phrase "other 
perils usually insured against by marine insurance," when used 
in the statute, must be considered as referring to the other 



42 OPINIONS OF THE ATTORNEY-GENERAL. 

perils which are usually stated in marine insurance policies, as 
the perils from men of war, fire, enemies, pirates, rovers, 
thieves, jettison, letters of mart and countermart and reprisals, 
takings at sea, arrests, restraints and detainments of all kings, 
princes and people, of what nation, condition or quality soever, 
and barratry of the master and mariners. 

The phrase "including risks of inland navigation and trans- 
portation" was probably added to make clear the right of a 
marine insurance company to make a policy upon goods imme- 
diately prior or subsequent to marine shipment when the trans- 
portation or situation of the goods on land could be considered 
as part of the marine voyage. 

Marshall, in his book on marine insurance, published in 1865 
(part I., chapter I., page 2), defines it as follows: — 

Marine insurance is that which is applied to maritime commerce, and 
is made for the protection of persons having an interest in ships or goods 
on board from the loss or damage which may happen to them from the 
perils of the sea during a cer+ain voj^age or a fixed period of time. 

I am informed by you that it has been customary for a num- 
ber of years for marine insurance companies to make policies 
upon property in transit over land, and having no connection 
with any marine voyage, and also to make policies upon the 
liability of common carriers to the owners of property carried by 
them, and upon a number of other sorts of property and liabil- 
ity having no reference to marine transportation. 

In the absence of any judicial determination, however, I do 
not think that the acts of the insurance companies themselves 
can be used to enlarge the plain meaning of the words in the 
statute, which give marine companies the right to make insur- 
ance covering only the perils of the seas and other perils usually 
insured against by marine insurance, including risks of inland 
navigation and transportation. 

This construction is strengthened by the fact that R. L., 
0. lis, § 29, expressly authorizes companies to be formed for the 
purpose of effecting eleven kinds of insurance other than marine, 
of which one is — 



DANA M ALONE, ATTORNEY-GENERAL. 43 

against loss or damage to property arising from accidents to elevators, 
bicycles and vehicles, except rolling stock of railways. 

The obvious intention of the Legislature was to provide distinct 
classes of insurance companies for making distinct forms of 
policies, and it limited the rights of each class of company by 
providing at the end of the section that: — 

No such corporation shall transact any business other than that specified 
m its charter or agreement of association. 

I am of opinion, therefore, that marine insurance companies 
.n Massachusetts are not authorized to issue policies insuring an 
lutomobile owner against loss and liability caused by the col- 
ision of his automobile with another object. 



Savings Banks — Legal Investments — Bonds of a Rail- 
road Corporation having no Completed Roadbed. 

K railroad company incorporated in the State of Rhode Island and Providence 
Plantations, under an act containing the pro\'ision, among others, that if 
such company fails to complete the location, lay-out and construction of its 
railroad on or before May 15, 1909, the charter shall be void and of no effect, 
which has filed its location and acquired by condemnation the land upon 
which to build its road, but has not otherwise complied with the conditions 
of its charter, and has constructed no physical railroad, is not a railroad 
company whose road is located wholly or in part in one of the New England 
States within the meaning of R. L., c. 113, § 26, cl. 3, par. b, which pro\ddes 
that savings banks may invest "in the first mortgage bonds of a railroad 
company incorporated in any of the New England states and whose road is 
located wholly or in part in the same." 

My opinion is requested by you as to whether the Providence To the com- 

T\ • ^ /~i • m"^! "I'l • missioners of 

ierminal Company is a railroad company within the meaning Savings Banks. 
)f R. L., c. 113, § 26, cl. 3, par. b. This section provides that Apnu. 
savings banks may invest : — 

In the first mortgage bonds of a railroad company incorporated in any 
)f the New England states and whose road is located wholly or in part 
n the same, guaranteed by a railroad company described in the preceding 
paragraph which is in possession of and is operating its own road. 

The New York, New Haven & Hartford Railroad Company 
s undoubtedly "a railroad described in the preceding para- 



44 OPINIONS OF THE ATTORNEY-GENERAL. 

graph," and in possession of and operating its own road; so that 
the only question is whether the Providence Terminal Company 
is " a railroad company incorporated in one of the New Eng- 
land states and whose road is located wholly or in part in the 
same." 

The company was chartered by an act of the General Assem- 
bly of the State of Rhode Island and Providence Plantations, 
passed April 13, 1904, and entitled "An Act in amendment of 
and in addition to an act entitled 'An Act to incorporate the 
New York, Providence and Boston and Old Colony Railroad 
Terminal Company,' passed by the General Assembly at its 
May session, A.D. 1891." 

Section 1 provides that : — 

The name of the New York, Providence and Boston and Old Colony 
Railroad Terminal Company, created by an act passed at the May session, 
A.D. 1891, is hereby changed to "The Providence Terminal Company." 

Section 3 provides: — 

Said company is hereby authorized and empowered to locate, lay out, 
construct, maintain, and operate, by steani or other power, a railroad 
of one or more tracks from a connection with the tracks operated by the 
New York, New Haven and Hartford Raih-oad Company, at some point 
near the Union Station in the city of Providence, thence crossing over 
Canal street and North Main street, keeping, at least fifty feet north of 
the northeasterly corner of North Main street and Thomas street, and 
at least eighty feet north of the northwesterly corner of Thomas street 
and Benefit street, and running easterly, by a tunnel and the approaches 
tliereto, to a point on the westerly bank of the Seekonk river between 
Red Bridge and Washington Bridge, thence easterly across said Seekonk 
river to connections with the tracks of the Providence and Worcester 
Railroad Company and of the Boston and Providence Railroad Corpora- 
tion, and for this purpose said company may acquire a location not ex- 
ceeding one hundred feet in width between said points of connection, and 
as mucli greater width at said points of connection as may be required 
to make such connections by proper curves and approaches, and said 
company may construct, maintain, and operate a bridge of one or more 
tracks across said river, with a suitable draw therein not less than ninety 
feet in the clear, so as not unnecessarily to obstruct navigation, and 
subject to the approval of the secretary of war. 



DANA M ALONE, ATTORNEY-GENERAL. • 45 

Section 5 provides: — 

Said company is hereby authorized and empowered to acquire, by 
condemnation, from time to time, such lands, and such interests and 
estates in lands, as said company may from time to time take under the 
authority of this act, in the manner hereinafter provided. . . . 

From these sections it appears that the name of the Terminal 
Company was originally the New York, Providence & Boston & 
Old Colony Railroad Terminal Company; that it is empowered 
to locate, lay out, construct, maintain and operate, by steam or 
other power, a railroad; and to acquire property by condemna- 
tion. In other words, it is apparently clothed with the rights, 
and presumably the liabilities, of a public-service railroad corpo- 
ration. Obviously, it is a railroad company, unless the omission 
of the word "railroad" from its name prevents its becoming 
such a corporation. I do not think that this omission has such 
an effect. 

The term "railroad" has been broadly interpreted in other 
statutes of the Commonwealth. Under St. 1887, c. 270, pro- 
viding for employers' liability "by reason of the negligence of 
any person in the service of an employer who has the charge or 
control of any signal, switch, locomotive engine or train upon 
a railroad," it has been held that a short-line track built and 
operated by a city for the sole purpose of transporting gravel 
from one part of its water works to another was a railroad. 

In Coughlan v. Cambridge, 166 Mass. 268, on p. 276, the court 
said : — 

The track was a short and temporary affair, and the use of it and 
of the locomotive and cars was to continue only for a short time; but 
we think that it was a railroad within the meaning of the act. 

From the powers given the Terminal Company and from the 
definition given to the term "railroad" in this State, I am of 
opinion that the company is a railroad within the meaning of 
the statute relating to savings bank investments. 

But section 21 of the act of incorporation of the Providence 
Terminal Company provides that: — 



4G OPINIONS OF THE ATTORNEY-GENERAL. 

If said company shall fail to begin the location, lay-out, and con- 
struction of its said railroad as provided by section 3 of this act on or 
before IMay 15, A.D. 1906, and complete the same on or before May 
15, A.D. 1909, this act shall be void and of no effect, but the right of 
any person to recover damages by reason of anything theretofore done 
by said company shall in no wise be impaired. 

The location of the railroad has been filed and the necessary- 
proceedings in court taken, so that it has acquired by con- 
demnation the land upon which to build the road, and it has 
issued bonds secured by first mortgage upon its terminals, rail- 
road and franchise, which are guaranteed by the New York, 
New Haven & Hartford Railroad Company, but until the road 
is completed the company has not an indefeasible charter, but 
merely one that is subject to being rendered void in 1909. I 
also think that in the phrase "whose road is located wholly or 
in part in the same," in R. L., c. 113, § 26, cl. 3, par. b, the 
words "whose road is located" must be interpreted to refer to a 
physical roadbed completely constructed, and not to a location 
in the narrow sense of a place dedicated to the easement of the 
railroad and identified either by being plotted out on a map or 
by stakes driven in the ground. The purpose of the act itself 
leads inevitably to this conclusion. That purpose being to limit 
the field of investment to obligations secured in the most thor- 
ough manner, it can hardly be fulfilled if the act is so construed 
as to permit a company, having nothing but a charter and the 
condemnation of the land upon which to build the road, to 
mortgage these scanty assets and sell its bonds to savings banks. 

Upon the whole, therefore, although the matter is not free 
from doubt, and might bear a technical construction the other 
way, I am of opinion that though the Providence Terminal 
Company is a railroad company within the meaning of the act, 
Its first mortgage bonds, guaranteed by the New^ York, New 
Haven & Hartford Railroad Company, are not legal invest- 
ments for savings banks in Massachusetts, and will not be so 
until the construction of the roadbed is completed, and then 
only if it was begun before May 15, 1906, and finished before 
May 15, 1909. 



DANA MALONE, ATTORNEY-GENERAL. 47 



Insurance — Rebate — Commission on Policy on Life of 
Officer or Agent of Company. 

R. L., c. 118, § 68, providing in part that no life insurance companj- doing business 
in this Commonwealth, nor any agent thereof, shall "pay or allow, or offer to 
pay or allow as inducement to insurance, any rebate of premium payable on 
the policy, ..." prohibits the allowance by any such company to its agent 
of any commission on the premium on a policy upon the life of such agent, 
or the allowance to an officer of such company of any rebate of or commission 
on the premium on a policy upon the life of such officer. 



You ask the two following questions relative to R. L., c. 118, J^^^^, 
§68:- 



1 . If it is a violation of said statute for a life insurance company, duly 
authorized to transact the business of life insurance in this common- 
tvealth, to allow its agent a commission on the premium on a policy on 
his own life ? 

2. If it is a violation of said statute for such a company to pay or allow 
an officer of the company a rebate of or a commission on the premium 
on a policy on his own life ? 

R. L., c. 118, § 68, is as follows: — 

No life insurance company doing business in this commonwealth shall 
make or permit any distinction or discrimination in favor of individuals 
between insurants of the same class and equal expectation of life in the 
amount or payment of premiums or rates charged for policies of life or 
endo^vment insurance, or in the dividends or other benefits payable 
thereon, or in any other of the terms and conditions of the contracts it 
makes; nor shall any such company or any agent thereof make anj^ 
contract of insurance, or agreement as to such contract, other than as 
plainly expressed in the policy issued thereon; nor shall amj such company 
or agent pay or alloiv, or offer to pay or allow as inducement to insurance, 
any rebate of premium payable on the policy, or any special favor or ad- 
vantage in the dividends or other benefit to accrue thereon, or any valuable 
consideration or inducement not specified in the policy contract of 
insurance. 

The other sections of the statute which bear upon these ques- 
tions are sections 87, 89 and 111. Section 87 provides: — 

Every domestic insurance company shall file with the insurance com- 
missioner the name and residence of each person it appoints or employs 
to act as its agent in this commonwealth; and whoever shall assume to 



nsurance 
Commissioner. 

1906 
April 6. 



48 OPINIONS OF THE ATTORNEY-GENERAL. 

act as such agent, or, unless a licensed broker, shall in any manner for 
compensation aid in negotiating contracts of insurance on behalf of such 
corporation for a person other than himself, prior to the filing of such notice 
of appointment, shall be subject to the penalties of section one hundred and 
eleven. 

I am of opinion that both questions should be answered in the 
affirmative. The object of section 68 is, obviously, to prevent 
any insurant from obtaining in any way, directly or indirectly, 
an advantage over any other insurant of the same class. The 
object of section 87 is to permit registered agents and licensed 
brokers, and no others, to negotiate contracts of insurance for 
persons other than themselves. I do not think the phrase "for 
a person other than himself" was meant by the Legislature to 
be joined with the phrase "in any manner for compensation" 
in such a way as to indicate that a person could negotiate a con- 
tract for himself for compensation. The object of the section, 
as a whole, was, in my opinion, to exempt persons from liability 
who either negotiate contracts of insurance for themselves or for 
others, but gratuitously. 

I think this interpretation is borne out by the language of 
section 89, where it is provided that "an officer of a company 
or a person appointed as its agent for that purpose, or acting 
without compensation," may negotiate insurance. The words 
in this section, "or acting without compensation," to make 
sense must qualify the word "person," i.e., so as to read, "a 
person appointed as its agent or acting without compensation 
may," etc. These provisions indicate, to my mind, that it is 
I)erfectly proper under any circumstances for an officer of a 
domestic insurance company, or for a person appointed as its 
agent, or for a duly licensed broker, or for a person acting for 
himself solely, or for a person acting for others without com- 
pensation, to negotiate insurance, provided that they do not 
violate section 68 with respect to giving the person insured 
some special favor or advantage. The fact that all these per- 
sons may lawfully negotiate insurance does not give them the 
right to negotiate insurance in any manner in which the com- 
pany itself could not negotiate. 



DANA MALONE, ATTORNEY-GENERAL. 49 

I think it may be assumed that section 68, as well as the 
other sections above referred to, was enacted at a time when life 
insurance in Massachusetts was carried on as it is to-day, by the 
active solicitation of persons to be insured by agents and 
brokers; and I think it may further be assumed that the Legis- 
lature knew that the ordinary method of paying for such work 
was by commissions upon the business done by such agents and 
brokers. 

The question, therefore, narrows itself to this: Is the grant- 
ing of the customary commission to an agent or an officer of a 
corporation for securing a policy on his own life a rebate paid 
or allowed as an inducement to insurance? I am of opinion 
that it is. It is certainly a rebate paid or allowed, because it is, 
though in the form of a commission, an allowance to the person 
insured, given for no services rendered. It can hardly be main- 
tained that it is a service rendered to persuade one's self to take 
out insurance in one's own company. I think it is, further, a 
payment or allowance as an inducement to insurance. To test 
this, let us suppose that the agent of a company desired insur- 
ance in a first-class company. If he went to the agent of some 
other company he would pay the ordinary premium and the 
other agent would get the commission. If he said to the other 
agent, "I will insure myself in your company through you if 
you will insure yourself in my company through me, and we 
will thereby each get a commission," I believe that such a con- 
tract would be unlawful under section 68, because it would 
amount to some special inducement to insurance, paid or offered 
to each. 

Can the agent, then, accomplish this same result by writing 
his own insurance himself? In other words, can he stand in the 
dual position of the insurant and the person negotiating the con- 
tract? I am of opinion that he cannot, and that when he applies 
to the company for a policy he stands as a would-be insurant 
ind must be treated as such, and that he cannot be benefited 
3y the payment or allowance to him of any sum, whether it is 
n terms a commission or a rebate. • 



50 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Boiird 
of Registration 
in Pharmacy. 

1906 
May 9. 



Registered Pharmacist — Prescription — Registered Phy- 
sician — Place of Residence. 

a registered pharmacist may, under the pro\'isions of St. 1906, c. 281, fill a prescrip- 
tion -wTitten by a registered physician practising medicine in the city or town 
where such registered pharmacist is engaged in business, without regard to 
the place of residence of such physician. 

I am in receipt of your letter of the 7th inst., in which you 
ask if a registered pharmacist can fill a prescription written by 
a physician residing in another city or town, under chapter 281 
of the Acts of 1906, and I reply that a registered pharmacist 
may fill such prescription given by a registered physician prac- 
tising in such city or town, whether he resides there or not. 



To the Board 
of Registration 
in Pharmacy. 

liKW 
May 2.i. 



Board of Registration in Pharmacy — Registered Pharma- 
cist — Intoxicating Liquor — Sale — Certificate. 

a registered pharmacist who holds a certificate issued by the Board of Registration 
in Pharmacy, under the provisions of R. L., c. 100, § 23, and stating that 
such pharmacist is a proper person to be entrusted with a license to sell 
intoxicating liquor, as provided in section 21, such certificate having been 
issued before the passage of St. 1906, c. 281, authorizing registered pharma- 
cists to sell without license intoxicating liquor upon prescriptions of registered 
physicians practising witliin the same city or town, under the conditions set 
forth in such chapter, must, before taking advantage of the pro\asions of 
St. 1906, c. 281, receive a new certificate of fitness from such Board. 

In your letter dated May 24 you request my opinion upon 
the following question : — 

A certificate having been issued to a registered pharmacist previous 
to May 1, 1906, in accordance with section 23, chapter 100, and the 
owner of such certificate having been refused a sixth-class license, can 
the owner of said certificate sell intoxicating liquor on a physician's 
prescription in accordance with chapter 281 of the Acts of 1906, without 
obtaining another certificate applicable to said chapter 281, Acts of 1906? 



In reply to your inquiry I beg to say that in my opinion a 
registered pharmacist who holds a certificate issued in accord- 
ance with the provisions of section 23 of chapter 100 of the 
Revised Laws, before St. 1906, c. 281, took eft'ect, and who has 



DANA MALONE, ATTORNEY-GENERAL. 51 

not received a sixth-class license, is not authorized to sell in- 
toxicating liquor on a physician's prescription in accordance 
with chapter 281 of the Acts of 1906 without obtaining another 
certificate, issued in accordance with the provisions of section 
2 of chapter 281 of the Acts of 1906. 



Sealer of Weights and Measures — Inspection — Me- 
chanical Devices for Measuring Value of Commodity 
w^eighed. 

The duty of the Deputy Sealer of Weights and Measures, and of sealers of weights 
and measures appointed in the several cities and towns under the pro\dsions 
of R. L., c. 62, § 18, is confined to a determination of the accuracy of such 
appliances as register weights and dry or liquid measures, and does not require 
an examination of such mechanical devices as purport to register the value 
of the commodity weighed or measured. 

Your inquiry of June 11 requires my opinion upon the ques- To the 

TrG£lS1J TGT 

tion whether or not the Sealer of Weights and Measures has and Receiver- 

_ General. 

authority to seal and test computations "on barrel-shaped j i^oi^^ 
scales, so called, which register the price of the amount pur- 
chased as well as the weight in pounds and ounces." 

I am advised that the scales in question are known as "com- 
puting scales," and display the price of the article weighed upon 
the platform as well as the weight of such article. 

R. L., c. 62, § 8, provides for the appointment of a Deputy 
Sealer of Weights and Measures, whose duty, as determined by 
section 9, is to "try, adjust and seal the standard w^eights, 
measures and balances of every city and town at least once in 
five years. . . . He may also inspect the weights, measures and 
balances of any person which are used for sealing any goods, 
wares, merchandise or other commodity, or for public weighing 
in any city or town, and if he finds them inaccurate he shall 
forthwith inform the mayor or selectmen, who shall cause the 
provisions of this chapter to be enforced." 

Section 10 provides that the deputy "shall keep a record in 
detail of the places visited, and of the weights, measures and 
balances tested bv him. ..." 



52 OPINIONS OF THE ATTORNEY-GENERAL. 

A consideration of the provisions of this chapter and of the 
duties imposed upon the Deputy Sealer of Weights and Meas- 
ures, as well as upon sealers of weights and measures appointed 
in the various cities or towns in accordance with the require- 
ments of such statute, shows conclusively that the responsi- 
bility of such officers is confined to the determination of the 
accuracy of appliances for registering weights and measures as 
enumerated in section 6 relating exclusively to quantity, and 
that there is no authority to permit the trial, adjustment and 
sealing of such appliances as register the pecuniary value of any 
article weighed. 

The duty and responsibility of the officers in the premises are, 
therefore, to determine only the accuracy of such appliances as 
register weights and dry or liquid measures, and do not extend 
to such mechanical devices as purport to register the value of 
the commodity weighed. 



Explosives — Storage — " Building " — Iron Tank for 
KEEPING Gasolene. 

The word "building" as used in St. 1904, c. 370, § 3, as amended by St. 1905, c. 
280, providing that no building shall be erected or used in any city or town 
for the keeping, storage, manufacture or sale of gunpowder and certain other 
explosives without a license from the mayor and aldermen of a city or the 
selectmen of a town, a permit from the Chief 6f the District Police, or some 
person designated by him, applies to and includes an iron tank, closed except 
by pipe connections, and placed upon an uncovered brick foundation, 
designed and intended as a "container" of gasolene, and would apply to and 
include such a structure, even if under ground, from which the liquid is taken 
by means of a pump. 

M'u^-!^i.u.-.otu Heplying to your letter of the 12th, in which you ask for my 
i;.>urHt I'oi.w... opinioi^ j^g ^Q whether the word "building," as used in section 3 
Junejo. ^j. ^^j^^p^gj. 3yQ ^f ^^^ p^^^^ ^j ^g^^^^ ^^ amended by chapter 280 

of the Acts of 1905, applies to or includes an iron tank closed 
except by pipe connections and placed upon a brick foundation 
uncovered, and intended as a "container" for gasolene to be 
kept for sale, I have to say that in my opinion it does so apply. 
Considering the nature of the articles to be stored, namely, 
crude petroleum or any of its products, or other inflammable 



DANA MALONE, ATTORNEY-GENERAL. 53 

fluids, and the likelihood that they would be stored in a tank, 
so called, I think the Legislature intended to include such a 
structure in the word "building;" otherwise, a structure of any 
size might be erected for the purpose of the storage of petroleum 
or other inflammable fluids, without any regulations applying 
thereto. 

I am also of opinion that the word "building" would cover 
a tank similarly constructed, for a similar purpose, if under- 
ground, and the liquid pumped therefrom. 



Railroad Corporations — Acquisition and Control of 
Stock and Bonds of Domestic Street Railway Com- 
panies — Control of Domestic Street Railway Com- 
panies — Leasing — Forfeiture of Charter. 

House Bill No. 1358, providing in section 1 that "it shall be unlawful for a railroad 
corporation operating a railroad in this Commonwealth to acquire, own or 
hold, directly or indirectly, the stock or bonds of any street railway company 
having a location in any city or town in this Commonwealth, or to lease the 
franchise and property of any such street railway," and in section 2, that 
"upon petition of the attorney-general of the Commonwealth to the supreme 
court in equity ... a receiver shall be appointed who shall take possession 
and control of the property of any street railway" included in section 1, 
with further provision in section 4 for forfeiture of the charter of such 
company, after due notice and hearing, is ineffective to prevent the pur- 
chase of the stock of a domestic street railway by a railroad corporation 
chartered in another State and duly authorized thereto bj' the laws of that 
State. 

Such bill prohibits the leasing of the franchise of a domestic street railway company 
by a railroad corporation operating a. steam railroad within the Common- 
wealth. 

By reason of the provision for the dissolution of the charter of a domestic street 
railway company if its stock or bonds are owned or controlled, directly or 
indirectly, by a railroad corporation operating a steam railroad within the 
Commonwealth, such bill would prevent such acquisition and control. 

I have the honor to acknowledge the receipt of an order to the House 
adopted by the House of Representatives on the nineteenth sentativts. 
day of June, requiring the opinion of the Attorney-General June 21. 
upon certain questions regarding House Bill Xo. 1358, entitled 
"An Act relative to Investments by Railroad Corporations in 
Street Railway Companies." 



54 OPINIONS OF THE ATTORNEY-GENERAL. 

The bill submitted to me is in form as follows: — 

Sectiox 1. It shall be unlawful for a raih-oad corporation operating 
a raihoad in this Commonwealth to acquire, own or hold, du-ectly or 
indirccth', the stock or bonds of anj^ street railway company having a 
location in any city or town in this Commonwealth, or to lease the fran- 
chise and property of any such street railway company, or to become 
an associate in the formation of a company for the purpose of constructing, 
operating and maintaining such a street railway. 

Section 2. Any railroad corporation operating a railroad in this 
Commonwealth which now owns, directly or indirectly, stocks or bonds 
of a street railway company having a location in any city or town in 
this Commonwealth is hereby requested to sell and dispose of said stock 
or bonds within one year from the time this bill becomes a law. 

Section 3. Upon the petition of the attorney-general of the Com- 
monwealth to the supreme court in equity and such notice as said court 
may order to parties in interest, a receiver shall be appointed who shall 
take possession and control of the propertj^ of anj^ street railway company 
having a location in a city or town in this Commonwealth the capital 
stock or bonds of which are beUeved to be owned or controlled by any 
railroad corporation operating a railroad in this Commonwealth. 

Section 4. After a hearing upon said petition, if the court shall find 
that the capital stock or any part thereof or bonds or any part thereof 
of any street railway company having a location in the Commonwealth 
is held directly or indirectly by any railroad corporation operating a 
railroad in the Commonwealth, or that the franchise of any street railway 
company is held by lease by any railroad corporation operating a railroad 
in this Commonwealth, the court shall enter a decree that the charter 
and franchise of such street railway company are forfeited and that its 
offices be closed, and shall direct said receiver to sell and dispose of the 
property and franchise of said street railway company and apply the 
funds received from such sale to the payment of debts and liabilities of 
such street railway company in accordance with the provisions of the 
statutes of the Commonwealth appUcable to insolvent debtors. 

Section 5. After the payment of debts and habilities of such street 
railway company and the payment of expenses of said receivership the 
remaining surplus, if any there be, shall be ordered to be distributed as a 
dividend to stockholders of said street railway company. 

Section 6. This act shall take effect upon its passage. 

The first inquiry presented by the honorable House of Repre- 
sentatives is "whether the bill annexed is legally sufficient to 
prevent the purchase of the stock of street railway companies 



DANA MALONE, ATTORNEY-GENERAL. 55 

having a location in this Commonwealth by railroad corpora- 
tions operating steam railroads in this Commonwealth." 

Section 1 of the bill in terms forbids the purchase by a rail- 
road corporation operating a steam railroad within the Com- 
monwealth of the stock of any street railway company having a 
location therein. It is, however, to be observed that in the case 
of a railroad corporation chartered by this Commonwealth such 
acquisition of stock is already prohibited by the provision of 
R. L., c. Ill, § 77, that: — 

No railroad corporation, unless authorized by the general court or by 
the provisions of the following five sections, shall directly or indirectly 
subscribe for, take or hold the stock or bonds of or guarantee the bonds 
or dividends of any other corporation; 

but it is doubtful if either of these statutes can effectually pre- 
vent a transaction of the character described when such trans- 
action is the act of a corporation chartered in another State, 
and done in and under the lawful authority of that State. If, 
therefore, House Bill No. 1358 is to be construed as applicable 
as well to corporations chartered elsew^here as to those chartered 
by the Commonwealth, in my opinion it is ineffective to prevent 
the purchase of the stock of a domestic street railway company 
by a railroad corporation chartered in another State and duly 
authorized thereto by the laws of that State. 

To the second inquiry of the honorable House of Representa- 
tives, "whether the bill annexed is legally sufficient to prevent 
the leasing of the franchise of street railways having a location 
in any city or town in this Commonwealth by railroad corpora- 
tions operating steam railroads in this Commonwealth," I reply 
that the bill prohibits the leasing of the franchises of domestic 
street railways by railroad corporations operating steam rail- 
roads wuthin the Commonwealth, but I ought to say that the 
leasing of the franchise of a domestic street railway company 
by a railroad corporation is now, in my opinion, without au- 
thority in law. 

In the third inquiry of the honorable House of Representa- 
tives my opinion is sought upon the question "whether the bill 



56 OPINIONS OF THE ATTORNEY-GENERAL. 

annexed prevents the control, directly or indirectly, of street 
railways having a location in any city or town in this Common- 
wealth by railroad corporations operating steam railroads in 
this Commonwealth." I am of opinion that by reason of the 
provisions contained in sections 3 and 4, providing for the dis- 
solution of a domestic street railway corporation w^henever the 
stock of such corporation or any part thereof shall be found to 
be directly or indirectly owned or controlled by a railroad cor- 
poration operating a steam railroad within the Commonwealth, 
the proposed bill would prevent such ownership and control. 

The fourth inquiry is as follows: "If in the opinion of the 
Attorney-General the bill annexed fails to prevent the ownership 
of the stock of said street railway companies, or the leasing of 
the franchise of said street railway companies, and, in short, 
the control, directly or indirectly, of said street railway com- 
panies by railroad corporations operating street railways in 
■ this Commonwealth, what amendments he would suggest to ac- 
complish the end which this bill is intended to accomplish." 

As already pointed out. House Bill No. 1358, if passed, w^ould 
probably prevent the ownership of the stock of street railway 
companies, but the form of the same can be improved, and I 
have the honor to advise the honorable House of Representa- 
tives that in my opinion the substance and purpose of the same 
can be accomplished so far as may be by the passage of an act 
in substance as follows: — 

If a foreign corporation acquires, owns or controls, directly or indirectly, 
capital stock, bonds or other evidences of indebtedness of any domestic 
street railway company having a location in any city or town in this 
Commonwealth, unless authorized so to do by the laws of this Common- 
weahh, the supreme judicial court shall have jurisdiction in equity in its 
discretion to dissolve such domestic street railway company, and the 
attorney-general shall institute proceedings for such dissolution and for 
the proper disposition of the assets of such company. 



DANA MALONE, ATTORNEY-GENERAL. 5^ 



Cities or Towns — Massachusetts Hospital for Feeble- 
minded — Liability for Support of Inmates — Notice. 

R. L., c. 85, § 20, providing that "a city or town in which an inmate of the state 
hospital is found to have a legal settlement shall be liable to the common- 
wealth in like manner as one town is liable to another in like cases," does 
not limit the liability of such city or town to a period of three months next 
preceding the date of notice, as is the case between towns under R. L., c. 81, 
§ 17, and such liability is not affected by want of notice. 

You request mv opinion upon the claim made by the Com- To the Super- 

"^ p ' t t "^ P intendent of 

monwealth against the town of Winthrop for the support of state Aduit 



Catherine F. Ryan, who was committed to the School for the 
Feeble-minded on March 12, 1905, by a Suffolk court. You 
say that there was some difficulty in obtaining her history, 
and that you were not justified in claiming settlement in the 
town of Winthrop until Nov. 22, 1905. Denial of settlement 
was made December 4, and, later, settlement was acknowledged 
and the school sent a bill to the town, which covered the whole 
period from the date of commitment, March 12, 1905. The 
town of Winthrop has taken the position that, under R. L., 
c. 85, § 20, it is not responsible for the charges for a period 
more than three months prior to the first notice given to it, 
which was on Nov. 22, 1905. The question is whether this 
contention of the town is sound. 

The provision under which towns are liable for the support of 
settled inmates of the Massachusetts School for the Feeble-minded 
is found in R. L., c. 87, § 120, which provides as follows: — 

The charges for the support of each inmate in the custodial department 
of said school shall be three dollars and twenty-five cents a week, and 
shall be paid quarterly. Such charges for those not having known settle- 
ments in the commonwealth shall, after approval by the state board of 
insanity, be paid by the commonwealth, and may afterward be recovered 
by the treasurer and receiver general of such inmates, if of sufficient 
ability, or of any person or kindred bound by law to maintain them, or of 
the place of their settlement, if subsequent!}' ascertained. . . . 

The facts of this case bring it directly within this provision 
of law. This is in effect similar to the section for the recovery 



190(5 
July 18. 



5S OPINIONS OF THE ATTORNEY-GENERAL. 

of the charges for the support of insane persons in the various 
insane hospitals, which is found in R. L., c. 87, § 78. In neither 
of these sections is there any suggestion that the provision of 
11. L., c. 81, § 17, that as between towms the time for which re- 
covery may be had is Umited to three months next preceding 
the date of notice, are appHcable to the Commonwealth. 

The section upon which the town relies is R. L., c. 85, § 20, 
which is as follows: — 

A city or town in which an inmate of the state hospital is found to 
have a legal settlement shall be liable to the commonwealth for bis support 
in like manner as one town is hable to another in hke cases; and, in such 
case, the state board of charity shall adopt such measures relative to 
notice, removal of a pauper and recovery of expenses as are prescribed 
for towns in like cases. 

This provision refers to the charges for the support of paupers 
at the State hospitals, and has no reference whatsoever to the 
charges for the support at the insane hospitals or at the school 
for the feeble-minded. 

The case of Adams v. The Inhabitants of IjJswich, 116 Mass. 
570, is conclusive of the present question. That was a case in 
which the Treasurer of the Commonwealth brought suit for the 
support of an insane pauper committed to the Northampton 
Lunatic Hospital. The town set up the defence that there had 
been no notice to it under the statute. ' The court said : — 

The right of recovery in behalf of the commonwealth is not governed 
by the provisions regulating claims between different towns. It is not 
limited by reason of want of notice. 

At this time the provisions of G. S., c. 71, § 49, were in force, 
and were in effect the same as R. L., c. 85, § 20, upon which the 
town of Winthrop relies now. 

Consequently, there can be no question but that the town is 
liable for the full amount claimed from the date of commitment. 



DANA MALONE, ATTORNEY-GENERAL. 59 



Massachusetts Highway Commission — Telegraph, Tele- 
phone AND Electric Light Poles — Original Locations. 

The Massachusetts Highway Commission have no jurisdiction to grant original 
locations for telephone, telegraph or electric light poles independently of the 
local board, which, under the provisions of St. 1906, c. 117, are constituted 
the tribunals for that purpose. 

The Massachusetts Highway Commission request my opinion To the 

. p • Massachusetts 

upon the question of their jurisdiction in the matter of granting g^^way_^^ 
locations for Hues of telephone, telegraph or electric light poles j^^^\^ 
on State highways. 

R. L., c. 122, § 2, as amended by Acts of 1903, c. 237, and 
Acts of 1906, c. 117, is as follows: — 

The mayor and aldermen of a city or the selectmen of a town thi'ough 
which the lines of a company are to pass shall give the company a writing 
specifying where the poles may be located, the kind of poles, the height 
at which, and the places where, the wires may run. Any company, 
except street railway companies, desiring permission to erect poles, piers, 
abutments or other fixtures upon or along any public way shall, in writing, 
petition the said mayor and aldermen or selectmen therefor. A public 
hearing shall be held on such petition, and written notices of the time 
and place at which such hearing will be held shall be mailed at least tlu-ee 
days before said hearing, by the clerk of the city or the selectmen of the 
town in which the petition for locations has been made, to the owners of 
real estate along the ways or parts of ways upon which it is proposed to 
construct said line, as determined by the last preceding assessment for 
taxation. The clerk of the city or the selectmen of the town shall endorse 
upon the order or specification of locations granted, his or their certificate 
that notices were sent and a hearing held as herein provided, and no such 
order or specification shall be valid without such certificate. After the 
erection of the lines the mayor and aldermen or selectmen may, after 
giving the company or its agents an opportunity to be heard, or upon 
petition of the companj- without hearing or notice, direct any alteration 
in the location or erection of the poles, piers or abutments, and in the 
height of the wires ; and no permit shall be required for renewing, repair- 
ing or replacing poles, piers, abutments or other fixtures once erected 
under the provisions of law. Such certificates, specifications and decisions 
shall be recorded in the records of the city or town. 

R. L., c. 47, which relates to State highways, contains no spe- 
cific provision dealing with the location of telegraph, telephone 



60 OPINIONS OF THE ATTORNEY-GENERAL. 

or electric light i)oles on State highways. There are two sec- 
tions which refer to the jurisdiction of the State Highway Com- 
mission, sections 11 and 21. 
Section 11 provides: — 

Said commission shall keep all state highwaj^s reasonably clear of 
brush, shall cause suitable shade trees to be planted thereon if practicable, 
and may establish and maintain watering troughs upon said highways. 
No opening shall be made in any such highway nor shall any structure 
be placed thereon, nor shall any structure which has been placed thereon 
be changed or renewed, except in accordance with a permit from the 
commission, which shall exercise complete and permanent control over 
such highways. 

Section 21 provides: — 

No state highway shall be dug up for laying or placing pipes, sewers, 
poles, wires or railways or for other purposes, and no tree shall be planted 
or removed or obstruction placed thereon, without the written permit 
of the highway commission, and then only in accordance with the regula- 
tions of said commission; and the work shall be done under the super- 
vision and to the satisfaction of said commission, and the entire ex])ense 
of replacing the liighway in as good condition as before shall be paid by 
the persons to whom the permit was given or by whom the work was done; 
but a city or town may dig up such state highway without such approval 
of the highway commission in case of immediate necessity; but in such 
cases it shall be forthwith replaced in as good condition as before at the 
expense of the city or town. Said commission shall give suitable names 
to the state highways, and may change the name of any way which 
becomes a part of a state highway. They shall erect suitable guide posts 
at convenient points along state highways. 

In a brief filed by counsel for the telegraph company, and 
annexed to the communication submitted by the State Highway 
Commission, it is contended that the use of the words "shall 
exercise complete and permanent control over such highways" 
is sufficient to vest in the commission the right and power to 
grant locations for telegraph or telephone poles upon State high- 
ways, independently of any action upon the part of the mayor 
and aldermen in the case of cities or of boards of selectmen in 
the case of towns. 



DANA MALONE, ATTORNEY-GENERAL. 61 

I am of opinion, however, that a consideration of section 21, 
above quoted, shows conclusively that such was not the purpose 
of the Legislature and is not the effect of section 11. Section 21 
clearly contemplates that the State Highway Commission, in 
the matter of the placing of pipes, sewers, poles or wires, shall 
act only in a supervisory capacity, and shall have no authority 
to grant original locations for telegraph or telephone poles inde- 
pendently of the local boards which are constituted the tri- 
bunals for that purpose under the provisions of St. 1906, c. 117. 
(See, also, 1 Op. Atty.-Gen. 317.) It follows, therefore, that 
the Massachusetts Highway Commission have no authority or 
jurisdiction to grant original locations for telephone, telegraph 
or electric light poles. 



Hours of Labor — Insane Hospital — Day's Work — 
Half-holiday — Sunday Employment — Work by the 
Hour — Appropriations. 

St. 1906, c. 517, § 1, providing, in part, that "eight hours shall constitute a day's 
work for all laborers, workmen and mechanics now or hereafter employed by 
the Commonwealth, . . . but in cases where a Saturday half-holiday is given 
the hours of labor upon the other working days of the week may be increased 
sufficiently to make a total of forty-eight hours for the week's work," does 
not require a nine-hour wage, and does not prohibit the employment of 
laborers, workmen and mechanics by the Commonwealth for more than eight 
hours a day, when the contract for such employment is by the hour. 

Such statute provides for an eight-hour day upon Sunday as well as upon other days 
of the week for persons properly employed upon that day, and does not 
restrict the employment of persons required to work seven days a week to 
forty-eight hours. 

If a half-holiday is given, it must be a Saturday half-holiday. 

If the appropriations for the maintenance of the Worcester Insane Hospital are 
fixed for the year, the trustees of such hospital are not authorized to exceed 
the same to comply with the provisions of such chapter. 

In your letter dated July 25, you state that the trustees of '^°^^^ Trustees 
the Worcester Insane Hospital desire my opinion in regard J^^o''<=e3ter 
to certain aspects of the so-called eight-hour law, passed at 
the last session of the Legislature. 

This act is chapter 517 of the Acts of 1906, and provides in 
its first section that : — 



Hospital. 

1906 
July 26. 



(^2 OPINIONS OF THE ATTORNEY-GENERAL. 

Eight hours shall constitute a day's work for all laborers, workmen 
and mechanics now or hereafter employed, by or on behalf of the Com- 
monwealth, or of any county therein, or of any city or town which has 
accepted the provisions of section twenty of chapter one hundred and six 
of the Revised Laws; but in cases where a Saturday half -holiday is given 
the hours of labor upon the other working days of the week may be 
increased sufficiently to make a total of forty-eight hours for the week's 
work. 

To your questions I reply as follows : — 

1. Does the eight-hour law carry with it a nine-hour wage? 
It does not require a nine-hour wage. 

2. Can laborers, workmen and mechanics in State institu- 
tions work more than eight hours per day, and if so, under 
what conditions? 

In my opinion, laborers, workmen and mechanics working in 
State institutions may, if employed by State officials by the 
hour, work more than eight hours a day. St. 1906, c. 517, § 1, 
is similar in terms to the federal act of June 25, 1868 (15 Stat. 
77), Rev. Sts., § 3738, which provides that "eight hours shall 
constitute a day's work for all laborers, workmen and mechanics 
who may be employed by or on behalf of the government of the 
United States." 

In the case of United States v. Martin, 94 U. S. 400, the 
United States Supreme Court had this act under consideration, 
and, speaking by Mr. Justice Hunt, said: — 

This was a direction by Congress to the officers and agents of the 
United States, establishing the principle to be observed in the labor of 
those engaged in its service. It prescribed the length of time which 
should amount to a day's work, when no special agreement was made 
upon the subject. There are several things which the act does not regu- 
late, which it may be worth while to notice. 

First. — It does not establish the price to be paid for a day's work. . . . 

Second. — The statute does not provide that the employer and the 
laborer may not agree with each other as to what time shall constitute 
a day's work. . . . 

We regard the statute chiefly as in the nature of a direction from a 
principal to liis agent, that eight hours is deemed to be a proper length 
of time for a day's labor, and that his contracts shall be based upon 
that theory. . . . 



DANA MALONE, ATTORNEY-GENERAL. 63 

It is to be noticed that since this decision an act has been 
.passed (Act of Aug. 1, 1892, chapter 352, 27 Stat. 340) relating 
ito hours of labor of laborers and mechanics employed upon 
public works of the United States and of the District of Colum- 
bia, which expressly provides that it shall be unlawful to require 
or permit a laborer or mechanic to work more than eight hours 
in any calendar day. 

The ISIassachusetts statute regulating the hours of labor has 
been construed by two of my predecessors. St. 1890, c. 375, 
provided that: — 

Nine hours shall constitute a day's work for all laborers, workmen and 
mechanics now employed or who may be emploj^ed bj^ or on behalf of the 
Commonwealth of Massachusetts or any city or town therein; and all 
acts and parts of acts inconsistent with this act are hcrebj^ repealed. 

On April 24, 1891, the Hon. Albert E. Pillsbury (1 Op. Atty.- 
Gen. 10), then Attorney-General, advised the Governor that 
this statute did not prohibit the employment of labor in State 
institutions for more than nine hours a day, if such labor was 
contracted for and paid for by the hour. 

By St. 1891, c. 350, this act was amended so as to apply to 
counties. By St. 1893, c. 406, it was provided : — 

All contracts hereafter made by or on behalf of the Commonwealth 
requiring the emplojTiient of manual labor shall provide that persons 
employed in the performance of such labor under any such contract shall 
not be required to work more than nine hours in each daj'', and that said 
nine hours shall constitute a day's work. 

In St. 1894, c. 508, §§ 7 and 8, the provisions of St. 1890, 
c. 375, as amended, and St. 1893, c. 406, were substantially 
re-enacted. This act also provided a penalty for the violation 
of its provisions. 

St. 1899, c. 344, § 1, provided that eight hours should con- 
stitute a day's work for laborers, workmen and mechanics em- 
ployed by a city or town, and section 3 of that chapter, amended 
by St. 1900, c. 357, provided that this act should take effect 
only upon its acceptance by the city or town. 



04 OPINIONS OF THE ATTORNEY-GENERAL. 

On ]\Iay 14, 1900, the Hon. Hosea M. Knowlton, then Attor- 
ney-General, in an opinion, said: — 

St. 1894, c. 508, § 7, which provides that "Nine hours shall coastitute 
a day's work for all laborers," etc., refers only to employment by the day. 
It does not and is not intended to prohibit the employment of labor by 
the horn-, if the laborer is willing to be so employed. 

If a laborer is told that he can only be employed upon his agreement 
to work more than nine hours per day at a given rate per hour, and accepts 
the employment upon such terms, such employment is an evasion of the 
law, but not, in my judgment, a violation of it. Being a penal law, it is 
to be construed strictly. A person so employed, however powerful the 
inducement, is, nevertheless, in contemplation of law, working voluntarDy, 
and the case, so for as the statute is concerned, is the same as though no 
such threat were held out to him. Emploj^ment by the horn* is not within 
the statute, 

St. 1894, e. 508, §§ 7 and 8, and St. 1899, c. 344, as amended, 
appear as R. L., c. 106, §§ 19, 20 and 21, without substantial 
changes, and the same chapter contains a provision for penalty. 

The present statute reduces the number of hours in a day's 
work for the Commonwealth or a county from nine to eight, 
with a provision that the number of hours may be increased if a 
Saturday half-holiday is given; otherwise, however, the law is 
not materially changed, and the statements quoted above from 
the opinion of my predecessor are, it se^ms to me, applicable to 
the law as it now stands, if the word "eight" be substituted 
for the word "nine." 

3. What application has the act to laborers, workmen and 
mechanics whose duties ordinarily call for Sunday work? 

The statute provides for an eight-hour day on Sunday as well 
as on other days of the week for persons properly employed on 
that day as well as on other days of the week. 

4. In cases where the ordinary duties of laborers, workmen 
and mechanics require them to work seven days a week, does 
the law restrict their employment to a total of forty-eight hours, 
or does fifty-six hours in such cases constitute a week's work? 

The law does not restrict the employment of persons required 
to work seven days a week to a total of forty-eight hours. 



DANA MALONE, ATTORNEY-GENERAL. 65 

5. If a half-holiday is given, must it be a Saturday half- 
holiday? 

Yes; if the half day is to be made up on other working days. 

6. If the appropriations for the maintenance of institutions 
ire fixed for the year, shall we be warranted in overrunning the 
5ame to comply with the provisions of the eight-hour law? 

No. 



jOVErxor — Registered Bonds of the Commonwealth — 
Signature — Rubber Stamp. 

The Governor may afl&x his signature to registered bonds issued by the Common- 
wealth by means of a rubber stamp, provided such stamp is retained in his 
possession and applied by him, or, in his presence, by some one authorized 
by him to make such application. 

Replying to your letter of the 23d, in which you ask my To the 
•pinion as to whether His Excellency the Governor can affix and Receiver- 

. CJeneral. 

ns name bv a rubber stamp to registered bonds issued bv the , i^oe 

. , ''' July 31. 

]'ommonwealth, or whether it is necessary for him to personally 

ign with his own hand, I have to say that in my opinion he 
aay impress his name with a stamp instead of a pen, provided 
le keep the same in his possession and apply it himself or cause 
t to be applied in his presence. The Attorney-General of the 
Jnited States, in an opinion (1 Op, Atty.-Gen. 670) to the 
^resident in reply to a similar question, decided "that the 
doption and acknowledgment of a signature written by an- 
'ther makes it a man's own; that there will be great difficulty 
a maintaining the proposition as a legal one, that when the 
aw required signing it means that it must be done with pen and 
nk; that a signature made with straw dipped in blood would 
•e equally valid and obligatory; he may write his name in full 
r may write his initials or may print his initials with a pen; 
hat pen may be made of a goose quill or of metal; and I see no 
igal objection to its being made in the form of a stamp or 
opper-plate. It is still his act; it flows from his assent, and is 
he evidence of that assent." 



66 OPINIONS OF THE ATTOENEY-GENERAL. 



Taxation — Exemption — "Farming Utensils" — Person. 

Under the provisions of R. L., c. 12, § 5, cl. 11, exempting from taxation among, 
other specified articles of property, the "farming utensils of every person," 
such exemption should in general be confined to implements, tools and utensils 
used by any person in the pursuit of agriculture. 

As used in such statute, the word "person" does not include a corporation. 

c°rumi'^'n r R^plyi^g to vouF Tcquest foF ail Opinion as to exemption 
septei^ber 28. ^TOTD. taxation bv local assessors of farming utensils of every 
person, under R. L., c. 12, § 5, el. 11, a list of articles which 
have in some instances been construed as exempt having been 
furnished me, I am of opinion that you should adopt a some- 
what arbitrary rule. Iii my opinion the following would be 
exempt : — 

All hand tools for farming. 

Plow, including "Riding Plow." 

Harrow. 

Cultivator. 

Planter, geared and otherwise. 

Mowdng machine. 

Tedder. 

Horse rake. 

Reaper, including reaper and binder. 

Potato digger. 

Ensilage cutter. 

Spray pump, also tank. , 

Churn. 

Wagon, where used principally for farm purposes. 

Cart, where used principally for farm purposes. 

Sled, where used principally for farm purposes. 

Chains. 

Manure spreader. 

Upon the other hand, the following would not be exempt: — 

Windmill, including pump. 

Boiler (steam), also cooker. 

Engine (steam), (gas), (portable), (stationary), (traction). 

Power saw (for fire wood). 

Fruit evaporator. 

Cider mill and press. 



DANA M ALONE, ATTORNEY-GENERAL. 

Incubator. 

Cream separator. 

Cream cooler. 

Honey extractor (centrifugal) . 

Carriage. 

Wagon (other than farm wagon). 

Cart (other than farm cart) . 

Sled (other than farm sled) . 

Sleigh. 

Pung. 

Harness (blankets, whips, robes). 

I am of opinion that the word "person" as used in this 
statute does not include a corporation. 

I find several decisions which hold that a wagon is a farm 
utensil; also, under 20 Kan. 555, that a McCormick Advance 
reaper and mower is a farming utensil. 

It is difficult to define what would or would not be exempt, 
on principle, but it would seem that exemptions should be con- 
fined to the farming utensils, meaning all those implements, 
tools and utensils used in the pursuit of agriculture and 
husbandry. 



Pauper Law — Settlement — Effect of Retroactive Stat- 
ute UPON Derivative Settlement. 

Where the derivative settlement of a mother which was not fully acquired sub- 
sequent to May 1, 1860, and did not prevent the subsequent acquisition of 
a settlement in the same place, was defeated and lost by the retroactive pro- 
vision of R. L., c. 80, § 6, the settlement of a daughter derived from that of 
the mother subsequent to May 1, 1860, is not lost or affected by the loss of 
the settlement of the mother. 

Replying to your request for an opinion as to whether the To the 
settlement of Amelia F. West was affected bv the provisions of charity, 
ot section 6 of chapter 80 of the Revised Laws, the material September 28. 
facts are as follows : — 

Amelia F. West, born Dec. 25, 1862, at Tisbury, Mass., ille- 
gitimate, was committed to the Massachusetts School for 
Idiotic and Feeble-minded Youth Sept. 23, 1875, and has been 



68 OPINIONS OF THE ATTORN-EY-GEN-ERAL. 

an inmate of that institution since that time as a charge to the 
town of Tisbury. Her mother. Mary F. "West, was born in 1S20 
in Richmond. Va.. and came to Tisbury, Mass., when a child, 
and Uved in that town continuously until her death, Oct. 17, 
1894. She was married in Tisbury, Jan. 27, 1840, to Edward 
F. West, and Uved with him until his death, June 7, 1854. 
Mary F. West did not, as the widow of said Edward F. West, 
after ]May 1, 1S60, Uve any period of five years without receiv- 
ing relief as a pauper. 

R. L., c. 80, § 6 (St. 1898, c. 425, § 2), is as follows: — 

Any settlement which was not fully acquired subsequent to the first 
day of May in the year eighteen hundred and sixty is hereby defeated 
and lost, unless such settlement prevented a subsequent acquisition of 
settlement in the same place; but if a settlement acquired by marriage 
is so defeated, the former settlement of the wife, if not also so defeated, 
shall be ^e^'ived. A person who is absent from the commonwealth for 
ten consecutive years shall lose his settlement. 

From these facts it appears that Mary F. West had, on Dec. 
25, 1862, a settlement in Tisbury derived from her husband, 
Edward F. West. This settlement was not fully acquired subse- 
quent to May 1, 1860. The existence of it did not prevent a 
subsequent acquisition of a settlement by ^lary F. ^^ est, for she 
has not since that time lived any period of five years in that 
town without ^ecei^*ing relief as a pauper. Any settlement 
which she had prior to her marriage was not acquired subse- 
quent to May 1, 1860, she having married Edward F. West in 
1840. It follows that by the operation of Acts of 1898, c. 425, 
§ 2 (R. L., c. 80, § 6), the settlement of Mary F. West in Tis- 
bury was defeated and lost. 

The question raised by the present question is whether the 
settlement of Ameha F. West, which was derived from her 
mother, was also, by the operation of this statute, defeated and 
lost. 

R. L., c. 80, § 1, cl. .3, provides: — 



Illegitimate children shall have the settlement of their mother at the 
time of their birth if she then has anv within the commonwealth. 






I 



DANA MALOXE, ATTORNEY-GENERAL. 69 

In St. 1793, c. 34, this provision was in the following form: — 

Illegitimate children shall follow and have the settlement of their 
mother at the time of their birth, if any she shall then have, within the 
Commonwealth. . . . 

This statute was interpreted by the court in Boylston v. Prince- 
ton, 13 Mass. 381. In that case it was said: — 

The rule, as now established, is that illegitimate children shall have 
the settlement of their mother at the time of their birth; meaning, as we 
apprehend, that the settlement which the mother had at the time of the 
birth of the child should be the settlement of the child, until it should 
gain a new settlement b}' its own act. 

This is even more clearly the meaning of the statute in its 
present form; consequently, Amelia F. West, by reason of her 
birth in the town of Tisbury and by reason of that fact alone, 
acquired a settlement in that town which was unaffected by any 
change in the settlement of her mother. The birth taking place 
after May 1, 1860, the settlement was fully acquired subsequent 
to that date, and it was consequently not defeated and lost by 
the operation of St. 1898, c. 425, § 2 (R. L., c. 80, § 6). 



Trust Company — Loax to Single Individual — "Surplus." 

A trust company, subject to the pro\-isions of R. L., c. 116, § 34, may not legally 
loan money to a single indhidual in excess of one-fifth of its surplus accounts 
and paid-up capital, excluding the profit and loss account. 

My opinion has been orallv requested bv vou as to whether To the Bank 

' ' , Commissioner 

the phrase "surplus account," m R. L., c. 116. 5^ .34, shall be ^ ^^ 

"^ ^ ^ _ "^ October lb. 

taken to include or exclude undivided profits. The section 
is as follows : — 

The total habihties of a person, other than cities or towns, for money 
borrowed, including in the Mabihties of a firm the habihties of its several 
members, to such corporations ha\'ing a capital stock of five himdred 
thousand dollars or more shall at no time exceed one-fifth part of the 
surplus account and of such amount of the capital stock as is actually 
paid up. . . . 



70 OPINIONS OF THE ATTORNEY-GENERAL. 

It has been argued that the case of Leather Manufacturers 
Natiojial Bank v. Treat, 128 Fed. Rep. 262, is in point, but the 
court expressly recognized in that case the fact that the term 
"surplus," as used in the nomenclature of banks, does not in- 
clude undivided profits. On page 264 the court said: — 

Undivided profits do not become a part of this fund until they have 
been assigned to it by some formal act of the institution; and it is for the 
directors and not for the taxing officers of the govermnent to determine 
when this should be done. 

The decision was to the effect that the capital, for purposes of 
taxation and within the meaning of the statute, was all the 
money employed by the institution for banking purposes. On 
this ground it was held that the undivided profits were capital, 
and consequently taxable. It is in no sense a decision that the 
word "surplus" includes the undivided profits. Indeed, the 
court expressly gives its opinion to the contrary. 

In the Massachusetts statute the term used is "surplus ac- 
count," which evidently indicates a fund set aside under a par- 
ticular account. 

It seems to me clear that a trust company, subject to the pro- 
visions of section 34, above quoted, cannot lawfully loan money 
to a single individual in excess of one-fifth of its surplus account 
and paid-up capital, excluding the profit, and loss account. 



Insurance — Fire Insurance — Explosion. 

A fire insurance company may not add to its policy a slip or rider, containing an 
agreement that, in consideration of the payment of an additional premium, 
the policy shall include loss or damage by fire caused by an explosion upon 
the insured premises, payment in case of loss to be at the value of the prop- 
erty before such explosion, since the effect of such policy is to provide insur- 
ance against loss from explosion. 



in°8ur^ncp You ask my opinion as to whether a fire insurance company 

'im'""*"^' may attach to the standard form of policv a rider which reads 

Novembers. » ,1 jr ^ 

as toUows: — 

In consideration of an additional premium equal to ten per centum 
of the amount of premium otherwise due on this policy, it is understood 



DANA MALONE, ATTORNEY-GENERAL. 71 

and agreed, in the event of any explosion on the premises covered, fire 
ensuing, this company shall pay the loss on the property hereby insured 
and injured by fire at the value thereof before the explosion, provided, 
that if there is other concurrent insurance upon the insured property 
damaged this company shall be liable only for such proportion of the loss 
or damage as the amount hereby insured bears to the whole amount of 
insurance thereon, whether such other insurance contains a similar clause 
or not. 

The question is, " Can a fire insurance company insure against 
loss or damage by explosion when a fire does ensue?" This 
question, in a slightly different form, was answered in the nega- 
tive by a former Attorney-General (see 1 Op. Atty.-Gen. 431), 
and that unquestionably is the law. The rider above quoted, 
however, attempts to evade this prohibition by purporting to 
insure loss on property "injured by fire." 

Inasmuch as payment in case of loss is to be made at the 
value of the property "before the explosion," the policy, in 
effect, insures against the loss arising both from the explosion 
and from the fire; and from the fact that an additional premium 
is charged, it is evidently intended to cover loss caused solely 
by explosion. Such a rider cannot lawfully be issued by a fire 
insurance company. 



City and Town — Debts — Refunding or Renewal. 

Under the provisions of R. L., c. 27, § 18, that cities and towns may renew or refund 
any debts in securities payable within the period fixed by section 11 of such 
chapter, a note issued by a town to renew or refund a debt incurred for school- 
house construction, and payable within the required period of twenty years 
from the date of the original issue, is a valid obligation of such town. 

You ask my opinion as to the renewal or refunding of a note To the 

Treasurer 

issued by the town of Walpole on Nov. 2, 1896, for ten years, and Receiver- 

^ *^ _ General. 

in payment of a debt incurred for schoolhouse construction, -^^^^^^^ i9 
which it was voted to renew for a period not exceeding ten 
years on March 5, 1906. 

Section 11 of chapter 27 of the Revised Laws provides 
that debts incurred in building schoolhouses and other public 
buildings, and in procuring land therefor, shall be payable 



OPINIONS OF THE ATTORNEY-GENERAL. 



within twenty years, 
that : — 



Section 18 of the same chapter provides 



Cities and towns may pay, or provide for the payment of, any debts 
at earlier periods than is required in this chapter; or may renew or refund 
the same in securities paj^able within the required period. 

It has been objected that renewal of this note would not be 
consistent with the provisions of section 12, which provides that 
eight per cent, shall be raised annually by taxation to pay the 
principal of notes payable at a period not exceeding ten years, 
but I think that section refers to "all other debts mentioned in 
section eight," and that the provision in section 12, line 3, "in 
all -other cases may . . . establish a sinking fund," applies to a 
debt like this, which may run twenty years. 

Under the law as it stands, it is my opinion that a note 
issued to renews or refund a debt, which renewal is payable 
within the required period of twenty years, is a valid obligation. 



To the Board 
of Recistration 
in Pharmacy. 

I'JOG 
November 30. 



Violation of Pharmacy Law — Plea of Nolo Conten- 
dere — Conviction and Fine. 

A plea of nolo contendere, followed by a fine imposed by the court, is a conviction 
within the meaning of R. L., c. 76, § 17, providing that the Board of Regis- 
tration in Pharmacy may suspend the license of a registered pharmacist only 
"for a cause punishable by law," and "after' his conviction by a court of 
competent jurisdiction." 

You ask my opinion as to whether a plea of nolo contendere^ 
followed by a fine and payment thereof, constitutes a convic- 
tion that would justify the Board of Registration in Pharmacy, 
under section 17 of chapter 76 of the Revised Laws, in suspend- 
ing a certificate of registration of the party complained of. 

R. L., c. 76, § 17, reads as follows: — 

If the full board sitting at such hearing finds the person guilty, the 
board may suspend the effect of the certificate of his registration as a 
pharmacist for sucli term as the board fixes, but the license or certificate 
of registration of a registered pharmacist shall not be suspended for a 
cause punishable by law until after his conviction by a court of competent 
jurisdiction. 



DANA MALONE, ATTORNEY-GENERAL. 73 

A record showing a conviction on such a plea is not admis- 
sible in another proceeding to show that the defendant was 
guilty. It is the intention of the statute to give a pharmacist 
charged with a crime the right to a trial in a court having 
jurisdiction of his offense; but if his guilt be there established, 
so that the court may impose sentence according to its powers, 
then it is sufficiently established for the Board of Registration 
in Pharmacy to act upon their finding and to impose a penalty. 
Munkley v. Hoyt, 179 Mass. 108. In no way is the judgment 
of the Board upon the question of the guilt of the party to be 
affected by the proceedings in another court, as the purpose 
of the statute is to give the Board power to hold an independent 
hearing; but while the record is not admissible in another pro- 
ceeding, there is no doubt that a sentence imposed after a plea 
of nolo contendere amounts to a conviction in the case in which 
the plea is entered. White v. Creamer, 175 Mass. 567. That 
being so, it is my opinion, from the facts stated, that a convic- 
tion has been had by a court of competent jurisdiction. 



State Officers or Boards — "Day's Work" — Contract — 
Materials or Supplies. 

A State officer, board or commission must, under the provisions of St. 1906, c. 517, 
insert in every contract made by such officer, board or commission in behalf 
of the Commonwealth, excluding contracts for the purchase of materials or 
supplies, a clause requiring that no laborer, workman or mechanic employed 
under such contract shall be required to work more than eight hours in any 
one calendar day, whether or not such contract is to be executed within the 
Commonwealth. 

The words "materials or supplies" should be construed to include articles to be 
used in the creation of a mechanical structure, and upon which no work is to 
be performed under the contract. 

Replying to your letter of the 28th, in which the Charles To the charies 

n- -rt • /^' • • • 11 River Basin 

Liiver Basin Commission requests my opinion as to whether commission. 
:he commission " must put into every contract for supplies De cember 12. 
nade in Massachusetts, and even though of standard charac- 
:er, such as nails or iron pipe, the following provision: 'No 
aborer, workman or mechanic in the employ of the contractor, 
>ub-contractor or other person doing or contracting to do the 



OPINIONS OF THE ATTORNEY-GENERAL. 

whole or any part of the work contemplated by this contract, 
shall be required to work more than eight hours in any one 
calendar day;'" and second, as to "whether the provision above 
quoted must go into every contract for supplies, where the sup- 
plies are furnished by a manufacturer whose plant is located 
outside of the Commonwealth." Section 2 of chapter 517 of the 
Acts of 1906 provides as follows: — 

Every contract, excluding contracts for the purchase of material or 
supplies- to which the Commonwealth, or of any county therein, . . . 
is a party which may involve the employment of laborers, workmen or 
mechanics shall contain a stipulation that no laborer, workman or me- 
chanic in the employ of the contractor, sub-contractor or other person 
doing or contracting to do the whole or a part of the work contemplated 
by the contract shall be required to work more than eight hours in any 
one calendar day. 

Section 3 provides : — 

This act shall apply to all laborers, workmen or mechanics engaged 
upon any works which are or are intended to be the property of the 
Commonwealth. . . . 

Such provision should therefore be inserted in every contract 
except contracts for the purchase of materials and supplies, 
whether the plant of the manufacturer with whom such con- 
tract is made is located in the Comnionwealth or elsewhere. 
I think the Legislature intended the words "material or sup- 
plies" to include articles which are intended to be used in the 
creation of a mechanical structure and upon which no work is 
to be done under the contract. Nails and iron pipe would, in 
my opinion, be material or supplies within the meaning of the 
statute. 1 



DANA MALONE, ATTORNEY-GENERAL. 75 



Public or Private Schools — State Normal Schools — 
Pupils — Street or Elevated Railway Companies — 
Special Rates. 

'upils in State normal schools are not entitled to the benefits of R. L., c. 112, § 72, 
as amended by St. 1906, c. 479, providing that "the rates of fare charged by 
street or elevated railway companies for the transportation of pupils of the 
public or private schools . . . ■ shall not exceed one-half the regular fare 
■ charged by such street or elevated railway company for the transportation of 
other passengers." 

The State Board of Education ask my opinion upon the xo the state 
ollowing question: "Are the pupils in our State normal schools Education. 
ntitled to the benefits of chapter 479, Acts of 1906?" De cember i9. 

The statute above referred to was first enacted in Acts of 
900, chapter 197. This statute was embodied in R. L., c. 112, 
: 72, which is as follows : — 

The rates of fare charged by street or elevated railway companies for 
he transportation of pupils of the public schools between a given point, 
rem or to which it is necessary for them to ride in travelling to or from 
he school houses in which they attend school and their homes, whether 
uch school houses are located in the city or town in which the pupils 
aside or in another city or town, shall not exceed one-half the regular 
are charged by such street or elevated railway company for the trans- 
■ortation of other passengers between said points, and tickets for the 
ransportation of pupils as aforesaid, good during the days when said 
chools are in session, shall be sold by said companies in lots of ten each. 
L railway company which violates the provisions of this section shall 
Drfeit twenty-five dollars for each offence. 

By Acts of 1906, chapter 479, this latter provision was 
mended by the insertion of the words "or private" at the end 
f the second line, so that the provision of law was applicable to 
he "transportation of pupils of the public or private schools." 

The term "public schools" may be considered as synonymous 
nth. "common schools," and as so used its meaning is well set- 
led. So it has often been defined in connection with the Con- 
titution, Article of Amendment XVIII. : — 

All moneys raised by taxation in the towns and cities for the support 
f public schools, and all moneys which may be appropriated by the 



OPINIONS OF THE ATTORNEY-GENERAL. 

state for the support of common schools, shall be applied to, and expendec 
in, no other schools than those which are conducted according to law 
under the order and superintendence of the authorities of the town w 
city in which the money is to be expended; and such money shall nevei 
be appropriated to any rehgious sect for the maintenance, exclusively 
of its own school. 

In the case of Merrick v. Amherst, 12 Allen, 500, 508, it wa; 
said by Chief Justice Bigelow : — 

The phrases "public schools" and "common schools" have acquirec 
under ihe legislation and practice of this State a well-settled signification 
They are never applied to the higher seminaries of learning, such a; 
incorporated academies and colleges. These, in a certain broad anc 
comprehensive sense, are pubUc institutions, because they are controllec 
by corporations, and are usually open to all persons who are wilhng tc 
comply with the ter is of adnission and tuition. But the broad lin( 
of distinction between these and the "pubUc or common schools" is 
that the latter are supported by general taxation, that they are open tc 
all, free of expense, and that they are under the immediate control anc 
superintendence of agents appointed bj^ the voters of each town and city. 

And again, in Jenkins v. A'ndover, 103 Mass. 94, 99, the court 
in speaking of public and common schools, said: — 

These are the schools to which the eighteenth article applies, — schools 
which towns are required to maintain, or authorized to maintain, though 
not required to do so, as a part of our systeha of common education, and 
which are open and free to all the children and youth of the towns in 
which they are situated, who are of proper age or qualifications to attend 
them, or which adjoining towns may unite to support as a part of the 
same system. . . . This class of schools does not include private schools 
which are supported and managed by individuals; nor colleges or acade- 
mies organized and maintained under special charters for promoting the 
higher branches of learning, and not specially intended for, nor limited 
to, the inhabitants of a particular locahty. 

It appears, then, that the term "public schools" as used in 
the Constitution of the Commonwealth, and as used in subse- 
quent acts of the Legislature, refers and is limited to schools 
forming a part of the general system of education for the chil- 
dren and youth of the Commonwealth, such schools as, on the 



DANA MALONE, ATTORNEY-GENERAL. 77 

)ne hand, cities and towns are required to maintain for educa- 
:ional purposes, and, on the other hand, children are required 
,0 attend in order to obtain what is sometimes called "a com- 
non-school education." 

It is clear, therefore, that the term "public schools" is appli- 
•able to those schools established and maintained by the public, 
it which the attendance of pupils is required and is not appli- 
•able to colleges or academies organized and maintained for pro- 
noting the higher branches of learning, or to textile schools or 
)ther institutions established and maintained for the purpose of 
nstructing voluntary pupils in certain specific branches of edu- 
:ation, mechanical or industrial, which do not form a part of the 
;eneral system of education which the law requires to be main- 
ained by cities and towns. See Hanscom v. Loicell, 165 Mass. 
19. 

I am of opinion that so far as relates to the present question 
he interpretation of the statute is not affected by the addition 
tf the words "or private," contained in the amendatory act (St. 
906, c. 479), since it is obvious that it was the intention of the 
legislature to confer a benefit only upon such pupils of private 
chools as are in process of obtaining an education similar to 
ind in substitution for that which cities and towns must furnish 
n their common or public schools; and that it was not intended 
include institutions established for the purpose of instruction 
n the higher branches of learning, or in various mechanical or 
ndustrial branches either under the control of private individ- 
lals or of the Commonwealth. 

The status of students at a State normal school must, there- 
ore, in my opinion remain unaffected by the amendment of 
906, and if such students are entitled to benefit at all by the 
(revisions requiring street railways to carry pupils at half rates, 
t must be under the provision as contained in R. L., c. 112, 
■ 72. This is the more obvious because in no sense can a nor- 
aal school maintained by the Commonwealth for the benefit of 
ts citizens and at the public expense be considered a private 
chool. See Merrick v. Amherst, supra; Hanscom v. Loicell, 
upra. 



7S OPINIONS OF THE ATTORNEY-GENERAL. 

It remains, therefore, to consider whether or not a State nor- 
mal school is in any sense a public school within the meaning of 
that term as used in the Constitution and statutes of the Com- 
monwealth. It is true that the State Board of Education is 
vested with the general management of State normal schools, 
and may expend the money appropriated for their maintenance 
(see R. L., c. 39); and being so maintained, they are undoubt- 
edly public institutions. But the preparation of persons for the 
profession of instruction in common schools not being an essen- 
tial part of the common-school system which the municipalities 
or the Commonwealth are required to maintain, in my opinion 
they are not public schools within the meaning of the statute. 
I am therefore obliged to answer the question in the negative. 



Automobiles — Cities and Towns — Special Regulations 
— Posting — Sign Boards — Massachusetts Highway 
Commission. 

Under the provisions of St. 1903, c. 473, § 8, as amended by St. 1905, cc. 311 and 
366, and by St. 1906, c. 412, which enacted that local authorities "may make 
special regulations as to the speed of automobiles and motor cycles and asto 
the use of such vehicles on particular roads or ways, including their complete 
exclusion therefrom ..." a regulation adopted by the selectmen of a town 
restricting the speed of automobiles and motor cycles upon the streets of the 
thickly settled portion of such town to nine miles per hour is a special regula- 
tion; and, in the absence of protest as therein provided, it becomes the duty 
of the Massachusetts Highway Commission t6 post such regulation conspicu- 
ously on sign boards at such points as the commission may deem necessary. 

M^chusetts ^^ ^ communication dated October 25 you state that the 
comSon. selectmen of the town of Harwich have duly adopted and pub- 
December24. Hshcd, as required by law, the following speed regulation relat- 
ing to automobiles: — 

The selectmen of Harwich have restricted the speed of automobiles and 
motor cycles upon the streets in the thickly settled parts of said Harwich, 
to nine miles per hour. Said restriction is made under the Acts of 1903, 
chapter 473, as amended by chapters 311 and 366 of the Acts of the year 
1905, and chapter 412 of the Acts of the year 1906. 



You inquire whether in my opinion such regulation is 
special regulation within the meaning of the statute therein' 



nl 



DANA M ALONE, ATTORNEY-GENERAL. 79 

cited, and whether in the absence of protest the commission is 
required to erect speed signs' on all roads located within the 
thickly settled portion of the town of Harwich. 

St. 1903, c. 473, § 8, established a speed limit of fifteen miles " 
an hour outside the limits of a city or the thickly settled portion 
of a town or fire district, and of ten miles within a city or the 
thickly settled or business part of a town or fire district. This 
section was amended by St. 1906, c. 412, which repealed so 
much of the section as established a speed limit, by providing 
that: — 

Every person operating an automobile or motor cycle on any public 
or private way laid out under the authority of law shall run it at a rate 
of speed at no time greater than is reasonable and proper, having regard 
to traffic and the use of the waj^ and the safety of the public. 

The amendment then proceeds to establish rates of speed 
which shall be j)rima facie evidence that the operator is running 
his machine at a rate of speed greater than is reasonable and 
proper in the premises, such limits being twenty miles outside 
"the thickly settled or business part of a city or town" and 
twelve miles within such town. On curves and crossings, the 
speed which shall be prima facie unreasonable speed is eight 
miles. In section 2 the act construes the phrase "thickly set- 
tled or business part of a city or town," as follows: — 

The plirase "thickly settled or business part of a citj^ or town", in 
section one of this act shall be deemed to mean the territory of a city or 
town contiguous to any such way which is built up with structures devoted 
to business, or the territory of a city or town contiguous to any such way 
where the dwelling houses are situated at such distances as will average 
less than two hundred feet between such dwelling houses for a distance 
of a quarter of a mile or over. 

By St. 1905, c. 366, the city council of a city or the board of 
aldermen of a city having no common council, and the select- 
men of a town — 

may make special regulations as to the speed of automobiles and motor 
cycles and as to the use of such vehicles on particular roads or ways, 
including their complete exclusion therefrom. If they determine that 



so OPINIONS OF THE ATTORNEY-GENERAL. 

on any particular way a speed greater than the speeds specified in section 
eight of chapter four hundred and seventy-three of the acts of the year 
nineteen hundred and three may be permitted with safety, they may 
make such special regulations as may appear to them to be necessary: 
provided, however, that no such special regulation increasing or lessening 
the speed at which automobiles and motor cycles may be run on the 
])ublic highway's, or excluding them therefrom, shall be effective unless 
such regulation shall have been published in one or more newspapers, if 
there be any, published in such city or town, otherwise in one or more 
newspapers published in the county in which the city or town is situated. 

The act contains provisions for protest before the Massachu- 
setts Highway Commission, in which case such special regula- 
tion is not valid until approved by such Board, and then con- 
tinues: — 

Such special regulations shall be posted conspicuously by or under the 
direction of the Massachusetts highway commission on sign boards at 
such points as the board may deem necessary. The cost of such sign 
boards and the expenses in connection with their erection and maintenance 
shall be paid out of the appropriation for expenses in connection with the 
registration of automobiles and motor c,ycles and the licensing of operators 
thereof. 

This act was amended by St. 1906, c. 412, § 9, which changed 
the words "fifteen days," the period allowed after publication 
for protest, to "sixty days." 

Assuming that the regulation referred to by the Massachu- 
setts Highway Commission in their communication has been 
duly passed and published, as required by the statutes above 
quoted, I am of opinion that it is to be treated as a "special 
regulation as to the speed of automobiles and motor cycles," 
which it was within the power of the selectmen to pass, by au- 
thority and in accordance with the provisions of St. 1905, c. 366, 
and as such it becomes the duty of the commission to post such 
regulations conspicuously "on sign boards at such points as the 
board may deem necessary." 

It is to be observed that the selectmen of a town are author- 
ized by the statute to make special regulations of two distinct 
classes: first, as to the speed of automobiles and motor cycles; 



DANA MALONE, ATTORNEY-GENERAL. 81 

.nd, second, as to the use of such vehicles on particular roads or 
^^ays. From the language of the statute, it woilld seem that 
he regulations as to speed need not necessarily be limited to 
pecific roads or ways, but may be made generally applicable 
ither to the thickly settled or business portion of the town, or 
that part of the town without the thickly settled or business 
ortion. Moreover, the statute imposes no limitation as to the 
sgulation of speed, and it would seem that a regulation limit- 
ig the speed to nine miles an hour (only three miles less than 
he rate which the statute makes prima facie evidence of im- 
roper driving) would not be an unreasonable regulation. For 
lese reasons I conclude, as above stated, that the regulation is 
'ithin the terms of the statute. 



loNTAGious Diseases — State Board of Health — Co- 
ordinate Powers with Local Boards of Health — 
Cities and Towns. 

nder R. L., c. 75, § 8, providing in part that "if smallpox or any other contagious 
or infectious disease dangerous to the public health exists or is likely to exist 
in any place within the Commonwealth," the State Board of Health shall 
make an investigation thereof and "shall have co-ordinate powers as a board 
of health, in every city and town, with the board of health thereof ..." the 
exercise of such co-ordinate powers by the State Board of Health is confined 
to places throughout the Commonwealth where contagious diseases exist 
or seem likely to exist. 

Your Board asks my opinion upon the question whether or To the 

,VT>T i-rr e n ' • • T • ^ '"^tate Board 

ot by K. L., c. 75, § 8, it is given co-ordmate powers with of Health. 
>cal boards of health throughout the Commonwealth, or Ja nuary is. 
hether such powers are created only when contagious disease 
dsts or seems likely to exist in any given place, and are con- 
aed to such place and to the duration of the contingency above 
■ferred to. 
R. L., c. 75, § 8, is as follows: — 

If smallpox or any other contagious or infectious disease dangerous 
' the public health exists or is likely to exist in any place within the 
•mmonwealth, the state board shall make an investigation thereof and 

the means of preventing the spread of the disease, and shall consult 



82 



OPINIONS OF THE ATTORNEY-GENERAL. 



thereon with the local authorities. It shall have co-ordinate powers as 
a board of health, in every city and town, with the board of health thereof, 
or with the mayor and aldermen of a city or the selectmen of a town in 
which there is no such board. 

It appears from this section that the principal duty of the 
Board created by this section of the statute, with relation to 
matters of health, was the investigation of contagious or in- 
fectious diseases and the prevention of such diseases, and it is 
therefore provided that the Board shall consult with the local 
authorities thereon. Then follows the phrase under considera- 
tion, — "and shall have co-ordinate powers as a board of 
health, in every place, with the board of health," etc. 

The strong reason for assuming that the powers referred to 
are conferred only where contagious disease exists or is likely to 
exist is the fact that they are mentioned in a section which pur- 
ports to treat only of contagious or infectious diseases. Upon 
the whole, I am of opinion that the words as used in R. L., 
c. 75, § 8, are applicable only to places throughout the Common- 
wealth where contagious disease exists or seems likely to exist, 
and are confined to such place. 



To the 

Insurunce 

Commissioner 

1907 
February 13. 



Insurance — Assessment Insurance — Foreign Corpora- 
tion — Change from Assessment to Old Line Busi- 
ness — Valuation of Policies. 

A foreign insurance company admitted to this Commonwealth under the provisions 
of St. 1890, c. 421, an act relating to assessment insurance, which transacted 
business therein under the provisions of such statute until June 9, 1899, 
when it was authorized to transact the business of old line life insurance 
and since such date has transacted such business, is entitled to have its 
poUcies valued and to have a reserve maintained thereon on the basis of 
renewable term insurance, in accordance with R. L., c. 118, § 11, cl. 4, par. 2. 

You request my opinion as to whether the Security Mutual 
Life Insurance Company of New York, which was admitted to 
Massachusetts in 1893 under the provisions of chapter 421 of 
the Acts of 1890, and transacted business in this Common- 
wealth as an assessment life company until June 9, 1899, when 
it was authorized to transact business as an old line life com- 



DANA MALONE, ATTORNEY-GENERAL. 83 

pany, and which has continued to transact such business in that 
way since that date, is entitled to have its policies valued in 
accordance with the second paragraph of the fourth clause of 
section 11 of chapter 118 of the Revised Laws. This paragraph 
is as follows : — 

All policies or certificates of insurance issued before the first day of 
luly in the year eighteen hundred and ninety-nine by corporations which 
"ormerly transacted a life insurance business under the provisions of 
•hapter four hundred and twenty-one of the acts of the year eighteen 
lundred and ninety and acts in amendment thereof, and which now have 
luthority to do business in this commonwealth under the provisions of 
.his cliapter, which policies or certificates are in force on the thirty-fii-st 
lay of December of anj- year and which contain a provision for a payment 
)ther than the premium stipulated therein and under which the duration 
)f the premium payment is the same as the duration of the contract, 
'xcept in endowment certificates and endowment policies, shall be valued 
md shall have a reserve maintained thereon on the basis of renewable 
erm insurance as fixed bj^ attained age in accordance with the provisions 
)f this chapter. To the reserve liabilitj^ determined as above the insurance 
lommissioner shall add the determinate contract reserve under anj^ other 
)olicies or certificates issued bj^ said companies, before said first day of 
I'uly and remaining in force on the thirtj^-first day of December of any 
"•ear, and in the absence of such contract reserve shall value them as 
;ontracts providing similar benefits are to be valued under the provisions 
)f this chapter. But under no policy or certificate shall a greater aggre- 
gate reserve liability be charged than is otherwise required by this chapter. 
Ul policies of life insurance issued by any such corporation subsequent 
the first day of July in the year eighteen hundred and ninety-nine, 
ncluding those which contain a provision for a pa5auent other than the 
iremiums specified therein, shall be valued and a reserve maintained 
hereon according to the provisions of this chapter, but all such policies 
^sued by said former assessment corporations prior to the first daj' of 
anuary in the year nineteen hundred and three, shall be valued taking 
he first year as one-year-term insurance. 

Chapter 229 of the Acts of 1899 was passed April 1, 1899, 
'Ut by section S was to take effect July 1, 1899. This com- 
'any changed its business from an assessment to an old line 
Drm of business on June 9, 1899, as it was entitled to under the 
iw as it stood prior to the passage of chapter 229 of the Acts 
f 1899. 



S4 



OPINIONS OF THE ATTORNEY-GENERAL. 

I am of opinion that the Legislature did not intend to limit 
the benefits conferred by the portion of the section above 
quoted to those companies that changed from an assessment to 
an old line form of insurance upon or subsequent to July 1, 
1899. Consequently, R. L., c. 118, § 11. cl. -i, par. 2, does not 
exclude this company simply on the ground that on the first day 
of July, 1899, it was already engaged in transacting old line 
insurance. Therefore, the company is entitled to have its poli- 
cies valued in accordance with the provisions of the above 
quoted section. 



To the Super- 
intendent of 
State Adult 
Poor. 
1907 
March 5. 



Pauper — Derivative Settlement — Retroactive Statute. 

A pauper born in 1830 -who derived a settlement from his father in 1843, which 
became fixed when such pauper became of age, had acquired a settlement 
before the first day of May, 1860, and such settlement was therefore defeated 
and lost by the retroactive pro\-ision of R. L., c. 80, § 6, notwithstanding 
the fact that the settlement of the father came within the exception con- 
tained in such statute, and was not defeated thereby. 

You request my opinion upon the following statement of 
facts: — 

The pauper was born in Wareham, Mass., 1830; removed to Fairhaven, 
Mass., in 1833, where he derived a settlement from his fa.her, who acquired 
a settlement in same place in 1843. The pauper since his majority has 
performed none of the acts necessary to acquire a settlement. His father 
continued to reside in Fairhaven until bis death, July 6, 1874, owning and 
occupying a freehold estate each j'ear since 1843. Under the provisions 
of R. L., c. 80, § 6, "Any settlement which was not fully acquired sub- 
sequent to the first day of ^Nlay, in the year eighteen hundred and sixty, 
is hereby defeated and lost, unless such settlement prevented a subsequent 
acquisition of settlement in the s^me place; ..." As the father's 
settlement was saved under the exception, and that settlement acquired 
when the son was a minor, does it follow that the settlement of the son, 
the pauper, is not lost? 



The settlement of the pauper in question, derived from his 
father in 1843, became fixed when the pauper became of age 
in 1851, and thereafter was unaffected by any subsequent loss 
or acquisition of settlement by his father. He had, therefore, a 
settlement in the town of Fairhaven, acquired before the first 



I DANA MALONE, ATTORNEY-GENERAL. 85 

day of May, 1860, and such settlement was clearly defeated 
and lost by the retroactive provision of R. L., c. 80, § 6, — "Any 
settlement which was not fully acquired subsequent to the first 
day of May in the year eighteen hundred and sixty is hereby 
defeated and lost, unless such settlement prevented a subse- 
quent acquisition of settlement in the same place," — since 
after 1851 he did nothing which would entitle him to a settle- 
ment either in Fairhaven or elsewhere, and does not come, 
therefore, within the exception in the above-entitled section. 
The fact that the father's settlement did come within the excep- 
tion and was not lost seems to me to be immaterial in respect 
to the settlement of the son. 



5tate Board of Health — Nuisance — Jurisdiction — 
Abatement of Nuisance — Pending Complaint to 
Local Board of Health and Bill of Complaint in 
Superior Court. 

The State Board of Health may, under the pro\-isions of R. L., c. 75, § 109, enter- 
tain an application or complaint alleging that a corporation engaged in the 
manufacture of cement is maintaining a nuisance upon its premises, and 
may investigate the conditions attending such manufacture upon such prem- 
I ises, notwithstanding that such corporation was authorized bj- the local 

I authorities to engage in and carrj- on the business of manufacturing cement 

at such place, and notwithstanding that a bill of complaint of the same 
tenor was filed by the petitioner and is now pending before the Superior 
Court, and that a like complaint has been presented to the local board of 
health, upon which such board has not yet acted. 

The State Board of Health requests my opinion as to its To the 

• <i. . . , , , State Board 

unsdiction in the matter of a complaint directed against the of Health. 
Russia Cement Company of Gloucester, and a petition for the - March le. 
ibatement of a nuisance alleged to exist on the premises of said 
?ompany. The Russia Cement Company moved to dismiss the 
:omplaint for the reason that the State Board of Health lacked 
urisdiction. 

It appears that the business of the Russia Cement Company 
vas being conducted upon the same premises to which the cor- 
Doration had been assigned by the local board of health in 1881, 
ind in buildings occupied and used by the written permission of 



8(i OPINIONS OF THE ATTORNEY-GENERAL. 

the mayor and board of aldermen; that at the time of filing the 
petition the said business was being conducted on said premises 
under the regulations of and in the mode prescribed by the 
local board of health, and with its approval; that on July 16, 
1906, the same petitioner made a like complaint to the local 
board, which complaint is now held under advisement by that 
board; and that on Oct. 11, 1906, the same petitioner filed a bill 
of complaint of the same tenor and effect in the Essex Superior 
Court, praying for an injunction and the prohibition of said 
business, and the same is now pending in said court. 

The cement company objects to the jurisdiction of the State 
Board of Health: — 

(1) Because of the proceeding in and before the local board 
of health. 

(2) By reason of the proceedings in and before the Superior 
Court. 

The jurisdiction of the State Board of Health is under R. L., 
c. 75, § 109, which reads as follows: — 

If any buildings or premises are so occupied or used, the state board 
of health shall, upon application, appoint a time and place for hearing 
the parties and, after due notice therefor to the party against whom the 
application is made and a hearing, may, if in its judgment the public 
health, comfort or convenience so require, order any person to desist 
from further carrying on said trades or occupations in such building or 
premises; and whoever thereinafter continues so to occupy or use such 
buildings or premises shall forfeit not more than two hundred dollars for 
every month of such occupancy and use, and in like proportion for a 
shorter time. 

The question is, therefore, whether the fact that a license has 
been issued to the Russia Cement Company by the local au- 
thorities, and the business of said company is conducted with 
the approval and subject to the regulation of the local board of 
health, and that a petition has been filed in the Superior Court 
to enjoin such company from maintaining a nuisance, limits the 
jurisdiction of the State Board of Health in the premises. 

The power of the State Board of Health under R. L., c. 75, 
§ 109, was first established in St. 1871, c. 167, which authorized 



DANA MALONE, ATTORNEY-GENERAL. 87 

such Board to forbid the exercise of an offensive trade in any 
municipaUty of more than 4,000 inhabitants. See Sawyer v. 
State Board of Health, 125 Mass. 182, 192, where the court say: — 

It simply gives to the State Board of Health jurisdiction, whether 
concurrent with the town boards or exclusive it is not material to this 
case to inquire, in cities and large towns, to do what may be done in 
every town of the Commonwealth by the local board of health. 

In Cambridge v. Trelegan, 181 Mass. 565, the court state, in 
speaking of the authority of the local board to forbid the carry- 
ing on of a slaughter house as dangerous to the public health 
after license by the proper authority : — 

From its origin the policy of requiring the license mentioned has been 
shown not to be exclusive of the exercise of their usual powers by boards 
of health by the express grant of power to the State Board of Health to 
prohibit carrying on the business of slaughtering in a building or premises 
occupied for that purpose. St. 1871, c. 167, § 2; St. 1874, c. 308; Pub. 
Sts., c. 80, § 93; R. L., c. 75, § 109. The court is of opinion that this 
grant of power is not exclusive, and that it would be unwarranted and 
anomalous to hold the license good against the local board acting under 
Pub. Sts., c. 80, § 84, R. L., c. 75, § 91, when it would be no answer to 
the State Board acting under what is now another section of the same 
chapter of the Revised Laws. See Saunjer v. State Board of Health, 125 
Mass. 182, 191, 192; Stone v. Heath, 179 Mass. 385. 

In these cases it appears clear that the jurisdiction of the 
State Board of Health is at least concurrent with that of local 
boards of health in cities and towns of more than 5,000 in- 
habitants; and the fact that the local board of health refuses 
to act in the premises does not in any way affect the right of 
the State Board of Health to proceed. Indeed, it may well 
have been that the Legislature intended that the State Board 
under just such circumstances should have the power to inter- 
vene, and prohibit the carrying on of business injurious to the 
public health. 

I am therefore of opinion that the fact that the question con- 
cerning the Russia Cement Company had been raised before the 
local board of health, and that the method of business of such 



OPINIONS OF THE ATTORNEY-GENERAL. 

company had been approved by such board, does not affect the 
present proceedings brought before the State Board of Health. 
In respect to the proceedings pending before the Superior 
Court, the case of Stone v. Heath, 179 Mass. 385, seems to be 
conclusive. In that case the court say, in discussing action by 
a local board of health (p. 389) : — 

And if it be true, as alleged, that action was taken with a view to 
affect proceedings in the suit pending in the Superior Court between the 
plaintiffs and the water company, that also furnishes no ground for 
interference with the board of health. It often happens chat the pro- 
ceedings in one tribunal are affected or may be affected by action taken 
by another tribunal. Such action may even be taken with that purpose 
in view, so long as it is within the jurisdiction of the tribunal that acts, 
and may also be at the instance of one of the parties to the proceedings 
in the other tribunal. 

I am of opinion, therefore, that the State Board of Health 
may proceed with the investigation of the question raised by the 
petition in this case, if it deems it proper to do so. 



Constitutional Law — Acceptance of Statute — Approval 
BY Majority of Qualified Voters of Commonwealth. 

So much of Senate Bill No. 9, entitled "An Act to fix the punishment for the crime 
of murder," as purports to provide that such act shall take effect when ap- 
proved by a majority of the voters of the Commonwealth, is unconstitutional. 

mttt^S'the ^ hsi\e your letter in which you say that the joint judiciary 
"^"igo?^"^^' committee ask my opinion as to the constitutionality of section 
^IHII- 5 of Senate Bill No. 9. The title of that bill is, "An Act to fix 

the punishment for the crime of murder." Said section 5 reads 

as follows : — 

This act shall take effect when approved by a majority of the qualified 
voters of the Commonwealth at the next annual state election. 

In the Opinion of the Justices, 160 Mass. 586, our Supreme 
Judicial Court has said that there is nothing in our Constitution 
which would lead one to think that the people desired that any 



DANA MALONE, ATTORNEY-GENERAL. 89 

law should ever be submitted to them for approval or rejection; 
that by the Constitution the Senate and the House of Repre- 
sentatives have been made the legislative department of the 
government. 

Apparently it was thought that the persons selected for the executive, 
egislaUve and judicial offices in the manner prescribed in the Constitution 
vould be men of good character and intelhgence, of some experience in 
iffairs and of some independence of judgment, and would have a better 
)pportunity of obtaining information, taking part in discussion and care- 
ully considering conflicting opinions, than ^he people themselves; and 
he people therefore put the responsibility of carrying on the government 
ipon their representatives. 

The question under consideration was an act granting to 
vomen the right to vote in town and city elections. The act 
)rovided that it should take effect throughout the Common- 
vealth on its acceptance by a majority vote of the voters of the 
vhole Commonwealth. 

The question was further considered in the case of Brodbine 
7. Revere, 182 Mass. 600; and the court, speaking by Chief 
lustice Knowlton, said: — 

It is well established in this Commonwealth and elsewhere that the 
LiBgislature cannot delegate the general power to make laws, conferred 
ipon it by a Constitution hke that of Massachusetts. This doctrine is 
leld by the courts almost universally. 

These decisions seem conclusive, and I am therefore of 
)pinion that it would be unconstitutional to provide that said 
ict shall take effect when approved by a majority of the voters 
)f the Commonw^ealth. 



90 OPINIONS OF THE ATTORNEY-GENERAL. 



Massachusetts State Sanatorium — Application — Pref- 
erence OF Citizens. 

Under the provision of St. 1907, c. 222, § 1, that "preference shall be given to 
those applicants who are citizens of the Commonwealth," the trustees of 
the Massachusetts State Sanatorium are authorized to give precedence in 
cases of tuberculosis: first, to incipient cases of citizens; second, to ad- 
vanced cases of citizens; third, to incipient cases where the applicants are 
not citizens; and fourth, to advanced cases where the applicants are not 
citizens. 



TotheTrus- J h&ve vour letter of the 4th, in which you say that the 

tees of Massa- -^ 

sanftorlu^nf'' trustces of the Massachusetts State Sanatorium desire to ask 
AprTii. my opinion on the effect of chapter 222 of the Statutes of 1907, 

section 1 of which is as follows: — 

In the admission of persons to the Massachusetts state sanatorium 
preference shall be given to those apphcants who are citizens of the 
Commonwealth. 

You say that the State Sanatorium was established by St. 
1895, c. 503, under the name of Massachusetts Hospital for 
Consumptives and Tubercular Patients; that the name was 
changed to Massachusetts State Sanatorium by St. 1900, c. 192; 
that there is no provision of law which defines the objects of 
the institution or the admission of patients; that cases of tuber- 
culosis are divided by the medical profession into three classes, 
according to the progress the disease has made, — (1) incipient, 
(2) advanced and (3) far advanced; and that the trustees have 
for the past ten years admitted only persons who after medical 
examination were pronounced to be in the incipient stages of 
tuberculosis, believing that in so doing they were best carrying 
out the object of the institution, but that whenever there were 
not sufficient incipient cases to fill the institution, moderately 
advanced cases were accepted, and that incurable cases are not 
accepted. You say there are not sufficient applications from 
incipient cases to fill the sanatorium, and moderately advanced 
cases are frequently admitted, but only when their admission 
does not result in preventing the admission of incipient cases. 

You ask whether chapter 222 of the Acts of 1907 compels 



DANA MALONE, ATTORNEY-GENERAL. 91 

rou to admit persons in the moderately advanced or incurable 
tages of tuberculosis who are citizens of Massachusetts, in pref- 
■rence to applicants in the incipient stages of tuberculosis who 
ire residents but not citizens. 
I think the law as it stands to-day authorizes you to admit 

1) incipient cases where the persons are citizens, (2) advanced 
ases where the persons are citizens, and preference must be 
;iven to these two. I see no objection to your making a rule 
hat you will not admit far advanced cases. If you should do 
hat, you can then, after having provided for the incipient and 
dvanced cases where the applicants are citizens, admit, first, 
neipient cases where the applicants are not citizens, and then 
.dvanced cases where the applicants are not citizens. 

In other words, my conclusion is that you would be war- 
anted in giving preference (1) to incipient cases of citizens, 

2) to advanced cases of citizens, (3) incipient cases where the 
,pplicants are not citizens, and (4) advanced cases where the 
-pplicants are not citizens. 



Bounty Commissioners of Bristol County — Compensation 
FOR Services as Members of Joint Board. 

'he Governor and Council may not provide compensation for the county commis- 
sioners of the county of Bristol for services as members of the joint board 
created by St. 1903, c. 462, to locate and construct a new drawbridge over 
Great Taunton River, and consisting of the Board of Railroad Commis- 
sioners, the Board of Harbor and Land Commissioners, and the county commis- 
sioners of the county of Bristol. 

My opinion is asked orally by Your Excellency as to whether To the 

* "^ " . Governor. 

r not the Governor and Council may provide compensation i907 
or the county commissioners of the county of Bristol for their 
ervices as members of the joint board created by chapter 462 
f the Acts of 1903, to locate and construct a new drawbridge 
ver Great Taunton River, between the city of Fall River and 
he town of Somerset. 
Section 1 of this chapter provides that: — 

The board of raih-oad commissioners, the board of harbor and land 
omniissioners and the county commissioners of the county of Bristol, 



92 OPINIONS OF THE ATTORNEY-GENERAL. 

who are constituted a joint board to act by a majority vote of all the 
members, are hereby authorized and directed to locate and construct 
a new drawbridge between the city of Fall River and the town of Somer- 
set, over Taunton Great river . . . 

Section 5 provides for the appointment of a special com- 
mission to estimate and determine the towns, cities and corpo- 
rations to be assessed for the cost of constructing and maintain- 
ing the bridge. 

Section 6 provides that : — 

. The members of the boai'd of railroad commissioners, the board 
of harbor and land commissioners and the special commission appointed 
under this act shall receive such compensation as the governor and council 
shall approve, the same to be paid by the county of Bristol. . . . 

I am of opinion that the Governor and Council have no 
authority under the act in question to approve or vote any 
compensation to the county commissioners of Bristol County. 
The words "special commission" do not in my opinion indi- 
cate the whole of the joint commission, but refer to the special 
commissioners to be appointed under section 5. 



Registered Pharmacist — Conduct of Business — Attend- 
ance OF Registered Pharmacist. 

R. L., c. 76, § 23, requires that an unregistered member of a copartnership engaged 
in the business of pharmacy, who compounds for sale or dispenses for medi- 
cinal purposes drugs, medicines, chemicals or poisons, shall do so only under 
the personal supervision of a registered pharmacist. 

Jf^Regis^ratYon ^J' ^'^^^^ commuuication of March 28 you seek my opinion 
in Pharmacy, ^p^^^ ^^xe qucstiou whcthcr, under R. L., c. 76, § 23, it is neces- 
■^^' sary "for a registered pharmacist to be in attendance at all 

times in a drug store while conducting the business of a phar- 
macist." The section referred to is as follows: — 

The provisions of sections twenty-one to twenty-nine, inclusive, of 
chapter one hundred, section twenty-six of chapter seventy-five and 
section two of chapter two hundred and thirteen shall not apply to physi- 
cians who put up their own prescriptions or dispense medicines to their 



DANA MALONE, ATTORNEY-GENERAL. 93 

■atients; nor to the sale of di'ugs, medicines, chemicals or poisons at 
wholesale only; nor to the manufacture or sale of patent and proprietary 
ledicines; nor to the sale of non-poisonous domestic remedies usually 
old by grocers and others; nor shall any unregistered member of a 
opartnership be hable to the penalties hereof if he retails, compounds for 
lie or dispenses for medicinal purposes drugs, medicines, chemicals or 
oisons only under the personal supervision of a registered pharmacist, 
'he widow, executor or administrator of a registered pharmacist who has 
ied or the wife of one who has become incapacitated may continue his 
usiness under a registered pharmacist. 

In reply I beg to advise you that the statute clearly requires 
bat an unregistered member of a copartnership who compounds 
)r sale or dispenses for medicinal purposes drugs, medicines, 
hemicals or poisons shall do so only under the personal super- 
ision of a registered pharmacist, and such supervision can exist 
nly when a registered pharmacist is present. 



,ABOR — Eight-hour Law — Domestic Servants — Holidays. 

nder St. 1907, c. 269, amending St. 1906, c. 517, and providing that no laborer, 
workman or mechanic emploj^ed by or on behalf of the Commonwealth or 
of any county therein or in any city or town which has accepted the pro- 
visions of R. L., c. 106, § 20, "shall be requested or required to work more 
than eight hours in any one calendar day or more than forty-eight hours 
in any one week, except in cases of extraordinary emergency," cooks, maids, 
I or other domestic servants may not be requested or required to work more 

than eight hours in any one calendar day or more than forty-eight hours in 
any one week, except in cases of extraordinary emergency. 

lO workman, laborer or mechanic so employed may be requested to work more 
than eight hours in any one calendar day, except in cases where a Saturday 
half-holiday is given, in which case the hours of labor on other working days 
may be increased to make a total of forty-eight hours for the week's work. 

mployees may arrange between themselves to substitute for each other in pro- 
viding for vacation periods; but they may not be requested or required so 
to do by their employers if it results that such arrangement involves more 
than eight hours' work by any of the parties in any one day. 

''^here an employee at a State insane hospital, as a precautionary measure, is 
required to remain and to sleep in a room adjoining the room of a patient 
or a dormitory, the time of sleep is not to be considered as time on duty. 

I have your letter of the 25th, in which you ask my opinion To the super- 
intendent of 

pon certain questions relative to the so-called eight-hour law, ^^^^^^^^f ^^i 
eing chapter 269 of the Acts of 1907, section 1 of \vhich reads j^^^^'^^e. 
s follows: — 



94 OPINIONS OF THE ATTORNEY-GENERAL. 

Section one of chapter five hundred and seventeen of the acts of the 
year nineteen hundred and six is hereby amended by inserting after the 
word "laws," in the sixth hne, the following: — No laborer, workman or 
mechanic so employed shall he requested or required to work more than 
eight hours in any one calendar day or more than forty-eight hours in any 
one week except in cases of extraordinary emergency. Only a case of 
danger to property, to life, to pubMc safety, or to public health shall be 
considered a case of extraordinary emergency within the meaning of this 
section. Engineers shall be considered mechanics within the meaning 
of this act, — and by adding at the end of the section the following: — 
Threat of loss of employment or threat to obstruct or prevent the obtain- 
ing of employment, or threat to refrain from employing in the future shall 
be considered requiring within the meaning of this section, — so that the 
section as amended will read as f ollovrs : — ■ Section 1 . Eight hours shall 
constitute a day's work for all laborers, workmen and mechanics now or 
hereafter employed by or on behalf of the Commonwealth, or of any 
county therein, or of any city or town which has accepted the provisions 
of section twenty of chapter one hundred and six of the Revised Laws. 
No laborer, workman or mechanic so employed shall be requested or 
required to work more than eight hours in any one calendar day or more 
than forty-eight hours in any one week except in cases of extraordinary 
emergency. Only danger to property, to life, to public safetj' or to public 
health shall be considered cases of extraordinary emergency within the 
meaning of this section. Engineers shall be considered mechanics witliin 
the meaning of this act. But in cases where a Saturday half -holiday is 
given the hours of labor upon the other working days of the week may be 
increased sufficiently to make a total of forty-eight hours for the week's 
work. Threat of loss of employment or threat to obstruct or prevent the 
obtaining of employment, or threat to refrain from employing in the 
future shall be considered requiring within the meaning of this section. 

You ask: "Is it permissible to employ domestics on the 
hourly basis?" 

By domestics I assume that you mean house servants, both 
men and women; and I am of opinion that neither men nor 
women can be requested or required to work more than eight 
hours in any one calendar day, nor more than forty-eight 
hours in any one week, except in cases of extraordinary emer- 
gency. 

2. "i\Iay employees work overtime on other days, to make 
up for a holiday on any other day than Saturday?" 



DANA MALONE, ATTORNEY-GENERAL. 95 

They cannot be requested or required to work more than 
'ight hours in any one calendar day except in cases where a 
Saturday half-holiday is given, in which case the hours of labor 
ipon the other working days of the week may be increased 
ufficiently to make a total of forty-eight hours for the week's 
vork. 

3. "Are cooks, maids and other domestics included under the 
ight-hour law?" 

I am of opinion that they are so included. R. L., c. 8, § 4, 
1. 4, provides: "Words importing the masculine gender may be 
pplied to females." The Supreme Court of the United States, 
n the case of Silver v. Ladd, 7 Wall. 219, held that the words 
single man" and "married man," in construing a benevolent 
tatute of the government made for the benefit of its own citi- 
ens, must be taken in the generic sense; and that an act of 
Congress, granting by way of donation land in Oregon Territory 
every white settler or occupant, embraced within the term 
'single man" an unmarried woman. I have no reason to think 
he Legislature intended to discriminate between men and wo- 
nen doing the same work, by providing that a man should not 
)e required to work more than eight hours, while a woman 
night be required to work much longer. 

4. "May employees arrange between themselves to substitute 
or each other, thus exchanging time off duty, — as, for in- 
tance, in arranging for a vacation of two weeks?" 

There is no reason why they may not do so by mutual agree- 
Qent; but they should not be requested or required to work 
fiore than eight hours in any one day by their employer. 

5. "If an employee, as a precaution in case of fire or other 
mergency, is required to remain in a room adjoining a patient's 
oom or dormitory, this employee being allowed and expected 
go to bed and go to sleep, is this time of sleep to be con- 
idered as time on duty?" 

No. It is no more a requirement than if you requested your 
mployees to sleep in any particular building upon the premises 
f the hospital. 



OC) 



OPINIONS OF THE ATTOKNEY-GENERAL. 



To the 
Board of 
Metropolitan 
Park Com- 
missioners. 

1907 
May 10. 



Board of Metropolitan Park Commissioners — Rules and 
Regulations — Roadways — Violation of Rules and 
Regulations — Arrest — Warrant. 

The authority of the Metropolitan Park Commission, under St. 1893, c. 407, § 4, 
and St. 1894, c. 288, § 3, to make rules and reg\ilations for the government 
and use of open spaces, lands, rights and easements or interests in land, is 
the same whether such lands or rights, easements or interetts in land to 
which such rules are applicable were acquired and are controlled by such 
commission under St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2. 

The term "roadways," as used in St. 1894, c. 288, § 3, includes roadways under 
the care of the Metropolitan Park Commission, constructed upon lands ac- 
quired under St. 1893, c. 407, §§ 4 and 6. 

A police officer appointed by the Metropolitan Park Commission may arrest with- 
out warrant any person who violates in his presence any rule or regulation 
duly made by such commission by authority of St. 1894, c. 288; and may 
arrest without warrant any person who violates in his presence any rule or 
regulation duly made by such commission by authority of St. 1903, c. 407, 
whenever such violation involves acts which are in fact breaches of the pub- 
lic peace. 

By a communication dated April 10, 1907, your Board 
inquires: — 

1 . Whether or not the commission has authority to make rules 
and regulations for the government and use of open spaces, lands, 
rights, easements or interests in lands transferred to its care and 
control under either St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2. 

2. Whether or not the term "roadways," referred to in St. 
1894, c. 288, § 3, includes roadways under the care of the com- 
mission, constructed upon lands acquired under St. 1893, c. 407, 
§§ 4 and 6. 

3. Whether or not a police officer appointed by the commis- 
sion may arrest without warrant a person committing in his 
presence a violation of a rule enacted under either St. 1893, 
c. 407, § 4, or St. 1894, c. 288, § 3. 

The open spaces, lands, rights, easements or interests in lands 
referred to in the first inquiry are those transferred to the care 
and control of the Metropolitan Park Commission under the 
following statutes : — 

St. 1893, c. 407, § 6:— I 

Any city or town within said district, or any local board of such city 
or town, with the latter's consent, is hereby authorized and empowered 



DANA MALONE, ATTORNEY-GENERAL. 97 

> transfer the care and control of any open space owned or controlled 
r it to the metropoUtan park commission, upon such terms and for such 
iriod as may be mutually agreed upon; or to enter into an agreement 
th said commission for the joint care and preservation of open spaces 
thin or adjacent to such city or town; and the metropolitan park 
mmission may in like manner transfer the care and control of any open 
ace controlled by it to any local board of a city or town within the said 
strict, with the consent of such city or town and upon such terms and 
• such period as may be mutually agreed upon. 

St. 1896, c. 465, § 2: — 

Said commission is hereby authorized and empowered to transfer for 
re and control, including police protection, any lands or rights or ease- 
snts or interest in land, although the same be a roadway or boulevard 
ned or controlled by it, to any citj^ town or county, or local board of a 
7 or town within the metropohtan parks district, with the consent of 
•h city, town, county or board, and upon such terms and for such period 
may be mutually agreed upon, and to enter into an agreement with 
y such city, town or county or board for the joint care and control or 
lice protection of said land or boulevard, and also for laying out, con- 
i acting and maintaining streets or ways into or across any such land 

< boulevard; and any city, town or county, or any local board within 
metropoUtan parks district, is hereby authorized and empowered to 

• .nsfer for care and control, including pohce protection, any land, rights, 

< lements or interest in land in its control, although the same be already 
i )art of a public street owned or controlled by it, to the metropoUtan 
1 "k commission for such period and upon such terms as may be mutually 
i eed upon, and to enter into an agreement with said commission for the 
X it care and control, including poUce protection, of said land or street. 

The powers of the commission in the premises were first de- 
f ed in St. 1893, c. 407, § 4, which provided that: — 

5aid board shaU have power to acquire, maintain and make available 
tthe inhabitants of said district open spaces for exercise and recreation; 
a I to this end, acting so far as may be in consultation with the proper 
1' al boards, shall be authorized to take, in fee or otherwise, in the name 
al for the benefit of the Commonwealth, by purchase, gift, devise or 
e inent domain, lands and rights in land for public open spaces within 
s: I district, or to take bonds for the conveyance thereof; . . . 

n furtherance of the powers herein granted, said board may employ 
Suitable police force, make rules and regulations for the government 
a I use of the public reservations under their care, and for breaches 



98 OPINIONS OF THE ATTORNEY-GENERAL. 

thereof affix penalties not exceeding twenty dollars for one offence, to be 
imposed by any court of competent jurisdiction; and in general may do 
all acts needful for the proper execution of the powers and duties granted 
to and imposed upon said board by the terms of this act. . . . 

St. 1894, c. 288, the so-called "boulevard act," provided in 
section 1 that the Board of Metropolitan Park Commissioners 
might connect any road, park, way or other public open space 
with any part of the cities or towns of the metropolitan parks 
district under its jurisdiction, by a suitable roadway or boule- 
vard; and such commission was given for this purpose authority 
to exercise any of the rights and powers granted to it by the 
earlier act, in the manner therein prescribed, as well as the 
power to take or acquire, in fee or otherwise, by purchase, gift, 
devise or eminent domain, lands or rights or easements or in- 
terest in land within the metropolitan parks district, although 
the land so taken or any part of it w^as already a street or way. 
Section 3 is in part as follows: — 

In furtherance of the powers herein granted said board may appoint 
clerks, police and such other emploj'^ees as it may from time to time find 
necessary for the purposes of this act, remove the same at pleasure, and 
make rules and regulations for the government and use of the roadways 
or boulevards under its care, breaches whereof shall be breaches of the 
peace, punishable as such in any court, having jurisdiction of the same; 
and in addition said board shall have the same rights and powers overi 
and in regard to the roadways or boulevards taken and constructed 
hereunder as are or may be vested in them in regard to other open spaces 
by said chapter four hundred and seven and acts in amendment thereof 
and in addition thereto, and shall also have such rights and powers in 
regard to the same as, in general, counties, cities and towns have ovei 
public ways under their control. 

In an opinion by Attorney-General Parker, dated Aug. 21,^ 
1903 (2 Op. Atty.-Gen. 454), relating to the police jurisdictioi 
of the Metropolitan Park Commission, it is said : — 

It follows, therefore, that the authority of the Metropolitan Park Com- 
mission with regard to police regulation of pubhc open spaces does nol 
<liffer from that which they have over parkways and boulevards as defined 
in the opinion of last year already referred to. (See 2 Op. Atty.-Gen. 363.] 



DANA MALONE, ATTORNEY-GENERAL. 99 

St. 1894, c. 288, did not contain any provision by which a 
city or town Avithin the district was empowered to transfer to 
the Metropolitan Park Commission open spaces within the con- 
trol or ownership of such city or town, or to enter into joint 
agreements for the care or preservation of open spaces, or by 
which the commission might transfer the care and control of 
open spaces to any local board of a city or town, as appears in 
St. 1893, c. 407, § 6, above quoted. This omission was sup- 
plied in St. 1896, c. 465, entitled "An Act to better define 
the authority of the Metropolitan Park Commission." This 
statute, in section 1, deals exclusively with roadways or boule- 
v^ards (see 1 Op. Atty.-Gen. 588, 593); and in my opinion is 
to be construed to be supplementary to St. 1894, c. 288. Sec- 
tion 2 of chapter 465 of the Acts of 1896 is hereinbefore quoted. 

I am of opinion that, so far as the power and authority of the 
Metropolitan Park Commission to make rules and regulations 
:'or the government of public open spaces, roadways or boule- 
vards is involved, it is the same whether the lands or rights, 
casements or interest in land, to which such rules are appli- 
mble, were acquired by the Board and are controlled by it 
inder St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2; and that 
5uch authority is defined in St. 1893, c. 407, § 4, and St. 1894, 
:. 288, § 3. (See 2 Op. Atty.-Gen. 454.) 

The second inquiry deals with the term "roadways," as used 
n St. 1894, c. 288, § 3; and the substance of the inquiry is 
;vhether or not roadways constructed by the Metropolitan Park 
Commission upon lands acquired and held as open spaces, under 
:he provisions of St. 1893, c. 407, are to be considered as park- 
vays, roadways or boulevards constructed under the provisions 
)f St. 1894, c. 288. 

I am of opinion that they are to be so considered. It has 
ilready been decided that the commission may expend the 
noney appropriated under the "boulevard act," so called (St. 
1894, c. 288), in constructing a roadway over land already ac- 
luired by such board under St. 1893, c. 407, if the purpose of 
iuch connection is to connect a road, park, way or other public 
)pen space within any part of the cities or towns of the metro- 



100 OPINIONS OF THE ATTORNEY-GENERAL. 

politan parks district under the jurisdiction of the commission 
(2 Op. Atty-Gen. 567); and a consideration of the provisions 
of St. 1894, c. 288, appears to warrant a conclusion that it was 
contemplated by the Legislature that the commission should 
under such statute be authorized to construct parkways or 
boulevards across existing parks or open spaces under its control. 
This is forcibly shown by striking out of section 1 of such act 
such words and phrases as do not directly bear upon the present 
question, so that it reads as follows : — 

The board of metropolitan park commissioners, constituted under the 
authority of chapter four hunched and seven of the acts of the year eighteen 
hundred and ninety-three is hereby authorized to take . . . any lands 
. . . although the lands so taken ... be already a street or way, and 
to construct and maintain . . . over the same or any other land acquired 
bj' said board bj'' said act a suitable roadway or boulevard. 

The word "same" in the above extract obviously refers to 
lands taken under the provisions of St. 1894, c. 288; while the 
words "or any other land acquired by said board by said act" 
as obviously refer to lands taken or acquired by the commission 
under the provisions of St. 1893, c. 407. (See words "said 
act," in eighth line of St. 1894, c. 288, § 1.) 

It follows, therefore, in my opinion, that the Board is ex- 
pressly authorized to construct, under the provisions of St. 1894, 
c. 288, roadways across public reservations or open spaces taken 
or acquired by it under the provisions of St. 1893, c. 407, and 
may make rules and regulations for the government and control 
of such roadways, under the provisions of the former statute, 
the so-called "boulevard act;" or, in other words, that St. 1894, 
c. 288, § 3, providing that the commission may " make rules and 
regulations for the government and use of a roadway or boule- 
vard under its care, breaches whereof shall be breaches of the 
peace," is applicable as well to such roadways as to parkways or 
boulevards which connect with but do not cross the open spaces 
or reservations established under the "park act," so called. 

The remaining question is, whether or not a police officer ap- 
pointed by the commission may arrest without warrant any per- 



DANA MALONE, ATTORNEY-GENERAL. 101 

son who violates in his presence a rule or regulation duly made 
by the commission under either the "park act" or the "boule- 
vard act." 

The powers and duties of the metropolitan park police are 
defined in St. 1897, c. 121, § 3, as follows: — 

The police appointed or employed by said commission, in accordance 
with the provisions of chapter fom- hundred and seven of the acts of the 
year eighteen hundred and ninety-three and chapter two hundred and 
eighty-eight of the acts of the year eighteen hundred and ninety-four and 
all acts in amendment thereof and in addition thereto, shall have within the 
metropoUtan parks district all the powers of poUce officers and constables 
of cities and towns of this Commonwealth, except the power of serving 
and executing civil process, and when on duty may carry such weapons 
as said commission shall authorize. 

The power of police officers and constables to arrest w^ithout 
warrant any person committing in their presence a breach of the 
peace, and to hold such person until he can be brought before a 
magistrate, has long been recognized. 

It has often been held that constables, as conservators of the peace, 
have power to arrest, upon view, persons violating the laws, and detain 
them until they can be brought before a magistrate. (Shaw, C.J., in 
. Commonwealth v. Hastings, 9 Met. 259, 262.) 

And see Commoimealth v. Tohin, 108 Mass. 426, 429; Parker 
v. Barnard, 135 Mass. 116, 117. 

And the common law authority of such officers has been much 
broadened by statute. So it is provided in R. L., c. 31, § 2, 
that : — 

The watch shall suppress and prevent all disturbances and disorders. 
During the night time, they may examine all persons abroad whom they 
have reason to suspect of an unlawful design, and may demand of them 
their business abroad and whither they are going; may disperse any 
assembly of three or more such persons; and may enter any building to 
suppress a riot or breach of the peace therein. Persons so suspected who 
do not give a satisfactory account of themselves, persons so assembled 
and who do not disperse when ordered, and persons making, aiding or 
abetting in a riot or disturbance, may be arrested by the watch, and shall 



102 OPINIONS OF THE ATTORNEY-GENERAL. 

thereupon be safely kept, by imprisonment or otlierwise, until the next 
morning and then taken before a police, district or municipal court or 
trial justice to be examined and prosecuted. 

And in R. L., c. 212, §36: — 

Whoever is found in a state of intoxication in a public place, or is foimd 
in any place in a state of intoxication committing a breach of the peace 
or disturbing others by noise, may be arrested without a warrant by a 
sheriff, deputy sheriff, constable, watchman or police officer, and kept in 
custody in a suitable place until he has recovered from his intoxication. 

In R. L., c. 212, § 47, it is provided that in the case of rogues 
and vagabonds and other persons enumerated in the preceding 
section, they — 

may be apprehended by a sheriff, deputy sheriff, constable, police officer 
or watchman, or by any other person by the order of a magistrate or any 
of said officers, without a warrant and be kept in custody for not more 
than twenty-four hours, Sunday or a legal holiday excepted; and at or 
before the expiration of such time he shall be taken before a police, district 
or municipal court or trial justice and proceeded against, as provided in 
the preceding section, or discharged as such court or justice shall deter- 



See also St. 1906, c. 403; R. L., c. 212, §§ 57-62, etc. 

It would seem, therefore, that the metropolitan park police, 
having all the powers of police officers and constables with re- 
spect to offences against the law, may arrest without warrant in 
case of any breach of the peace committed in their presence or 
in the case of any criminal act when by statute a warrant is 
dispensed with; and it remains to determine whether or not a 
breach of the rules and regulations established by the Metro- 
politan Park Commission is a breach of the peace within the 
rule apparently established by the decisions. In the case of 
rules or regulations made under the provisions of St. 1894, c. 
288, no difficulty arises, for by section 3 breaches thereof are 
expressly made "breaches of the peace, punishable as such in 
any court having jurisdiction of the same." St. 1893, c. 407, 
does not contain identical language with this section, the words 



DANA MALONE, ATTORNEY-GENERAL. 103 

1 that statute (section 4) being that the Metropolitan Park 
ommission may "make rules and regulations for the govern- 
lent and use of the public reservations under their care, and for 
reaches thereof affix penalties ... to be imposed by any court 
F competent jurisdiction;" and it is, of course, conceivable that 
le addition of the specific declaration in the later act, that vio- 
.tions of the rules and regulations relating to parkways and 
oulevards shall be breaches of the peace, was intended to 
•eate a distinction between the rules relating to reservations 
ad public open spaces, and those applicable to parkways and 
aulevards; even if this be so, however, the distinction is not of 
■eat importance, for, so far as the violations of rules estab- 
shed under St. 1893, c. 407, § 4, do in fact constitute disturb- 
ices of the public peace upon such reservations or open spaces, 
ley may be so treated, and the offender may be arrested with- 
it warrant, the officer in such case acting by authority in- 
erent in his office. See Commonwealth v. Tobin, 108 Mass. 
26, 429. And this class of oft'ences must include by far the 
,rger number of the cases in which the officer is called upon to 

2t. 

Replying directly to the question as submitted, therefore, I 
m of opinion that a police officer appointed by the commission 
lay arrest without warrant any person who violates in his 
resence any rule or regulation duly made by the commission by 
uthority of St. 1894, c. 288, the so-called "boulevard act," and 
lay arrest without warrant any person who violates in his pres- 
nce any rule or regulation duly made by the commission by 
uthority of St. 1893, c. 407, the so-called "park act," when- 
e'er such violation involves acts which are in fact breaches of 
le public peace. 



104 opinions of the attorney-general. 

Treasurer and Receiver-General — Bonds of Common- 
wealth — Issue — Transfer to Executor or Adminis- 
trator. 

The Treasurer and Receiver-General, under R. L., c. 6, § 74, which pro\-ides "that 
the treasurer may . . . issue in substitution for mutilated, defaced or 
indorsed bonds presented to him other bonds of like or equivalent issues," 
may, at the request of an executor or administrator, transfer to such execu- 
tor or administrator in his individual capacity bonds issued by the Com- 
monwealth to a decedent or to the executor or administrator of a decedent, 
pro\-ided that in the case of an executor there is nothing in the will restrict- 
ing his general authority in the premises. 

TreM^er You Fcquest my opinion as to whether you may, at the re- 

G^ele^.^"" quest of an executor or administrator, transfer bonds issued by 

May 23. the Commouwealth to such executor or administrator in his 

individual capacit5^ I assume that your question appHes to 

bonds registered in the name of the decedent as well as to those 

registered in the name of an executor or administrator as such. 

Your authority to transfer bonds is derived from section 74 

of chapter 6 of the Revised Laws, which provides that : — 

The treasurer may . . . issue in substitution for mutilated, defaced 
or indorsed bonds presented to him other bonds of like or equivalent 
issues. 

There can be no doubt that in the case of bonds registered m 
the name of a deceased person, or of, an executor or admin- 
istrator as such, that the executor or administrator is the proper 
person to endorse them. You may, therefore, in the ordinary 
case legally register bonds so endorsed in the name of the trans- 
feree, upon satisfying yourself that the endorser is the executor 
or administrator. In my opinion, your duties in this regard are 
analogous to those of corporations with respect to the transfer 
of their corporate shares. It has been held that a corporation 
must be presumed to know what are the legal powers of an exec- 
utor, but not the particular provisions of any will; nor is it re- 
quired to determine whether or not the executor is acting 
properly. Hutchins v. State Bank, 12 Met. 421 (423). When a 
transfer of its stock is presented to a corporation, it is bound at 
its peril to see that it is a genuine transfer by one who has 



DANA M ALONE, ATTORNEY-GENERAL. 105 

power of disposition over the stock; but when a transfer by one 
who has the full power to transfer it is presented, the corpora- 
tion has the right to act upon it, and it is not its duty to in- 
:[mTe into the purposes of the parties or to investigate the ques- 
don whether that transaction is in good faith or is fraudulent. 
docker v. Old Colony R.R. Co., 137 Mass. 417. 

In the case of an executor I think it would be wise, although 
lot absolutely necessary, to satisfy yourself that there is noth- 
ng in the will restricting his general authority as executor. In 
he absence of any such restriction upon the authority of an 
jxecutor, and in any case without investigating the authority of 
m administrator, you may properly transfer bonds duly en- 
lorsed, without regard to the person to w'hom the endorsement 
uns. 



Civil Service — Vendor of Intoxicating Liquors — 

Agents. 

^he words, "vendor of intoxicating liquors," as used in R. L., c. 19, § 16, relating 
to the civil service, which provides in part that "no vendor of intoxicating 
liquors shall be appointed to or retained in any office, appointment or em- 
ployment to which the provisions of this chapter apply," are applicable to 
one who either as principal or agent sells intoxicating liquor, and would 
include persons who drive about among the customers of their employers and 
deliver intoxicating liquors and collect money from such customers, and who 
make sales upon their routes, as well as persons who are employed as bar- 
tenders. 

You request me to define the words "vendor of intoxicating xothe 

,, ,. . -.r>pi -I r\ p ^ -n> • 1 Civil Service 

iquors, as used in section 16 oi chapter 19 or the Revised Commission, 
^aws, relating to the civil service. That section is as follows: — May^. 

No person habitually using intoxicating liquors to e.xcess and no vendor 
f intoxicating liquors shall be appointed to or retained in any office, 
ppointment or employment to which the provisions of this chapter apply. 

The only real question as to the meaning of the word as used 
1 this statute is whether or not it includes an agent as well as a 
rincipal. A vendor is "the seller; one who disposes of a thing 
1 consideration of money." (Bouvier's Law Dictionary.) The 
endor of land, as distinguished from the grantor, is he who 



I0() OPINIONS OF THE ATTORNEY-GENERAL. 

negotiates the sale and becomes the recipient of the considera- 
tion, though the title comes to the vendee from another source 
and not from the vendor, Rutland v. Brister, 53 Miss. 683, 685. 
Thus, one who contracts to sell land which he does not own is a 
vendor. Of course the vendor is not in such case necessarily 
the agent of the grantor. The important thing is, however, 
that the vendor sells that to which he has no title. 

An early draft of the civil service bill used the words " person 
who holds a license for the sale," instead of the word "vendor." 
The bill as enacted contained the word "vendor," as at present. 
This clearly indicates an intention on the part of the Legislature 
to enlarge the restriction, and I am of opinion that the restric- 
tion so enlarged includes agents for the sale of intoxicating 
liquor, as well as principals. 

A vendor of intoxicating liquor would be, therefore, one who, 
either as principal or agent, sells intoxicating liquor. Persons, 
therefore, who in driving around among the customers of their 
employers and delivering beer, ale or other intoxicating liquors, 
collect money from these customers to whom the goods have 
been sold, and also sell to any on their routes who may wish to 
be supplied, and collect money on such sales, also persons who 
are employed as bartenders but who are not owners of liquor 
businesses, are, in my opinion, vendors of intoxicating liquors 
within the meaning of section 16 of chapter 19 of the Revised 
Laws. 



Clerks of Courts — Fees for Naturalization — County 

Accounts. 

Clerks of courts having jurisdiction to naturalize aliens as citizens of the United 
States, under the act of Congress of June 29, 1906, are not entitled to re- 
tain for their own use one-half of the naturalization fees received by them 
under such act, and all such fees should be paid over to the treasurer of the 
county for which such court is constituted. 

Controller ^'^u ask my opinion as to whether clerks of courts can retain 

AcSii'ts' ^or their own use and benefit one-half of the naturalization fees 
May 24 . undcr the naturalization law of the United States and the laws 

of this Commonwealth. 



DANA MALONE, ATTORNEY-GENERAL. 107 

R. L., c. 165, § 37, provides: — 

The annual salaries of clerks (of courts) shall be in full compensation 
or all services rendered by them in the civil or criminal courts, to the 
;ounty commissioners, in making any returns required by law or in the 
)erformance of any other official duty except for such clerical assistance 
IS may be allowed under the provisions of the following section. 

Section 31 of said chapter is as follows: — 

The clerks of the courts in the several counties, and of the supreme 
udicial court and the superior court in the county of Suffolk, shall keep 
. cash book, which shall be county property and shall be and remain a 
)art of the records of the courts, in which they shall keep accounts of all 
ees received by them for their official acts and services, including fees 
or copies which they are not required by law to furnish, fees and money 
n proceedings relative to naturalization or for naturalization certificates, 
,nd all fees and money of whatever description or character received by 
hem, or by any assistant or other person in their offices or employment, 
or any acts done or services rendered in connection with their said 
iffices, and shall on or before the tenth day of each month pay over to 
he treasurer of the county, or to such other officer as is entitled to 
eceive them, all fees received during the preceding calendar month, and 
hall render to him an account thereof under oath. 

The United States Naturalization Act of June 29, 1906 (34 
J. S. St. at Large, 596), provided in section 3 as follows: — 

That exclusive jurisdiction to naturahze afiens as citizens of the United 
itates is hereby conferred upon the following specified courts: United 
States Circuit and District Courts now existing . . . ; also all courts 
'f record in any state or territory now existing, or which may hereafter 
•e created, having a seal, a clerk, and jurisdiction in actions at law or 
quity, or law and equity, in which the amount in controversy is unlimited. 

It is further provided in section 13 of said act, as follows: — 

That the clerk of each and every court exercising jurisdiction in natural i- 
' ation cases shall charge, collect, and account for the following fees in 
ach proceeding: . . . The clerk of any court collecting such fees is 
ereby authorized to retain one half of the naturalization fees collected 
[•y him in such naturahzation proceeding; the remaining one half of the 
aturafization fees in each case collected by such clerks, respectively, shall 
e accounted for in their quarterly accounts which they are hereby required 



108 OPINIONS OF THE ATTORNEY-GENERAL. 

to render the Bureau of Immigration and Naturalization, and paid ovei 
to such bureau within thirty days from the close of each quarter in each 
and every fiscal yeai- ... In addition to the fees herein required, the 
petitioner shall deposit with and pay to the clerk of the court a sum ol 
money . . . ; provided that the clerks of courts exercising jurisdictioc 
in naturalization proceedings shall be permitted to retain one half of the 
fees in any fiscal year up to the sum of three thousand dollars. 

You inquire: — 

1. Have the clerks of courts heretofore referred to the right tc 
retain for their own use one-half the naturalization fees receivec 
by them under the naturalization laws of the United States? 

2. If they have not such right, to whom should said one-hali 
be paid by said clerks? 

You will observe that section 37 of chapter 165 of the Revisec I 
Laws provides that salaries of clerks shall be in full compensa 
tion for all services rendered by them in the civil or crimina 
courts; and that section 31 of said chapter provides that the 
clerks of courts in the several counties shall keep a cash booli 
in which they shall keep accounts of all fees received by then 
for their official acts and services, including fees and money u 
proceedings relative to naturalization or for naturalization cer 
tificates, and all fees and money of whatever description or char 
acter received by them, etc., and shall on or before the tentt 
day of each month pay over to the treasury of the county al 
fees received during the preceding calendar month, and shal 
render to him an account thereof under oath. 

It seems to me clear, therefore, that the clerks of courts can- 
not retain for their own use one-half of said naturalization fees 
received by them under the naturalization laws of the United 
States, as their duties and powers are prescribed by the laws 
of this Commonwealth, and they perform the duties required by 
the United States naturalization act by virtue of their oflSces as 
clerks of courts of this Commonwealth and not through ap- 
pointment by the United States, and our law specially requires 
that all naturalization fees be paid over to the treasurer of the 
county.^ 

1 But see County of Hampden, 207 Mass. 167. 



DANA MALONE, ATTORNEY-GENERAL. 109 



ONSTITUTIONAL LaW — CiTIES AND ToWNS — HARVEST AND 

Sale of Ice — Taxation. 

proposed bill, entitled "An Act to authorize the city of Holyoke to harvest and 
sell ice at wholesale," which in part provides for the raising of money by tax- 
ation to directly defray the cost of the carrying on by such city of the business 
of harvesting and selling ice, or for the repayment of loans made for such 
purpose, is unconstitutional, as authorizing the raising of money by taxation 
for a purpose not public in its nature. 

You request my opinion as to the constitutionality of a bill q^^^^^^^,^ 
bich has passed the Senate and the House of Representa- jy^e'ig 
v^es, entitled "An Act to authorize the city of Holyoke to 
irvest and sell ice at wholesale." This bill authorizes the 
ty of Holyoke to " cut and harvest ice from any great pond or 
/er in its limits and from any ponds or reservoirs used by the 
unicipality as a water supply, and to store and sell the same 

wholesale to the inhabitants of the city." It authorizes the 
king of land or easements and the raising of money by taxa- 
)n or by loan for the purpose of carrying out its provisions. 
The principal question raised by your inquiry is whether or 
•t the cutting and harvesting of ice and the storing and sale 

the same at wholesale to the inhabitants of a municipality is 
public purpose, for which money may be raised by taxation. 
16 precise question has not been passed upon by our courts, 
•r, so far as I can discover, by the courts of any other State. 
' le justices of the Supreme Judicial Court, however, have been 
lied upon to pass upon analogous questions. In the Opinion 

the Justices, reported in 150 Mass. 592, the justices advised 
e House of Representatives that under the Constitution the 
;gislature has power to authorize cities and towns to manu- 
: sture and distribute gas or electric light for use in their public 
i'eets and buildings and for sale to their inhabitants. Long 
1 fore that opinion was given it was held that the " supplying 
< a large number of inhabitants with pure water is a public 
irpose." Lumbard v. Stearns, 4 Cush. 60. 

On the other hand, in an Opinion of the Justices to the House 
( Representatives, reported in 155 Mass. 598, a majority of 
^e justices expressed the opinion that the Legislature could not 



^ 



110 OPINIONS OF THE ATTORNEY-GENERAL. 

under the Constitution authorize cities and towns to buy coal 
and wood for the purpose of sale to their inhabitants for fuel 
and in an Opinion of the Justices to the House of Representa- 
tives, reported in 182 Mass. 605, the justices were unanimously 
of the opinion that in the absence of an extraordinary emer- 
gency it was not within the constitutional power of the Legis- 
lature to enact a law conferring upon cities and towns authoritj 
to establish and maintain municipal fuel or coal yards or to pur 
chase coal and wood for the purpose of selling it generally t( 
their inhabitants or others. 

The line of distinction between these two classes of cases wa; 
pointed out in the opinion last referred to. It was there saic 
(p. 608) : — 

The business of selling fuel can be conducted easily by individuals ii 
competition. It does not require the exercise of any governmenta 
function, as does the distribution of water, gas and electricity, whicl 
involves the use of the public streets and the exercise of the right ol 
eminent domain. It is not important that it should be conducted as i 
single large enterprise with supplies emanating from a single source, as 
is required for the economical management of the kinds of business lasl' 
mentioned. It does not even call for the investment of a large capital 
but it can be conducted profitably by a single individual of ordinar} 
means. 

To my mind this language is as applicable to the business oi 
selling ice to the inhabitants of a city or town generally as t( 
the business of selling fuel to such inhabitants, and indicate: 
that the conducting of such a business is not a public purpose 
for which money may be raised by taxation. Moreover, when il 
is considered that the bill authorizes the sale of ice at wholesale 
only, it is even more apparent that the purpose is not public. 

My conclusion, therefore, is that the bill concerning whicl 
you request my opinion, authorizing, as it does, the raising o 
money by taxation to provide directly for the cost of carrying 
on the business of harvesting and selling ice or for the repay- 
ment of loans made to provide therefor, is unconstitutional, as 
authorizing the raising of money by taxation for a purpose nol 
public in its nature. 



DANA MALONE, ATTORNEY-GENERAL. Ill 



Attorney-General — Legislative Committee — Prepara- 
tion AND Draft of Proposed Legislation. 

It is not within the scope of the duties of the Attorney-General to draft proposed 
legislation, or to advise a committee of the Legislature except upon bills 
actually pending before it; but if so requested he may, in his discretion 
and as matter of courtesy, submit a draft of a bill for the consideration and 
assistance of such committee. 

Certain questions have been orally and informally referred c°^^ittpp 
to me with respect to a so-called merger of the Boston & Maine o° Railroads. 
Railroad with the New York, New Haven & Hartford Railroad ^'^^■ 
Company, and certain legislation designed to prohibit or con- 
trol such merger has been submitted for my consideration. 

I desire to point out to your committee that there is at pres- 
ent before me no evidence whatever of the actual and existing 
relations of the two companies above mentioned, except the 
statement of President Mellen that "certain interests identified 
with my company have placed the control of the Boston & 
Maine Railroad where my company can have it when they get 
the power to take it," and therefore that the use of the word 
"merger" in connection with such transactions as may have 
taken place between such corporations or the individual stock- 
holders thereof is as yet unwarranted. 

It would appear, however, that at present the effect of the 
action of the New York, New Haven & Hartford Railroad Com- 
pany in the premises, and the object which that corporation is 
now seeking to attain, is to establish a control of the Boston & 
Maine Railroad through interests friendly to the New^ York, 
New Haven & Hartford Railroad Company by means of the 
purchase of the stock of the Boston & Maine Railroad sufficient 
to enable the New York, New Haven & Hartford Railroad 
Company to elect such directors as it may desire to place in 
ofiice, who might manage and operate the Boston & Maine 
Railroad in the interest of the corporation by whose stock they 
were elected, and to the possible disadvantage of the corpora- 
tion of which they are officers and of the people of the Com- 
monwealth. 

St. 1906, c. 463, part 11., § 57, provides in part that "a rail- 



112 OPINIONS OF THE ATTORNEY-GENERAL. 

road corporation . . . shall not directly or indirectly subscribe 
for, take or hold the stock or bonds of or guarantee the bonds 
or dividends of any other corporation;" and actions brought 
under this section against the New York, New Haven & Hart- 
ford Railroad Company to test the legality of the means by 
which that corporation controls the stock in certain Massachu- 
setts street railway companies are now pending before the 
Supreme Judicial Court. No evidence has come to my atten- 
tion of any violation of this section of the statute, arising out 
of the attempted control of the Boston & Maine Railroad, nor 
is there such evidence in the report of the hearing before your 
committee. 

Further legislation drawn by me and based upon the sugges- 
tions contained in His Excellency's message of June 5, 1907, 
now before your committee, is submitted herewith, as contain- 
ing in proper legal form the views of His Excellency in the 
premises. In response to a vote of the committee, I also annex 
hereto a draft of a bill which in my judgment is sufficient, by 
reason of its provisions, to prevent the control of a corporation 
chartered by the Commonwealth from passing, through the 
purchase of its stock, into the hands of corporations or individ- 
uals less directly within and subject to the jurisdiction of the 
Commonwealth, and which in my opinion is a constitutional 
exercise of the powers of the Commonwealth in the premises. 

Strictly, it is not within the scope of the duties of the Attor- 
ney-General to draft proposed legislation, nor, indeed, to advise 
a committee of the Legislature except upon such bills as may be 
actually pending before it. In the present situation, however, 
I have prepared a draft of a bill for your consideration, not 
only as a matter of courtesy, but because I desire to render to 
your committee such assistance as is in my power in safe- 
guarding the interests of the Commonwealth. Should the 
Legislature, or either branch of it, or your committee, by a 
formal inquiry in writing, seek my opinion and advice upon any 
question presented by or relating to any legislation, it will then 
become my duty to reply thereto as fully as circumstances may 
require. 



DANA MALONE, ATTORNEY-GENERAL. 113 



•TATE Highway — Alteration of Location — Abandonment. 

portion of an existing State highway which, under a proposed plan for altera- 
tion of location under R. L., c. 47, §§ 7 and 8, does not fall within the limits 
of such highway as established by such alteration, may be abandoned. 

The Massachusetts Highway Commission requests my opinion To the 
3 to whether a portion of the State highway in the town of Highway 

.,''., Commission. 

rimfield may be abandoned by the commission, in view of the . i^o^ 



roposed laying out and taking charge of a new State highway 
mning substantially parallel to the portion proposed to be 
bandoned. 

The statute in question is R. L., c. 47, §§ 7 and 8, which 
rovide as follows : — 

Section 7. Said commission may, with the concurrence of the mayor 
id aldermen of a city or the selectmen of a town, alter the location of a 
ate highway in such city or town by filing a plan thereof and a certificate 
lat said commission has laid out and taken charge of said state highway, 
i altered in accordance with said plan, in the office of the county com- 
issioners for the county in which said highway is situated, and by fiUng 
copy of the plan or location as altered in the office of the clerk of such 
ty or town. ♦ 

Section 8. Said commission may, with the concurrence of the mayor 
id aldermen of a city or the selectmen of a town, abandon any land or 
irt thereof, or rights in land which have been taken or acquired by it in 
ich city or town by executing, acknowledging and recording a deed 
lereof accompanied by a plan of survey which shall be recorded therewith, 
lid abandonment shall revest the title to the land or rights abandoned 
I the persons, their heirs and assigns, in whom it was vested at the time 
" the taking, and may be pleaded in reduction of damages in any suit 
lerefor on account of such taking. 

These sections were originally Acts of 1900, c. 475, §§ 1 and 
It is obvious that the two sections must be read together, 
id together provide for the alteration of an existing location 
id the abandonment of that portion thereof which is not to be 
ibjected to the easement in favor of the public in the new 
cation. If this be so, the only question to determine is whether 
' not the proposed action by the commissioners will or may be 
1 alteration of the location within the meaning of section 7. 



June 25. 



]\\ OPINIONS OF THE ATTORNEY-GENERAL. 

If the proposed plan contemplates the laying out and taking 
charge of a wholly new piece of State highway, I think the 
existing one cannot lawfully be abandoned. But it seems to me 
that the plan can be properly carried out as an alteration of the 
existing highway. The proposed new highway will apparently 
run for a substantial distance along a route which, though en- 
tirely distinct from the present highw^ay, will render its use 
superfluous. 

I think these facts are sufficient to make the new location an 
alteration as defined by Knowlton, C.J., in Bennett v. Wellesley, 
189 Mass. 308, at pp. 318, 319. 

An opinion of my predecessor, dated Sept, 6, 1902, and re- 
ferred to by your commission, was in answer to the question 
whether or not a State highway might be wholly abandoned by 
the commissioners and surrendered to a town to be under the 
sole control of the town, and has therefore no relation to the 
question of alteration now under discussion. 

I am therefore of opinion that the portion of the location of 
the present State highway which will not fall within the limit 
established by the new plan may be abandoned by the Highway 
Commission, provided that the new portion be laid out and 
taken charge of as an alteration of the location of the existing 
highway, in accordance with the provisions of sections 7 and 8 
of chapter 47. 

Pauper — Settlement — Assessment of Taxes. 

Under the provisions of R. L., c. 80, § 1, cl: 5, providing that "A person of the 
age of twenty-one years who resides in any place within this Commonwealth 
for five consecutive years and within that time pays all state, county, city 
or town taxes duly assessed on his poll or estate for any three years within 
that time shall thereby acquire a settlement in such place," it is necessary 
not only that the required taxes should be paid but also that the assessments 
thereof should be made within such period. 

i^ton'dentor' You rcqucst my opinion as to whether Robert S. Chute, a 
state Adult pauper, has acquired a legal settlement in Lynn under the pro- 
.luiy 2. visions of R. L., c. 80, § 1, cl. 5, which is as follows: — 

A person of the age of twenty-one years who resides in any place 
within this coninionwealth for five consecutive years and within that 



DANA MALONE, ATTORNEY-GENERAL. 115 

ime pays all state, county, city or town taxes duly assessed on his poll 
r estate for any three years within that time shall thereby acquire a 
Bttlement in such place. 

The facts of the case are these: A pauper, aged thirty-nine, 
•as committed to the Foxborough State Hospital Nov. 2, 1905. 
[e had resided in Lynn continuously since 1902, and had been 
ssessed a poll tax for the years 1893, 1894 and 1897, which 
ad been paid May 10, 1894, Feb. 19, 1895, and Aug. 15, 1898, 
ispectively. 

The question is, whether the statute requires that the same 
ve-year period which embraces the three dates of payment 
lUst also embrace the three dates of assessment, even though 
le three assessments were made within a five-year period. 

It is settled by the decisions that the pauper must have lived 
I a city or town during the whole of the three years for which 
le taxes were assessed. Taunton v. Wareham, 153 Mass. 192. 
he pauper in the present case having paid between Aug. 15, 
S93, and Aug. 15, 1898, the taxes assessed to him for 1893, 
S94 and 1897, has he complied with the express requirement 
"' the statute that he shall have paid all "taxes duly assessed 
n his poll or estate for any three years within that time"? 
an the three years, 1893, 1894 and 1897, be considered within 
16 five-year period from Aug. 15, 1893, to Aug. 15, 1898? 
he taxation year is from May 1 to May 1. Southboroiigh v. 
(arlbormgh, 24 Pick. 166. The taxation year in 1893 began on 
[ay 1, and therefore that year is not wholly Avithin the period 
2ginning with Aug. 15, 1893. Under a strict construction, it 
innot be held that the taxes assessed in the present case were 
>r three years within a period of five years. It has long been 
'ttled that the five years' residence and the five years of taxa- 
on must be coincident. Southboroiigh v. Marlborough, supra. 

Prior to 1898 the Attorney-General gave an opinion that, 
ider Pub. Sts., c. 83, § 1, cl. 5, if three taxes assessed for three 
?ars within a period of five years were paid, it was immaterial 
lat payment was not made within a five-year period. (See 

Op. Atty.-Gen. 519.) The law was amended by Acts of 1898, 

425, § 1, so as to require that the three taxes assessed within 



110 OPINIONS OF THE ATTORNEY-GENERAL. 

the five-year period should also be paid within a period of five 
years. It seems fairly clear that it is the intention of the Legis- 
lature, by the act of 1898, to provide that the required number 
of taxes should be assessed and paid within one five-year period 
of residence. 

I am therefore of opinion that the pauper in question did not 
acquire a legal settlement in Lynn under the provisions of the 
statute above quoted. 

Automobiles — Registration by Dealer — Expiration of 

Registration. 

The provision of St. 1903, c. '473, § 1, as amended by St. 1907, c. 580, § 1, that 
"the registration of every automobile or motor cycle shall expire upon the 
first day of January in each year," is applicable not only to automobiles or 
motor vehicles which are owned by single individuals, but also to similar 
vehicles when owned or controlled by dealers. 

Massachusetts The Massachusctts Highway Commission requires my opinion 
commfssion. upou a questiou arising under St. 1907, c. 580, which is entitled 
ju^V "An Act relative to automobiles and motor cycles." Your 

communication states that : — 

In section 1 of this act, in the last sentence, it is stated "The registra- 
tion of every automobile or motor cycle shall expire upon the first day of 
January in each j^ear." Section 2 of the act relates to the registration 
of motor vehicles owned or controlled by manufacturers or dealers. In 
this section it is not specifically stated that the registration of such ma- 
chines shall expire annually, and the commission is in doubt whether or not 
it is intended by the law that the registration certificates shall so expire. 

St. 1907, c. 580, § 1, amends St. 1903, c. 473, § 1, by adding 
at the end of the section the words, "The registration of every 
automobile or motor cycle shall expire upon the first day of 
January in each year." The section, before amendment, pro- 
vided for the registration of automobiles and motor cycles, but 
contained no provision with regard to the expiration of the 
registration required; and section 2 of chapter 580 of St. 1907 
amended section 2 of chapter 473 of St. 1903, by substituting 
the word "fifteen" for the word "ten," so that the amended 
section reads as follows : — 



DANA MALONE, ATTORNEY-GENERAL. 117 

Everj' manufacturer of or dealer in automobiles or motor cycles maj^, 
instead of registering each automobile or motor cycle owned or controlled 
by him, make application upon a blank provided by said commission for 
a general distinguishing number or mark, and said commission maj'', if 
satisfied of the facts stated in said application, grant said application, 
and issue to the applicant a certificate of registration containing the 
name, place of residence and address of the appUcant, and the general 
distinguishing number or mark assigned to him, and made in such form 
and containing such further provisions as said commission may determine; 
and all automobiles and motor cycles oAvned or controlled by such manu- 
facturer or dealer shall, until sold or let for hire or loaned for a period of 
more than five successive days, be regarded as registered under such 
general distinguishing number or mark. The fee for every such certificate 
of registration shall be fifteen dollars. 

The question submitted is not free from difficulty. It is to 
be observed that section 2, above quoted, does not contain any 
provision whatever for the expiration of the registration of auto- 
mobiles or motor cycles owned or controlled by a manufacturer 
or dealer; and it might fairly be contended that such registra- 
tion continued indefinitely, notwithstanding the provision al- 
ready referred to which was added to section 1 of chapter 473 
of St. 1903. Upon the whole, however, I am inclined to believe 
that the two sections must be read together, and that the regis- 
tration referred to in section 2 is the registration established by 
section 1, which expires annually upon the first day of January 
n each year. 

The provisions of section 2 are intended to provide an alter- 
lative for a dealer who owns or controls many automobiles or 
Dotor cycles, so that he may by a single registration "register 
^ach automobile or motor vehicle owned or controlled by him." 
There is nothing in the section to indicate that the Legislature 
ntended to permit a dealer, by a single registration and the 
)ayment of a single fee of $15, permanently to register all such 
lutomobiles or other motor vehicles which he might own or 
control in the course of his business. 

I am therefore of the opinion that the commission should hold 
hat the amendment of section 1 of chapter 580 of St. 1907, — 
'The registration of every automobile or motor cycle shall 



118 OPINIONS OF THE ATTORNEY-GENERAL. 

expire upon the first day of January in each year," — is appli- 
cable not only to automobiles or motor vehicles which are 
owned by private individuals, but also to similar vehicles when 
owned or controlled by dealers. 



Member of Legislature — Eligibility for Other Office — 
Examiner of Private Bankers. 

A member of the Legislature for the session of 1907 is ineligible for appointment 
to the position of examiner of persons, partnerships, associations or corpora- 
tions engaged in private banking, created by St. 1907, c. 377, § 4. 

To the Bank J liavc vour letter of the 16th, in which you inquire in refer- 

juiy'^is 6^^^^ ^o the appointment of a member of the present Legislature 

as a clerk in your department, whose especial duty is to be to 
examine private bankers, under the supervision of your depart- 
ment, as required by chapter 377 of the Acts of 1907. 

Section 21 of chapter 3 of the Revised Laws provides that: — 

No member of the general court shall, during the term for which he is 
elected, be ehgible to any office under the authority of the commonwealth 
created during such term, except an office to be filled by vote of the people, i 

Section 4 of chapter 377 of the Acts of 1907 reads as follows: 

The bank commissioner shall, at such times as he may deem expedient, 
examine, either personally or by a competent examiner whom he shall 
appoint, every such person, partnership, association or corporation, and 
thoroughly inspect and examine its affairs to ascertain its financial con- 
dition and whether it has complied with all provisions of law applicable 
thereto. The proper charges incurred by reason of any such examination 
shall be paid by the person, partnership, association or corporation* 
concerned. 

The law contemplates an examination either by yourself per- 
sonally or by a competent examiner whom you shall appoint. 
Your right to so appoint was given you by said chapter 377 of 
the Acts of 1907. The Legislature intended by section 21, 
above quoted, to prohibit the appointment of a member of thei 
General Court to any office which was created during the term 



DANA MALONE, ATTORNEY-GENERAL. 119 

for which he was elected. It seems to me that section 4, above 
quoted, creates an office which cannot be filled by such member. 
I note you say in your letter that he would perform other 
duties, of a clerical nature, in your department. You would, 
however, be obliged to appoint him an examiner if he should 
examine the private bankers that you name, for otherwise he 
would have no authority in the premises; and I must therefore 
reply that such an appointment would be contrary to law. 

A similar inquiry was submitted to the late Attorney-General 
Knowlton in reference to an appointment to the office of in- 
surance examiner. The reply was in the negative, and I quote 
from the opinion the following: — 

The obvious purpose of this statute is to remove from a member of the 
Legislature any temptation to be influenced in his vote by reason of the 
possibility that he may be a candidate for the places created by the Legis- 
lature of which he is a member. (1 Op. Atty.-Gen. 347.) 

In this view of the law I concur, and am of the opinion that 
it is applicable to this case. 



Veteran in the Service of the Commonwealth — Retire- 
ment. 

A. veteran of the civil war employed by the Metropolitan Park Commission as a 
police officer is "in the service of the Commonwealth" within the meaning 
of St. 1907, c. 458, which provides in part that "a veteran of the civil war 
in the service of the Commonwealth, if incapacitated for active duty, shall 
be retired from active service with the consent of the governor." 

' In reply to your communication of July 24, inquiring whether to the Metro 
!)r not a veteran of the civil war emploved bv the Metropolitan Commisaion. 

. ' . "^ . 1907 

Park Commission as a police officer is "in the service of the Ju'y si . 
Commonwealth," within the meaning of St. 1907, c. 458, which 
provides in part that "a veteran of the civil war in the service 
3f the Commonwealth, if incapacitated for active duty, shall be 
retired from active service, with the consent of the governor, 
at one half the rate of compensation paid to him when in active 
service, to be paid out of the treasury of the Commonwealth," 



120 



OPINIONS OF THE ATTORNEY-GENERAL. 



I have to advise you that in my opinion a veteran so employed 
is engaged in the service of the Commonwealth, within the 
meaning of the statute above quoted, and may be retired as 
therein provided. If the veteran in question is so retired, 
however, there seems to be no existing legislation which would 
authorize the assessment of the pension to which he would 
become entitled upon the metropolitan parks district, and the 
expense of such pension would therefore have to be borne by 
the Commonwealth, requiring a special appropriation therefor 
by the Legislature. 



Corporation — Agreement of Association 
Husband and Wife. 



Parties — 



To the Com- 
missioner of 
Corporations. 

1907 
August 8. 



A husband and wife may legally enter into the contract represented by an agree- 
ment of association for the purpose of forming a corporation under the gen- 
eral laws. 

In reply to your communication dated Aug. 1, 1907, I advise 
you that in my opinion a husband and wife may legally enter 
into the contract represented by an agreement of association 
for the formation of a corporation. 

Under the laws of this Commonwealth a married woman may 
undoubtedly enter into the contract represented by an agree- 
ment of association for the formation of a corporation. R. L., 
c. 153, § 2. She may enter into such a contract even if her 
husband is also a party thereto, unless by so doing she is mak- 
ing a contract with him. If the contract is not between the 
husband and wife, the fact that they are both parties to it is 
not objectionable. Major v. Holmes, 124 Mass. 108. 

In my opinion a married woman is not contracting with her 
husband when she and he enter into the contract represented by 
an agreement of association for the formation of a corporation. 
The agreement of association constitutes an offer which must be 
accepted by the corporation before it can become binding. The 
formation of the corporation constitutes an acceptance of the 
offer made by the persons signing the agreement of association. 
The parties to the contract thereby formed are the corporation 
on the one hand and the subscribers on the other. 



DANA MALONE, ATTORNEY-GENERAL. 121 

That this is the true nature and effect of the agreement of 
issociation appears from the decisions of the court in the cases 
)f Atliol Mvsic Hall Co. v. Carey, 116 Mass. 471, and Hudson 
Real Estate Co. v. Tower, 156 Mass. 82. In the former case it 
vas said (p. 473) that: — 

The promise of each subscriber "to and with each other," is not a 
ontract capable of being enforced, or intended to operate literally as 
, contract to be enforced between each subscriber and each other who 
nay have signed previously, or who should sign afterwards, nor between 
ach subscriber and all the others collectively as individuals. The under- 
aking is inchoate and incomplete as a contract until the contemplated 
rganization is effected, or the mutual agent constituted to represent the 
ssociation of individual rights in accepting and acting upon the propo- 
itions offered by the several subscriptions. When thus accepted, the 
remise may be construed to have legal effect according to its purpose 
nd intent, and the practical necessity of the case; to wit, as a contract 
'ith the common representative of the several associates. 

In advising you as above I am not unmindful of the opinion 
f a former Attorney-General,^ in which he said that he saw no 
uflBcient reason for changing what he understood — 

3 have been the uniform practice of j'our department, to decline to accept 
husband and wife toward making up the necessary number of associates, 
n the ground that the agreement is a contract between each subscriber 
ad all the others, and that a husband and wife camiot lawfully make 
ich a contract with each other. 

I With deference to the opinion of my predecessor, I cannot, in 
iew of the decisions cited, agree with his conclusion upon the 
uestion which you submit. 

1 1 Op. Atty.-Gen. 47. 



122 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

.Ma.ssuchusetts 
Highway 
Commission. 

1907 
October 25. 



Public Records — Returns of Companies engaged in the 
Transmission of Intelligence by Electricity. 

By St. 1906, c. 433, the Massachusetts Highway Commission is required to re- 
ceive and file the annual returns made by companies engaged in the trans- 
mission of intelligence by electricity within the Commonwealth, and such 
returns are therefore public records, under R. L., c. 35, § 6, which defines 
public records to be "any written or printed book or paper . . . which any 
officer or employee of the Commonwealth . . . has received or is required 
to receive for filing." 

The Massachusetts Highway Commission asks my opinion 
as to whether or not the annual returns made by companies 
engaged in the transmission of intelHgence by electricity within 
the Commonwealth, which are filed with the commission in 
accordance with the provisions of St. 1906, c. 433, § 8, are to be 
considered as public records, to the extent that they are to be 
open to the inspection of the public. 

St. 1906, c. 433, § 8, is as follows: — 

Every company engaged in the business of the transmission of intelli- 
gence by electricity within the Commonwealth shall annually, on or before 
the first day of October in each year after the year nineteen hundred and 
six, submit to said commission a report of its doings for the year ending 
on such date or dates preceding as said commission may designate, which 
report shall be in such form and detail as the commission may from time 
to time prescribe, and shall be called the "Annual Return". Such return 
shall be sworn to by the treasurer and by th,e chief accounting officer of 
such company, and shall include a statement of its business, receipts and 
expenditures within the Commonwealth during the year, its dividends 
paid out and declared, the amount of its authorized capital and its in- 
debtedness and financial condition, on such date or dates as said com- 
mission may designate. 



Section 9 provides for a penalty for failure to make the 
annual return required by the preceding section. 
R. L., c. 35, § 5, provides that: — 

In construing the provisions of this chapter and other statutes, the 
words "pubhc records" shall, unless a contrary intention clearly appears, 
mean any written or printed book or paper . . . which any officer or 
employee of the commonwealth or of a county, city or town has received 
or is required to receive for filing. 



DANA MALONE, ATTORNEY-GENERAL. 123 

Section 17 of the same chapter provides that: — 

Every person who has the custody of any pubhc records shall, at 
•easonable times, permit them to be inspected and examined by any 
person, under his supervision, and shall furnish copies thereof on the 
)aymcnt of a reasonable fee. 

The provisions of R. L., c. 35, § 5, above quoted, were consid- 
ered in an opinion of the Attorney-General, dated Sept. 22, 
1902, and addressed to the Insurance Commissioner, which 
lealt with the annual returns required to be filed by insurance 
companies under the provisions of R. L., c. 118, § 96. It is 
here stated that : — 

This legislative definition cannot be held to include within its intention 
ivery paper which an officer of the Commonwealth receives and files. 
it must be limited to such as he is required by law to so receive for filing, 
^ny other construction must be prejudicial to the rights and interests 
)f the Commonwealth or its officers, and, indeed, of parties or persons 
naking communications with such officers. 

The original act for which the provision of the Revised Laws is a sub- 
stitute, St. 1897, c. 439, § 1, called a pubhc record any paper which a 
mblic officer is required by law to receive, or in pursuance of any such 
equirement has received for fifing. The compilers of the Revised Laws 
lave not preserved the distinction between a paper which an officer is 
•equired by law to receive and one which he receives for his own con- 
/enience. The existing qualification for the purpose of definition makes 
I test of the requirement to receive for filing, and any paper so received 
'alls within the definition of a public record. (2 Op. Atty.-Gen. 381.) 

I can see no distinction, for the purposes of this inquiry, 
)etween the returns filed with the Insurance Commissioner by 
nsurance companies and those filed w-ith the Massachusetts 
highway Commission by telephone companies; and, since it 
ippears that the Massachusetts Highway Commission is re- 
juired to receive and file the returns provided for in section 8, 
iuch returns must, in my opinion, be deemed to be public 
■ecords, and as such open to the inspection of the public. 



124 OPINIONS OF THE ATTORNEY-GENERAL. 



State Board of Charity — Minor Child — Religious 
Faith — Adoption — Discharge. 

St. 1905, c. 464, § 1, which in part pro^ades that "No minor child in the care, or 
under the supervision of any state board of charity, or of any state commis- 
sion, or state board of trustees, shall be denied the free exercise of the re- 
ligion of his parents . . ." does not affect the authority of the State 
Board of Charity in its discretion to discharge a minor child committed to its 
custody into the custody of adopted parents, if it appears to such Board that 
the objects of the commitment have been accomplished and that the inter- 
ests of the child will be best served by such discharge, notwithstanding that 
the religious belief of such adopted parents differs from that of the natural 
parents of such child. 

_ . The State Board of Charity informs me that it has received 

10 tne ^ 

o/cha^rfty.*^ f^om Jcssc M. Puriiiton and Clara F. Purinton "a petition 
Novemb'eris. foF the discharge of one Kate Jamrock to their care;" and I am 
requested to give my opinion as to the bearing of the provisions 
of chapter 464 of the Acts of 1905 on the powers of the Board 
with respect to the granting of the petition in question. I am 
further asked whether there is any other law affecting its action 
and power of discharge in said case. 

Section 1 of chapter 464 of the Acts of 1905 reads as follows: 

No parents, or surviving parent; of any minor child in the care or under 
the supervision of the state board of charity, or of any state commission, 
or of any state board of trustees, shall be denied the right of any child 
of theirs to the free exercise of the religious ^belief of his parents and the 
liberty of worshipping God according to the religion of his parents, or 
surviving parent, or of the religion which his parents professed, if they 
are both deceased; and no minor child in the care, or under the super- 
vision of any state board of charity, or of an)^ state commission, or state 
board of trustees, shall be denied the free exercise of the rehgion of his 
parents, or of his surviving parent, or of his parents if they are both de- 
ceased, nor the liberty of worshipping God according to the religion of his 
parents, whether living or deceased. 

I regard the question as to this statute as settled by the case 
of Purinton et al. v. Jamrock, 195 Mass. 187, 199, in which the 
court say : — 

It is undoubtedly the general policy of the Commonwealth to secure 
to those of its wards who arc children of tender years the right to be 



DANA MALONE, ATTORNEY-GENERAL. 125 

rought up, where this is reasonably practicable, in tlie religion of their 
irents. St. 1905, c. 464, § 1. But it is the right of the children that is 
■oteded by this statute. The rights of the parents arc still regulated by 
le same principles as before. . . . The first and paramount duty is 
> consult the welfare of the child. The wishes of the parent as to the 
ligious education and surroundings of the child are entitled to weight; 
there is nothing to put in the balance against them, ordinarily they will 
• decisive. If, however, those wishes cannot be carried into effect 
ithout sacrificing what the court, sees to be for the welfare of the child, 
ey must so far be disregarded. The court wall not itself prefer one 
lUrch to another, but will act without bias for the welfare of the child 
ider the circumstances of each case. . . . The parents' religion is 
ima facie the infant's rehgion, and the infant should be brought up in 
at reUgion and protected against disturbing influences from persons 
a different religious faith; but the infant's weKare must be first of all 
garded, and its requirements must be treated as paramount. 

Further, the court say : — 

This child has been for over four years in the family of the petitioners; 
cy were found to be suitable persons to have her custody and education; 
strong affection had growai up between her and them; her interest will 

greatly jiromotcd by the adoption. 

In advising you in this matter, I am therefore obhged to 
^fer to the opinion of our highest court, and to say that the 
neral pohcy of the law as to the rights of parents has not been 
anged by said statute, but the statute evidently intended to 

I ovide that the child should not be denied the free exercise 
the religion of her parents when she is of sufficient under- 

;mding to choose for herself. 
As to the final paragraph of said opinion, which reads, — 

We have treated the questions arising upon these exceptions as if the 

< oct of this decree of adoption would be to entitle the petitioners at 

< EC to the custody and control of the child. But in this case she is still 
i the custody of the State Board of Charity, and apparently will so 
1 Qain until she shall come of age, or that Board shall consider the object 
( the conmiitmcnt accomplished, — 

i IS entirely within the discretion of the Board to keep the child 
i its custody until the child shall become of age, or the Board 



126 



OPINIONS OF THE ATTORNEY-GENERAL. 



shall consider the object of the commitment accomplished. It 
the Board should in their discretion decide that the object 
of the commitment has been accomplished, and vote to discharge 
the child, the adopted parents, being the petitioners, would 
acquire the custody and incur the responsibility of the parent? 
in respect to such child. 

The court seems to regard the whole matter as entirely withir 
the discretion of the Board, taking into consideration the wel- 
fare of the child; and I know of no other law affecting tht 
Board's power to discharge in this case. 



To the 

Massachusetts 
District Police. 

1907 
November 14. 



Manufacturing Establishment — Employment of ]\Iinor^ 
OR Women — Textile Goods — Knitting. 

A manufacturing establishment in which goods are made by the process of knittini 
is an estabhshment "engaged in the manufacture of textile goods," withii 
the meaning of R. L., c. 106, § 27, as amended by St. 1907, c. 267, pro^idin; 
that "No person and no agent or officer of a person or corporation engagec 
in the manufacture of textile goods shall employ any minor under eighteei 
years of age or any woman, before six o'clock in the morning or after si; 
o'clock in the evening." 

You require my opinion as to whether or not a manufacturing 
establishment in which goods are made by the process of knit- 
ting is to be considered as a textile factory, as referred to ii 
chapter 267 of the Acts of 1907. 

You do not set forth the nature of the "goods" manufac- 
tured, but I assume that such goods in the raw material an 
textile materials, such as wool, flax, silk, cotton or hemp, anc 
that my opinion is desired as to whether or not the process b} 
which such materials are converted into manufactured goodj 
serves to distinguish such goods when completed from textih 
fabrics. 

St. 1907, c. 267, amends R. L., c. 106, § 27, so as to read a^ 
follows : — 



No person, and no agent or officer of a person or corporation engaget 
in the manufacture of textile goods, sliall employ any minor under eighteei 
j^ears of age, or an\ woman, before six o'clock in the morning or afte; 
six o'clock in the evening. Whoever violates the provisions of this sectioi 



DANA MALONE, ATTORNEY-GENERAL. 127 

shall be punished by a fine of not less than twenty nor more than fifty 
dollars for each offence. 

I The word "textile" as an adjective is defined to be "of or 

I pertaining to weaving. Woven, or capable of being woven; 

' 'ormed b\^ weaving: as, textile fabrics; textile materials, such as 
.vool, flax, silk, cotton." The term "textile fabrics," which 

I nay be regarded as synonymous with the words "textile 
^oods," as used in the statute above quoted, has been defined 
:o include those fabrics woven, as carpets, or capable of being 

, voven or formed by weaving, and the noun "textile" to be a 
abric which is woven or may be w^oven, — a fabric made by 

[ veaving. See Wood v. Allen, 111 la. 97, 100. Such appears to 
)e the generally accepted definition. 

I am of opinion that the process of knitting is to be con- 
lidered as a form of weaving, if th6 material used is a textile 
naterial. So the word is defined as meaning, "To w'eave by 
coping or knotting a continuous thread; form by w^orking up 
.•am or thread with knitting-needles into a fabric held together 
)y a series of knots or inter-loopings; as to knit stockings. 
^ence — To form as if by knotting or weaving; put together; 
. ." Thus it has been held under the Constitution of Loui- 
.iana, which exempted capital, machinery and other property 
■mployed in the manufacture of textile fabrics, that a manu- 
actory of fish lines, ropes and other hempen articles was an 
'stablishment employed in the manufacture of textile fabrics, 
md the court said: "Such articles as fish lines and ropes can 
>nly be made by being woven from raw materials, and are 
hemselves textil efabrics." See Cohn v. Parker, 41 La. Ann. 
194; Neiv Orleans v. Arthurs, 36 La. Ann. 98. 

Although the statute is a penal one, and must be strictly con- 
trued, it is nevertheless my opinion that, since knitting may 
airly be considered as a form of weaving, and since the product 
f made from textile materials may be a textile fabric, and so 
textile goods," an establishment where the process of knitting 
•^ employed for the manufacture of such goods must be held to 
ome within the terms of the statute. 



128 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
Adjutant 
General. 
1907 
November 15. 



Veteran in the Service of the Commonwealth — Retire- 
ment — Compensation. 

Under St. 1907, c. 458, § 1, which provides that "a veteran of the civil war in the 
service of the Commonwealth, if incapacitated for active duty, shall be re- 
tired from active service ... at one-half the rate of compensation paid 
to him when in active service ..." a veteran so retired is not entitled 
to receive compensation based upon the estimated cash value of benefits 
in the nature of living expenses, occupancy of a dwelling house free from 
rent, and like privileges, in addition to the fixed salary paid to him from the 
treasury of the Commonwealth. 

I am requested by you to define the meaning of Acts of 1907, 
c. 458, § 1, which provides that, — 

A veteran of the civil war in the service of the Commonwealth, if 
incapacitated for active duty, shall be retired from active service, with 
the consent of the governor, at one half the rate of compensation paid 
to him when in active service, to be paid out of the treasury of the 
Commonwealth, — 



as to whether or not a veteran eligible under the provisions of 
this statute for retirement, who has been receiving benefits in 
the nature of living expenses, occupancy of a dwelling house 
free from rent, and like privileges, in addition to the salary paid 
to him from the treasury of the Commonwealth, is entitled to 
be retired at one-half such salary plus one-half the cash value of 
whatever benefit he may have been receiving at the time of his 
application. 

R. L., c. 6, § 58, provides that, — 

Salaries payable from the treasury shall, unless otherwise provided, be 
paid on the fu-st of each month and shall be in full for all services rendered 
to the Commonwealth by the person to whom they are paid, — 

and this section in itself, in my opinion is decisive of the ques- 
tion now under consideration. 

House rent, living expenses and like advantages which certain 
employees of the Commonwealth may enjoy are given to such 
employees not as salary which they have a right to demand, but 
as privileges which the nature or place of their duties requires 
the Commonwealth to grant to them to secure the highest 



DANA M ALONE, ATTORNEY-GENERAL. 129 

egree of efficiency. Such privileges may at any time be dis- 
mtinued, and the employee required to provide both his own 
ving expenses and his own house, should such a course be 
)ssible without injuring the efficiency of the employee or of 
ly other employee who may occupy the same position. 
It is, moreover, most unlikely that the Legislature intended 
i reduce such items as living expenses, house rent and the like 
■ a monetary value, and to include such value in the term 
compensation," without providing some means other than the 
aims of the employee himself for determining the exact cash 
[uivalent of such privileges. It must follow, I think, that the 
ord "compensation" is to be limited to salaries, the exact 
aount of which is determined by law, and may always be 
leedily ascertained by the Governor and Council, and does not 
tend to benefits or privileges received by an employee, which 
ay not only vary in their character, but in their value, as the 
ice of necessities of living rises or falls. 



[ViL Service — Exemption — Clerk in the Office of 
State Forester — Governor and Council — Approval 
OF Employment. 

ider St. 1904, c. 409, § 4, which authorizes the State Forester to hire such as- 
sistants as he may need in the performance of his duties, and to fix their 
salaries, "subject to the approval of the Governor and Council," such ap- 
proval is not equivalent to confirmation by the Executive Council within 
the meaning of R. L., c. 19, § 9, which exempts from the operation of the 
civil service law and rules "officers . . . whose appointment is subject to 
confirmation by the Executive Council." 

Your letter of October 30 seeks my opinion upon the ciuestion to the civii 
lether or not the position of clerk in the office of the State nTission. 
)rester is within the classified civil service. No vembe r is. 

St. 1904, c. 409, § 4, which relates to the State Forester, 
far as it is applicable to the present question, is as follows: — 

The state forester is hereby empowered, subject to the approval of the 
1 vernor and council, to hire such assistants as he maj'^ need in the per- 
'■ rmance of his duties, and to fix their salaries. 



130 OPINIONS OF THE ATTORNEY-GENERAL. 

Your communication then proceeds as follows : — 

The question is, whether the language of section 4 of chapter 409 of th 
Acts of 1904, "subject to the approval of governor and council," has th 
same legal meaning as the language in section 9 of chapter 19 of the Re 
vised Laws, exempting from civil service classification officers, "whos 
appointment is subject to confirmation bj^ the executive council." 

Persons exempt from the classified civil service are stated b, 
R. L., c. 19, § 9, to be in part, "judicial officers and officer 
elected by the people or by a city council, or whose appoint 
ment is subject to confirmation by the executive council or cit 
council of any city." The expression used in the above statute 
"subject to confirmation by the executive council," is inartificif 
and inexact, since there appears to be no case under the statute 
of the Commonw^ealth where an appointment is confirmed b 
the Council. I am, however, aware that the word "confirms 
tion" is now very generally used in connection with the func 
tion of the Council, which, under the Constitution and unde 
numerous statutes, is to advise with the Executive upon th 
matter of appointments, and to consent to such appointment 
when made. The Constitution of Massachusetts, in referrin 
to the powers of the Executive Council, speaks as follows (par 
2, c. 2, § 1, art. 9): "All judicial officers, the solicitor-genera 
and coroners shall be nominated and Appointed by the governo 
by and with the advice and consent of the council; and ever; 
such nomination shall be made by the governor, and made a 
least seven days prior to such appointment." It is obviousl; 
to this important power and dut}^ of the Council that R. L. 
c. 19, § 9, has reference. 

I am of opinion that the approval of the employment aiK 
compensation of clerks in the several departments of the Com 
monwealth is not an exercise of this function, even as designate( 
in R. L., c. 19, § 9, and is rather an approval by the Council 
acting with the Executive, of a scheme for proposed appoint 
ments and expenditures, than a confirmation of the particula 
appointment to be made. In the present instance the approva 
of the Governor and Council is an approval of such plans as an 



DANA MALONE, ATTORNEY-GENERAL. 131 

ontemplated by the State Forester and such expenditures as 

nay result therefrom, and not a confirmation of the particular 

I )ersons to be appointed to clerkships by such officer. 

1 Assuming that no other valid ground for objection exists, 

' herefore, I must advise you that in my opinion a clerk in the 

.ffice of the State Forester is not exempt from the civil service 

aw or rules, and must be held to fall within the classified civil 

ervice. 

Trust Compaxy — Branch Office — City or Town. 

it. 1902, c. 355, § 2, providing that the Board of Commissioners of Savings Banks 
might authorize any trust company to maintain "a branch office in the city 
or town in which its main office is located," does not permit the authorization 
of more than one branch office in such city or town. 

You ask mv opinion as to the right of trust companies to To the Bank 

' ^ Coiiimis3ioner. 

Qaintain more than one branch office under chapter 355 of the j^o^g^^^jJer 29 
^cts of 1902. This act reads as follows: — 

Section 1. No trust company shall liereafter maintain a branch office 
xcept as hereinafter provided. 

Section 2. The board of commissioners of savings banks may au- 
horize in writing snj' trust company to maintain a branch office in the 
ity or town in which its main office is located, for the sole purpose of 
eceiving deposits, paying checlcs and transacting a safe deposit business. 

Section 3. This act shall take effect upon its passage. 

I find that the matter was suggested to the Legislature by the 
savings Bank Commissioners in their report of Jan. 13, 1902, 
n which occurs the following: — 

Another matter on which legislation may be required arises in the fact 
hat within a few days one trust company has established, at some dls- 
ance from its main offices, an office for the receipt of deposits and payment 
)f checks, — a course which does not meet the approval of this Board, and 
or which the Board claims there is no legal authority, and which is con- 
rar>' to the policy of the Commonwealth as evidenced in its banking laws. 

I am further informed by you that the matter of authorizing 
nore than one branch office was called to the attention of the 
legislature of 1907, but no action was taken thereon. 



132 



OPINIONS OF THE ATTORNEY-GENERAL. 



From the facts so presented to me, and from a consideration 
of the statute in question, I am of opinion that the Legislature 
contemplated the authorization of a single branch office only, and 
that the act does not authorize a trust company to maintain 
more than one branch office. I understand that the Worcester 
Trust Company now has three branch offices, which have 
been authorized by the Savings Bank Commissioners. Under 
these circumstances, it seems to me proper that you should call 
the situation to the attention of the Legislature in your annual 
report, although, as I have stated, it is my opinion that it was 
not the intention of the Legislature to permit the authorization 
of more than a single branch office. 



Insane Person — Property in Possession of Officers of 
Institutions for Insane — Disposition — Cities and 
Towns — Commonwealth — Guardian — Public Admin- 
istrator. 

The receipt of money belonging to public charges supported in institutions for the 
insane or in private families under the supervision of the State Board of 
Insanity, by such Board or by the ofHcers of such institutions, for safe keep- 
ing because such public charges are not competent to care for it, is not author- 
ized by any provision of law. 

Money so received may not legally be deposited in a bank or trust company, with 
other funds, to the account of any State Board or institution for the insane. 

Such money may not be applied by the Commonwealth to the payment of the 
expense of supporting any such public charge, during his lifetime, without 
the appointment of a guardian; it may, however, be received in payment 
for such support, upon an order by the insane person entitled thereto, given 
after his discharge from custody as unrecovered, although even in this case 
it is ad\'isable that a guardian should be appointed. 

Money left in the possession of the treasurers of the several State institutions 
for the insane by patients who were supported prior to Jan. 1, 1904, as town 
charges, and who died before that date, should be paid to the overseers of 
the poor of the places to which such patients were chargeable, if claimed by 
them on account of charges for the support of such patients; or, if no such 
claim is made, should be paid to the public administrator of the county in 
which the institution is situated. Money so retained which belonged to 
deceased patients who were supported as State charges may be covered 
into the treasury of the Commonwealth. 

BoardT o'f * " ^ ou Fcqucst my opinion with reference to the care and 

^ i907_ ' disposition of money belonging to public charges supported in 

institutions or in the care of private families under the super- 



DANA MALONE, ATTORNEY-GENERAL. 133 

vision of the State Board of Insanity, and passing into the 
Dossession of the officers of such institutions or of such State 
Board for safe keeping, because such pubhc charges are not 
competent to care for it. Your specific questions I will answer 
n order : — 

1. May such money be legally deposited in a bank or trust 
company on the same account as other funds of the institution? 

; No. There is no provision of law authorizing the officers of 

! !uch institution or Board to receive such money. The practice 

s apparently one adopted wholly for the benefit of the patient, 

vithout legal authority; and funds should consequently be held, 

f at all, in trust for the beneficiary, and not mingled with other 

I unds. 

2. May it be legally deposited in a bank or trust company on 
I separate account? 

If there is no guardian, and the person in charge of the 
noney is of the opinion that the bank or trust company is a 
lafe depository, it may be deposited, but only as an act of kind- 
less to the patient; there is no legal authority therefor. 

3. May it be claimed by the State in payment for support of 
iuch public charge, without the appointment of a guardian? If 
0, by what method? 

No; not prior to the death of the insane person. Although 
\. L., c. 87, §§ 78, 79, jjrovide for the payment of the charges 
or the support of insane persons by such persons if of sufficient 
ibility, it would not be proper for the Commonwealth or for 
my institution to appropriate the money of an insane person 
or this purpose. A guardian should be appointed, to protect 
he interest of the patient. 

4. May it be taken by the State in payment of his support 
)n his order, given after his discharge as unrecovered from 
■ustody as an insane person? 

Yes; after a patient is discharged from the hospital he may 
)e treated and dealt with as an ordinary person of sound mind, 
rrespective of whether or not he has been discharged as "un- 
ecovered." It would seem, however, that money should not be 
eceived by the State, even on a discharged person's order. 



134 OPINIONS OF THE ATTORNEY-GENERAL. 

without the appointment of a guardian, if the superintendent 
of the institution or other person receiving the money is of 
opinion that the discharged person is unable to look after his 
affairs with reasonable prudence. 

5. The treasurers of the State insane hospitals and asylums 
have in their possession money left by patients w'ho w-ere sup- 
ported prior to Jan. 1, 1904, as town charges, and who died 
previous to that date. . . . You ask what disposition should be 
made of this money. Must it be returned to the towns or can 
it be covered into the State treasury? 

By the provisions of R. L., c. 87, § 37, the overseers of the 
poor of the place to w'hich the deceased was actually chargeable 
are entitled to take possession of all his real and personal 
property. Consequently, such sums should be paid to the 
overseers of the poor of the places to wdiich the patients were 
respectively chargeable, if the said overseers desire to be reim- 
bursed for the expenses incurred for the pauper. If there are 
no such charges for expenses as aforesaid, and if the person in 
charge of the institution, or the Board, has no knowledge of any 
husband, widow or heir of the deceased who should be notified, 
the money, if less than twenty dollars in all, should be delivered 
to a public administrator for the county in wdiich the institution 
is. See R. L., c. 138, § 18, and 1 Op. Atty.-Gen. 536. If 
the amount exceeds twenty dollars, and the overseers of the 
poor of the city or town make no claim upon it, the public 
administrator of the county in which the institution is situated 
should be notified of the facts. See R. L., c. 138, § 2. If the 
public administrator neglects or declines to act, the district 
attorney of the district in which the institution is situated 
should be notified. See R. L., c. 138, § 17. 

6. The treasurers also have $772.47 wdiich belonged to de- 
ceased patients who w^ere always supported as State charges. Is 
it legal for this Board to receive that money, under the provi- 
sions of section 9, chapter 87, and section 27, chapter 81, of 
the Revised Laws, and how shall it proceed to do so? 

Yes. Section 9 of chapter 87 of the Revised Laws provides, 
in part: — 



DANA MALONE, ATTORNEY-GENERAL. 135 

The board shall have the same powers relative to tlie state poor who 
,re inmates of the institutions under its supervision and to their property 
s are vested in towns and overseers of the poor relative to paupers sup- 
lorted and relieved by towns. 

Section 37 of chapter 81 provides that: — 

Upon the death of a pauper who at his decease is actualh' chargeable 
a place within this commonwealth, the overseers of the poor thereof 
aay take possession of all his real and personal property. 

These provisions obviously give the State Board of Insanity 
)Ower to take the property of such deceased patients as have 
)een supported as State charges, for the purpose of reimbursing 
he Commonwealth for the sums expended for their support. 
Che money so obtained should be covered into the treasury of 
he Commonwealth. 

7. The treasurers of the several institutions mentioned also 
lave savings bank books which belonged to patients now de- 
jeased, who were supported during commitment as State 
charges, and these deposits have been unclaimed for more than 
ive years. Can the State recover from these deposits the 
charges for the support of these patients; or, if these unclaimed 
deposits should be paid to the State Treasurer, under the provi- 
dons of section 55, chapter 113 of the Revised Laws, is there 
my method by which the hospitals can be reimbursed for the 
support of said patients? 

The Board has the same right to receive the money on de- 
posit in a savings bank and apply the same to the indebtedness 
:)f the patient to the Commonwealth for his support as it has to 
take and apply the money on hand with the treasurers of the 
institutions under the provisions quoted in the preceding answer. 
R. L., c. 113, § 55, does not apply to any deposits made in 
savings banks other than those made by authority of the pro- 
bate court, court of insolvency or other court. 



136 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
State Board 
of Health. 

1907 
December 9. 



Public Records — Letters and Reports in Custody of 
State Board of Health. 

Under the provisions of R. L., c. 35, § 5, that "The words 'public records' shall 
. . . mean any written or printed book or paper ... in or on which 
any entry has been made or is required to be made by law, or which 
any officer or employee of the Commonwealth . . . has received or is 
required to receive for filing," reports and letters of complaint which are the 
result of investigation made by the State Board of Health under its general 
authority to make sanitary investigation and inquiry, which are in the cus- 
tody of the State Board of Health, are not public records, and therefore are 
not open to public inspection. 

I am asked by the State Board of Health whether certain 
reports and letters of complaint are public records, within the 
meaning of sections 5 and 17 of chapter 35 of the Revised Laws, 
which provide as follows: — 

Section 5. In construing the provisfdns of this chapter and other 
statutes, the words "public records" shall, unless a contrary intention 
clearly appears, mean any written or printed book or paper, any map 
or plan of the Commonwealth or of any county, city or town which is 
the property thereof and in or on which any entry has been made or is 
required to be made by law, or which any officer or employee of the 
Commonwealth or of a count}^, city or town has received or is required 
to receive for filing, and any book, paper, record or copy mentioned in the 
.six following sections. The word "record" shall, in this chapter, mean 
any written or printed book, paper, map or plan. 

Section 17. Every person who has the custody'' of any public records 
shall, at reasonable times, permit them to be -inspected and examined by 
any person, under his supervision, and shall furnish copies thereof on the 
pajTnent of a reasonable fee. In cities and towns such inspection and 
furnishing of copies may be regulated by ordinance or by-law. 

You say that the Board, under its general authority to make 
sanitary investigations and inquiries, began on March 1, 1905, 
a systematic examination of premises where milk is produced 
for public sale, employing a skilled veterinarian, who up to the 
present time has examined more than 8,300 dairies; that for 
convenience and the sake of uniformity the conditions observed 
at each place are reported to the Board on blank forms, and in 
case the conditions noted are incompatible with the production 
of a sanitary milk supply, the secretary of the Board calls the 
attention of the proprietor thereto, and makes suggestions with 



DANA MALONE, ATTORNEY-GENERAL. 137 

he request that they be adopted. You say that the publication 

if a list of the farmers whose premises have been found to" 

aerit criticism would not be for the public good, but that an 

ijustice would be done to those farmers who have adopted 

he suggestions offered and have continued to keep their cows 

nd premises in proper sanitary condition. 

These reports and letters of complaint about which you speak 

re not incorporated into and are not a necessary part of the 

;cord which you are required by law to keep. If they were, it 

ould be your duty, upon request, to furnish them for inspec- 

on and examination, and to furnish copies of the same. Such 

?ing the case, and such papers not forming a part of the record 

' the work done in your office, and not being of such a charac- 

r that you are required by law to receive them for filing, but 

?ing obtained and preserved by you for your own convenience 

I the proper administration of your office, you are not obliged 

' t exhibit them to any person who may ask to see them. 

Similar opinions have been rendered to various departments 

{ my predecessors, and I see no reason for departing from the 

lie already laid down by them. 



\.UPER Law — Contagious Diseases — Quarantine — Tem- 
porary Aid to Unsettled Paupers — Cities and Towns 
— Board of Health — Overseers of the Poor. 

the family of an unsettled person suffering from contagious disease dangerous 
to the public health, but not quarantined, is aided for the reason that such 
family are unable to maintain themselves, and are, therefore, a charge to 
the city or town where they are domiciled, such aid should be rendered by 
the overseers of the poor under the provisions of R. L., c. 81, § 21, the tem- 
porary aid law, so called, and subject to the restrictions therein contained. 

. the board of health of such city or town expends money for the support of the 
family of a person infected with a contagious disease, and therefore quarantined 
with his family, such expense is incurred for the preservation of the public 
health, and cannot be recovered either from the city or town where such per- 
sons are settled, or from the Commonwealth if such persons have no settlement. 

1 neither of the above cases does aid so rendered pauperize the persons aided. 

Vou seek my opinion upon certain facts which are stated as to the Super- 

f I intendent of 

1 lows : State Adult 

i laborer, thirty years old, is suffering from tuberculosis. He ^^j^^^^ i7 
iij been earning $9 a week, and has no money saved. His 



138 OPINIONS OF THE ATTORNEY-GENERAL. 

attending physician and the local board of health are notified. 
He has a wife and four children without means of support. 
Neither his wife nor his children are sick. 

Upon these facts you submit the following specific ques- 
tions: — 

Under the statutes, should the board of health provide for the sick 
person only, and the overseers of the poor provide for the other members 
of the family who are not sick? 

If the overseers of the poor so provide, is the aid rendered by them to 
the persons not sick hmited as to amount by the terms of the temporarj^ 
aid law, if the persons so aided have no legal settlement, and reimburse- 
ment is asked from the Commonwealth? 

Does the aid so rendered by the overseers of the poor pauperize the 
family? 

Should the board of health provide not only for the sick person, but 
also for the other members of the family who are not sick? 

Is the aid so furnished by the board of health to the persons not sick 
limited as to amount by the terms of the temporary aid law if the persons 
so aided have no legal settlement, and reimbursement is asked from the 
Commonwealth, or is such aid controlled only by the words "suitable" 
as to character and "reasonable" as to expense? 

The statutes which are material in the premises are St. 1907, 
c. 386, amending St. 1902, c. 213, § 1, and the temporary aid 
statute, so called, R. L., c. 81, § 21. 

St. 1902, c. 213, § 1, as amended, reads as follows: — 

Reasonable expenses incurred by the board of health of a city or town 
or by the Commonwealth in making the provision required by law for 
persons infected with smallpox or other disease dangerous to the public 
liealth shall be paid by such person or his parents if he or they be able 
to paj^, otherwise by the city or town in which he has a legal settlement, 
upon the approval of the bill by the board of health of such city or town 
or by the state board of charity; and such settlement shall be determined 
by the overseers of the poor, and by the state board of charity in cases 
cared for by the Commonwealth. If the person has no settlement, such 
expense shall be paid by the Commonwealth, upon the approval of bills 
therefor by the state board of charity. 

Section 2 as amended provides : — 



DANA MALONE, ATTORNEY-GENERAL. 139 

No person for whose care and maintenance a city or town or the Com- 
lonwealth has incurred expense in consequence of smallpox, scarlet 
!ver, diphtheria, tuberculosis, dog bite requiring anti-rabic treatment, 
r other disease dangerous to the public health shall be deemed to be a 
auper by reason of such expenditure. 

R. L., c. 81, § 21, so far as it is material to the present ques- 
on, provides : — 

A city or town may furnish aid to poor persons found therein, having 
) lawful settlements within the Commonwealth, if the overseers of the 
)or consider it for the pubhc interest; but, except in cases under the 
ovisions of section fourteen of chapter eighty-five, not for a greater 
nount than two dollars a week for each family during the months of 
I 'ay to September, inclusive, or three dollars a week during the other 
j onths; and the overseers shall in every case give immediate notice in 
"iting to the state board of charity, which shall examine the case and if it 
rects a discontinuance of such aid, shall remove such persons to the 
ate hospital or to any state or place where they belong, if their neces- 
;ies or the public interest requires it, and the superintendent of said 
jspital shall receive the persons removed thereto as if they were sent 
ere in accordance with the provisions of section seven of chapter eighty- 
's. 

This statute was amended by St. 1903, c. 355, but such 
Qendment does not aflPect the present question. 
The first question raised by the inquiries above quoted is 
lether or not the board of health of a city or town, if aid is 
! rnished to persons other than the person infected with small- 
•X or other disease dangerous to the public health, may charge 
!ch expenses to or collect them from the Commonwealth in 
ses of unsettled persons. 

I am of opinion that under the provisions of St. 1907, c, 386, 
1, the board of health of a city or town is not authorized to 
' arge to the Commonwealth any expenditures made to the 
i mily of a person infected with a contagious disease, such aid 
Hng necessary only when the family of the person aftected is 
itlated or quarantined. This appears to be the conclusion 
uched by the court in the case of Haverhill v. Marlborough, 
7 Mass. 150, which was a suit brought by the city of Haver- 



140 OPINIONS OF THE ATTORNEY-GENERAL. 

hill to recover the expenses incurred by such city in consequencel 
of the illness from smallpox of two persons whose settlement! 
was in Marlborough. The case was tried without a jury, upon 
the pleadings and an agreed statement of fact, in the lower 
court, which disallowed certain items charged by the city of 
Haverhill against the city of Marlborough. After passing upon 
certain of the claims which were allowed in the court below and 
sustaining the decision there rendered, the court says (p. 155): 

The other classes of expenses were for services of policemen stationed 
to enforce the quarantine of the house, and for sicpplies for other persons 
not ill, furnished because they were also quarantined in the same building. 
All these expenses were disallowed by the lower court, and we think 
righth\ They were not incurred for the persons infected with smallpox, 
but for the preservation of the public health. 

This decision would seem to be decisive upon the first ques- 
tion, and to show, at least in the case of settled persons, that 
the expenses for which recovery i^ allowed must be strictly 
limited to those incurred for or in behalf of the person actually 
afflicted with a contagious disease. I see no reason to distin- 
guish between those expenses which one city or town may re- 
cover from another city or town in the case of settled paupers, 
and those which a city or town may recover from the Common-i 
wealth in the case of unsettled paupers. It was the evident 
purpose of the statute to allow a reimbursement for the same 
expenses in both cases. It follows, therefore, that if the board 
of health expends money for the support or maintenance of the' 
family of a person infected with a contagious disease who were 
quarantined with such person, such expenses must be treated as 
having been incurred for the preservation of the public health, 
and cannot be recovered either from a city or town where the 
sick person is settled, or from the Commonwealth in case such 
person has no settlement. 

If, however, the family of a person suffering from such dis- 
ease but not quarantined are aided for the reason that such 
family are unable to care for and maintain themselves, and are, 
therefore, a charge upon the city or town where they are 



DANA MALONE, ATTORNEY-GENERAL. 141 

omiciled the aid rendered should, in my opinion, be rendered 
y the overseers of the poor, under R. L., c. 81, § 21, the tem- 
orary aid law, so called, and subject to the restrictions there 
5tablished, as would be the case where such family had become 
oor and unable to support themselves, by reason of the death 
' injury of the parent whose work it was to provide for them. 
With respect to the effect of aid rendered under either of 
lese statutes in cases of contagious diseases dangerous to the 
iblic health, I am of opinion that such expenditures as are 
ade by the board of health, whether in behalf of the person 
flicted or of his family, do not pauperize any of the persons 
ho receive such aid. Where the aid is rendered by the over- 
ers of the poor, the question is more difficult; but in that case 
30, in my opinion, the aid furnished, if it may properly be said 
at the expense incurred was in consequence of contagious 
sease dangerous to the public health, does not pauperize the 
•rsons aided. This view is confirmed by the fact that the 
ovision of St. 1907, c. 386, § 2, is broad enough in terms to 
elude not only aid furnished by the local board of health for 
e purpose of preserving the public health, but also aid fur- 
shed by the overseers of the poor, and required by the 
'verty of the family of the person afflicted with such disease. 



:teran in the Service of the Commonw^ealth — Retire- 
ment — Compensation — Salary. 

1 St. 1907, c. 458, § 1, providing that "a veteran of the civil war in the serv-ice 
of the commonwealth, if incapacitated for active duty, shall be retired from 
active serv-ice, with the consent of the governor, at one-half the rate of com- 
pensation paid to him when in active ser\ace, to be paid out of the treasury 
of the commonwealth," the word "compensation" is to be limited to salaries 
the exact amount of which is determined by law, and may not include li\ang 
expenses or other like advantages, in addition to such salary. 

(n answer to Your Excellency's letter, enclosing a communi- xothe 
c ion from the superintendent of the Medfield Insane Asvlum, i908 ' 

January 20. 

1 regard to the pension case of an employee of said institution, 

I eply as follows : — 



142 OPINIONS OF THE ATTORNEY-GENERAL. 

This question depends upon the meaning of section 1 of 
chapter 458 of the Acts of 1907, which provides that: — 

A veteran of the civil war in the service of the commonwealth, if in- 
capacitated for active duty, shall be retired from active service, with the 
consent of the governor, at one-half the rate of compensation paid to 
him when in active service, to be paid out of the treasury of tlie common- 
wealth. 

In the case submitted for my consideration, the veteran was 
paid a salary of $1,500 a year, and in addition received his board 
and lodging; and he now claims to be entitled to be retired at 
one-half such salary plus one-half the cash value of the board 
and lodging he was receiving at the time of his application. 

R. L., c. 6, § 58, provides that: — 

Salaries payable from the treasury sliall, unless otherwise pro\dded, be 
paid on the first of each month and shall be in full for all services rendered 
to the commonwealth by the person to whom thej^ are paid. 

This section itself, it seems to me, is decisive of the question 
now under consideration. The living expenses and like advan- 
tages which certain employees of the Commonwealth may enjoy 
are given to them not as salary, but as privileges which the 
nature or place of their duties require the Commonwealth to 
grant to them to secure the highest degree of efficiency. SuchI 
privileges may at any time be discontinued and the employee^ 
required to defray his own living expenses, should such a course 
be possible without injuring the efficiency of the employee or of 
any employee who may occupy the same position. It is not 
probable that the Legislature intended to reduce such items as 
living expenses to a monetary value without providing some 
means other than the claims of the employee himself for deter- 
mining the exact value of such privileges; and it must follow, I 
think, that the word "compensation" is to be limited to salaries, 
the exact amount of which is determined by law and may 
always be speedily ascertained by the Governor and Council. 



DANA MALONE, ATTORNEY-GENERAL. 143 



'axation — Stkeet Railway Corporation — Receiver — 
Returns to Local Assessors — Liability for Tax. 

t. 1906, c. 463, Part III., § 133, requiring a street railway corporation to make 
a return to the board of assessors of every city and town of the amount of 
gross receipts for the j^ear ending on the preceding 30th of September, and 
of the length of trade operated, requires a street railway company to make 
such return, notwithstanding such company has gone into the hands of a 
receiver, and its franchises and property have been sold prior to September 
30, under the provisions of St. 1906, c. 463, Part III., § 144, to another cor- 
poration, organized for the purpose of owning and operating such road; and 
the tax pro\'ided for by section 134 of Part III. of such statute may be assessed 
upon it and may be collected from the purchasing company. 

You have requested my opinion upon certain facts growing to the Tax 
' it of the sale of the property and franchises of the South i908 

j f t^ J ^ January 27. 

I [iddlesex Street Railway Company to the Middlesex & Boston 

:reet Railway Company. You state that the South Middle- 
X Street Railway Company went into the hands of a receiver, 
id that its property and franchises were sold by the receiver 

July, 1907; that the Middlesex & Boston Street Railway 
ompany was organized to own and operate said road, and that 
e former company did not, on Sept. 30, 1907, own or operate 
ly track. 

Your questions are, first, whether the South Middlesex Street 
ailway Company is required to make a return to the local 
sessors for the year ending Sept. 30, 1907, of the length of 
ack operated by it in public ways and places, and of its gross 
ceipts, in accordance with the provisions of St. 1906, c. 463, 
irt IIL, § 133; and, second, whether this company is liable 

taxation under the provisions of section 134 of this statute, 
• d, if so, whether the tax may be collected from the purchasing 
< mpany. 

I am of opinion that the original company is required to make 
i return in accordance with the provisions of section 133 of the 
utute cited, and is liable to taxation under section 134 thereof. 

The statute requires a return of the amount of the gross re- 
( pts for the year ending on the preceding thirtieth day of 
^ptember, and of the length of track operated. It is not neces- 
S"y that the company making the return should be operating 



144 OPINIONS OF THE ATTORNEY-GENERAL. 

the road on the thirtieth day of September. The statute re- 
quires a statement of the gross receipts for the year ending at 
that time. UnHke the statute providing for the corporate fran- 
chise tax (St. 1906, c. 463, Part III., § 125), it does not require 
that the length of track operated be taken at any particular 
time. There is no reason why the original company should not 
make the return required by statute. 

Furthermore, there is no reason why it should not be liable 
for the tax. This tax is not based upon the value of the fran- 
chise at the time of assessment (see Commonwealth v. Lancaster 
Savings Bank, 123 Mass. 493), but is a payment for the use of 
the streets and highways. Such a tax may be laid on a cor- 
poration in the hands of a receiver as well as a property tax. j 
City National Bank v. Charles Baker Company, 180 Mass. 40. 

If the tax is not laid on the original company, it cannot be 
laid at all. It is a tax imposed in lieu of payment for the care 
and repair of streets and highways. Springfield v. Springfield 
Street Raihvay, 182 Mass. 41, 45; Boston v. Union Freight Rail- 
road Co., 181 Mass. 205; McDonald v. Union Freight Railroad 
Co., 190 Mass. 123. It is in lieu of payment for the care and 
repair of streets and highways for the year covered by the gross 
receipts returned. Since it is based on gross receipts per mile, 
the cities and towns in which the railway is operated will receive 
nothing in lieu of payment for care alid repairs for the period 
during which the road was operated by the original company, 
unless a tax is assessed upon such company. Clearly, the Legis- 
lature did not intend that the cities and towns within which a 
street railway was operated should be required to bear the bur- 
den of caring for and repairing streets and highways merely 
because the franchises and property of the railway company 
were sold during the tax year. 

Though the return must be made by the original company, 
and the tax assessed upon it, the tax may, in my opinion, be 
collected from the purchasing company. I assume that the 
franchises and property of the company were purchased unden 
authority of St. 1906, c. 463, Part III., § 144, which provides; 
that the purchaser shall hold and possess the railway, franchises.' 



DANA MALONE, ATTORNEY-GENERAL. 145 

nd property "subject to the same duties and liabilities as the 
riginal street railway company;" but it provides that no action 
lall be wrought against such purchasers "to enforce any lia- 
ility incurred by said original company, except debts and lia- 
ilities owing from said original company to any city or town 
ithin which the railway is operated, and taxes and assessments 
ir which said original company is liable under the statutes 
'lating to street railways, which shall be assumed and paid by 
lid new company." 

The liability for the commutation tax imposed by the sections 
)ove cited upon the original company is, in my opinion, such a 
ibility as the purchasing company is required to assume, and 

such a liability incurred by the original company as may be 

e ground for an action against the new^ company. 



^UPER Law — State Pauper — Aid rendered in Place 
OF Settlement of Wife — City or Town — Reim- 
bursement BY Commonwealth — Notice. 

here a town seeks reimbursement under the provision of R. L., c. 85, § 16, that 
"if a state pauper has a wife who is also a pauper hav-ing a legal settlement 
in the commonwealth, he shall be supported by the place where his wife has 
her settlement, and the commonwealth upon a written notice to the state 
board of charity within sixty days after aid is first given to him shall reim- 
burse such place," such town must show that notice was given strictly in 
accordance with the terms of the provision for reimbursement; and a town 
is not entitled to be reimbursed for expenses incurred for a period of sixty 
daj^s prior to the date of notice, when more than sixty days have elapsed since 
aid was first rendered. 

My opinion is requested by you with respect to a claim made to the Supei 
1 the overseers of the poor of the town of Easton, under the state Aduil 
i lowing circumstances : — iocs 

^ February 14. 

Un Aug. 12, 1907, the town of Braintree notified the State 

J'ard of Charity that an unsettled male pauper was receiving 
luper relief; and on Aug. 16, 1907, Braintree notified the town 
c Easton that the former was aiding the family, and claimed 
t It the wife of the pauper and his children had settlements in 
i ston. These settlements apparently are not denied by the 



146 OPIXIONS OF THE ATTORXET-GEXER.U.. 

town of Easton. Some time subsequent to the latter date the 
State Board notified the overseers of the poor of Braintree thai 
it considered the case in question closed, for the reason that the 
wife had a settlement in Easton, and that if any claim is made 
upwn the Commonwealth it should come from that place. Or 
Dec. 3. 1907, the town of Easton notified the State Board 
making a claim for the man's share of the aid given, to whicl: 
the State Board repHed that the notice was too late, not cominc 
within sixtA* days after aid was first rendered to the pauper ii 
question in accordance with the pro\'i5ions of section 16 o 
chapter So of the Revised Laws. The town of Easton contend 
that it is entitled to reimbursement for the period of sixty day 
prior to its notice, irrespective of the time which has elapses 
subsequent to the rendering of the first aid. 
R. L., c. S5. § 16, provides that: — 

If a state pauper has a wife who is also a pauper having a legal se::.r 
ment in this commonwealth, he shall be supported by the place wher- 
his wife has her settlement; but the commonwealth upon written DOtb' 
to the state board of charity within sixty days after aid is first givai U 
him, shall reimburse such place the cost of such support based upon th» 
expense of supporting him had he been committed to the state hosiatal 

In my opinion, the contention of the State Board of Charitj 
must be sustained. I think the words of the statute are den 
and unambiguous, to the effect that the Commonwealth shal 
only reimburse cities and towns upon written notice within sixtj 
days after aid is first given. I find nothing in the history o 
this section which tends to put any other interpretation upoi 
the words used. 



D-VXA ^LAXOXE, ATTORNEY-GENERAL. 147 



• suranxe — ix^-estmext of fuxds — secured loaxs — 

Mortgages. 

der the proviaons of St. 1907, c. 576, § 37, that the capital of any domestic 
lEisuranee company other than Ufe, and three-fourths of the reserve of any 
domestic stock or mutual life insurance company, shall be invested as therein 
prescribed, a domestic life insurance company may invest its fiinds in loans 
secured by assessable stock of any trust company or bank; or in loans se- 
cured by stock, bonds and other collateral, whether or not such collat-eral 
is designated in St. 1907, c. 576. § 37. clauses 1 to 5. inclusive; or in loans 
upon mortgages of real estate to an amount exceeding 60 per cent, of the fair 
market value of the property mortgaged at the time of such loan. 

My opinion is requested by you upon the following ques- To the 

Insurance 
1 ns: ConuniaaoE 



.. Whether or not it is lawful for a domestic life insurance company to 
3 est any of its funds in loans secured by assessable stock of any trust 
« Qpany or bank as collateral. 

I. Whether or not it is lawful for such a company to invest any of its 
i ds in loans secured by stocks, bonds or other coUateral not designat-ed 
i 5ub-di^-isions 1 to 5, inclusive, of section 37 of chapter 576 of the Acts 
(1907. 

5. Whether or not it is lawful for such a company to invest any of its 
f ds in loans upon mortgages of real estate to an amount exceeding 60 
1 cent, of the fair market value of the ijroperty at the time of such loan. 

.n my opinion, all of these inquiries must be answered in the 
£ rmative. 
^t. 1907, c. 576, § 37. pro\"ides: — 

Che capital of any domestic insurance company other than life, and 
1 3e fourths of the reser\-e of any domestic stock or mutual life insm^ance 
c ipany . shaU be invested only as f oUows : — 

■ In loans upon improved and unencumbered real property in any 
81 € of the United States, provided that no loan on such real property 
d Q exceed sLxty per cent of the fair market value thereof at the time 
uch loan, . . . 



190S 
February ; 



. In loans secured by coUateral security consisting of any of the above. 

rhe word "above"" here refers to the earlier clauses pro\'iding 
f( investment in United States or State bonds, municipal bonds, 



148 OPINIONS OF THE ATTORNEY-GENERAL. 

school and water district bonds, railroad or street railway bonds 
and notes, 

8. No domestic life insurance company shall invest any of its fund' 
in any unincorporated business or enterprise, nor in the stocks or e\-i- 
dcnce of indebtedness of any corporation, the owners or holders of whici 
stock or evidence of indebtedness may in any event be or become liable 
on account thereof to any assessment except for taxes, nor shall sucl 
life insurance company invest any of its funds in its own stock or in th( 
stock of any other insurance compan5^ No such company shall inves' 
in, acquire or hold directly or indirectly more than ten per cent of th( 
capital stock of any corporation, nor shall more than ten per cent of it 
capital and surplus be invested in the stock of any one corporation. . . 
nor shall any such company'- enter into any agreement to withhold fron 
sale any of its property, but the disposition of its property shall be at al 
times within the control of its board of directors. 

9. Nothing herein shall prevent such company from investing or loaninj 
any funds not required to be invested as provided in sub-divisions om 
to seven, inclusive, of this section in any manner that the directors of sucl 
life insurance companj^ maj'' determine : provided, however, that such fund 
shall not be invested in the purchase of stocks or evidence of indebtednes; 
prohibited by sub-division eight of this section, and provided that n( 
loan of such funds shall be made to an individual or firm unless it i 
secured by collateral security. 

It is clear that the capital and one-fourth of the reserve of ( 
domestic life insurance company is limited only as to invest- 
ments by clauses 8 and 9. The prohibited investment undei 
section 8 means the purchase and ownership by a domestic li!( 
insurance company of stock or evidence of indebtedness of f 
company liable to assessments other than taxes. That prohibi- 
tion does not extend to loans made by a domestic company 
which are limited only by the proviso of clause 9, to the effeci 
that no loan shall be made unless it is secured by collatera 
security. In my opinion, the whole of the capital stock anc 
one-fourth of the reserve of a domestic life insurance compan^ 
may be invested in loans to individuals or firms secured by stool 
of a trust company or bank which is assessable otherwise thar 
for taxes. 

The same reasoning applies to the second question. In m} 
opinion, there is no limitation upon the class or nature of the 



DANA MALONE, ATTORNEY-GENERAL, 149 

illateral security required under the above quoted proviso of 

ause 9. Consequently, the whole of the capital and one-fourth 
I? the reserve of such a company may be invested in loans 

•cured by stocks, bonds or other collateral not designated in 

auses 1 to 5, inclusive. 

As to the third inquiry, I do not think that mortgages of 

al estate are controlled by clause 9, and, except as otherwise 
j cpressly provided by clause 4 of this section, a company may 

vest any of its funds in loans upon mortgages of real estate 
such an amount as it sees fit, and is not limited to 60 per 

nt. of the fair market value. 



:CRETARY OF THE COMMONWEALTH — HiSTORY OF UnIT OF 

Military Organization of Massachusetts Volunteers 
— Approval by Proper Veteran Association — Pur- 
chase OF Copies. 

1893, c. 413, § 1, as amended by St. 1899, c. 388, authorizing the purchase by 
the Secretary of the Commonwealth, subject to the restrictions therein pre- 
scribed, of 500 copies of a history of any regiment, battery or other unit of 
military organization of Massachusetts Volunteers, prepared and published 
"under the sanction and authority of its proper veteran association," per- 
mits the purchase of the designated number of copies of such a publication 
sanctioned and approved by certain late ofBcers of the organization appointed 
by the members thereof for the purpose, although no veteran association 
exists in connection with such organization. 

I have your inquiry of February 20 respecting the authority to the 
( certain late officers of the Eighth INIassachusetts Infantry, Secretary. 

I iited States Volunteers, to approve, under the provisions of Fe bruary 25. 
' 1893, c. 413, § 1, the publication of a history of such regi- 

i-nt during the Spanish war, entitled "Twelve Months with 

I I Eighth Massachusetts Infantry in the Service of the United 
•^ites." Section 1 of the statute above cited is as follows: — 

^Vhenever, after the passage of this act, any regiment or battery, or 
Cicr unit of military organization of Massachusetts volunteers, shall 
J blish or shall have prepared for publication a history of such organiza- 
ta, under the sanction and authority of its proper veteran association, 
^ ich history shall be shown to the satisfaction of the governor and 



150 OPINIONS OF THE ATTORNEY-GENERAL. 

council to be, so far as is practicable in such works, faitlifuUy and accu- 
rately prepared and historically correct, to contain matter not previously 
published or accessible to the general historian, to be of sufficient reliability 
and importance to justify the purchase of copies as herein provided for, 
and to contain a complete roster of the organization, corrected to the date 
of publication, the secretary of the commonwealth, with the approval of 
the governor and council, and at a price fixed by them, shall purchase five 
hundred copies of such history. Said history shall be in one volume, and 
the price thereof shall not exceed two dollars for a volume of four hundred 
octavo pages. 

The provisions of the statute above quoted were, by St. 1899, 
c. 388, made applicable to histories of organizations of Massa- 
chusetts volunteers which saw active service in the field during 
the Spanish war. 

The specific inquiry presented by your communication is 
whether or not the certificate of approval which you submitted 
is a sufficient compliance with the provision of St. 1893, c. 413, 
§ 1, requiring that such publication should be under the sanction 
and authority of the proper veteran association of the military 
organization whose history is in question. The undoubted pur- 
pose of such provision was to secure the approval of such 
veteran association, if any, to the publication of any history of 
the organization which it represents. In the present instance it 
is true that there was in existence no regular association of 
veterans of the Spanish war who had served in the Eighth 
Massachusetts Volunteer Infantry; but if, as I assume, the 
members of such regiment who would be eligible to membership 
in a veteran association associated themselves together and duly 
selected a committee to represent them, which committee exam- 
ined the publication and duly sanctioned and authorized the 
same, as appears from the certificate of approval above referred 
to, I am of opinion that the terms of the statute have been 
substantially complied with in the premises, and that the 
Secretary of the Commonwealth is authorized to deal with the 
publication alreadv referred to as directed in St. 1893, c. 413, 
§1. 



fl 



DANA MALONE, ATTORNEY-GENERAL. 151 



ONSTITUTIONAL LaW — APPROPRIATION — PUBLIC PuRPOSE 

— Liability of Commonwealth for Act of Insane 
Person released on Parole. 

he Commonwealth is not liable for any act of or injury caused by an insane per- 
son released from a public asylum on parole, by authority of St. 1905, c. 435, 
§ 1; and an appropriation for the purpose of compensating the widow of a 
member of an unpaid commission in the service of the Commonwealth, who 
was killed by an insane person so released on parole, is not for a public pur- 
pose, and is, therefore, unconstitutional. 

You ask my opinion on the following questions: — cCmmittee^on 

Ways ind 

1. Is the responsibility of the Commonwealth, if any, for injury caused ^'^igos 
;■ an insane person released from a public asylum on parole, such as 
ay constitutionally be recognized by the Legislature through a com- 
•nsatory appropriation. 



March 11. 



Chapter 435 of the Acts of 1905 provides in section 1 that: — 

The superintendent or keeper of any institution, pubhc or private, used 
holly or in part for the care of the insane, may permit any inmate thereof 
mporarily to leave such institution in charge of his guardian, relatives, 
lends or by himself, for a period not exceeding six months, and may 
ceive him when returned by any such guardian, relatives, friends or 
)on his own apphcation within such period, without any further order 
commitment. The expense of such return of a pauper may be paid 
.' the state board of insanity, if, in its opinion, a new commitment would 
herwise be necessary. 



It is therefore clear that an insane person may be released 
om a public asylum on parole. Even if the superintendent 
?ted improperly, no government has ever held itself liable to 
idividuals for the misfeasance, laches or unauthorized exercise 
" power by its officers and agents. In the language of Judge 
tory, "it does not undertake to guarantee to any person the 
delity of any of the officers or agents whom it employs, since 
lat would involve it in all its operations in endless embarass- 
lents and difficulties and losses which would be subversive of 
le public interests." Gibbons v. United States, 8 Wall. 274. 
'herefore, whether the insane person was properly released or 



152 OPINIONS OF THE ATTORNEY-GENERAL. 

not, no liability attached on the part of the Commonwealth. 
If an appropriation of money to be raised by taxation is con- 
templated in a case of this kind, it would be by way of gift, 
and would clearly be an excess of legislative power. 

I am of opinion, therefore, that such appropriation cannot be 
constitutionally made. 

2. Would an appropriation to the widow of a member of an unpaid 
commission be an appropriation for a public purpose? 

The power of the government to affect the individual in his 
private rights of property is confined to purposes and objects 
alone which the government was established to promote, public 
uses and the public service. 

I am informed that the appropriation suggested is to the 
widow of one of the five members of the Commission on Com- 
merce and Industry, appointed pursuant to chapter 104 of the 
Resolves of 1907. This commission had been appointed about 
six months, and had not made its report when Edward Cohen, 
one of the members, was shot in an anteroom of the Executive 
Chamber at the State House. 

The power to give rewards after the event for conspicuous 
public service, if it exists at all, is limited to cases where a man 
has deserved greatly of the Commonwealth by military or civil 
services in which the public advantage 'of recognizing his merit 
should be the strong element, and "the public welfare alone 
must be the ground, as it is the only legal justification for this 
kind of payment." Opinion of Justices, 175 Mass. 602. Can it 
be fairly said that a member of a commission, paid or unpaid, 
who had been in the service of the Commonwealth only for a 
few months, whose report had not been made, has deserved 
greatly of the Commonwealth by conspicuous service which 
would be entitled to a reward by way of gift? It seems to me 
that it cannot be fairly thought that the public good will be 
served by such a grant, and that in such a case the only public 
advantage is such as may be incident and collateral to the 
relief of a private citizen. 



DANA MALONE, ATTORNEY-GENERAL. 153 

I am of opinion that an appropriation to the widow of such 
person is not for a public purpose, and cannot be made under 
le Constitution. 

3. Would an appropriation to the widow of one not in the service of 
le Commonwealth, injured while in a public building, whether or not 
trough the negligence of any servant of the Commonwealth, be an 
)propriation for a public purpose? 

I understand that this question refers to the shooting by an 
isane person of Dennis D. Driscoll, who was not in the employ 
' the Commonwealth, but w^ho was waiting in the anteroom of 
le Executive Chamber wdth Edward Cohen for the purpose of 
terviewing His Excellency the Governor on the question of the 
irdon of a prisoner in the State Prison at Charlestow^n. I am 
opinion that a payment by the Commonwealth, to the widow 
a person shot as aforesaid, of any sum of money merely by 

j ason of his happening to be at the State House on an unoffi- 

' al matter when he received his injury, would not be for a 
iblic purpose within the meaning of the law; and that there is 
) more reason for such payment than there would be if the 
;rson were elsew' here — upon the streets or in any building — 

I hen he was shot, and that such an appropriation would not be 

j r a public purpose. 

3NSTITUTI0NAL LaW — TAXATION — APPROPRIATION OF PUB- 
LIC Funds — Public Purpose — Religious Society, 
School or Institution — Sectarian Control. 

society, school or institution which is under direct ecclesiastical or sectarian 
control, and is designed solely or even principally for the benefit of persons 
of a particular sect or denomination, cannot be held to be maintained for a 
public purpose such as would justify an expenditure of money raised by taxa- 
tion ; and an appropriation for the benefit of such societj^ school or institution 
from the public funds raised by taxation would be unconstitutional. 

I have the honor to acknowledge the receipt of an order to the House 

. 1 of Repre- 

i opted by the Honorable House of Representatives on the senmives. 
1 enty-eighth day of February, 1908, requiring my opinion, April 6 . 
i follows : — 



154 OPINIONS OF THE ATTORNEY-GENERAL. 

Ordered, That the Attorney-General be requested to submit to the 
House of Representatives his opinion in writing upon the following ques- 
tion: Under the Constitution and laws of the Commonwealth, can a 
State, county, city, town, village or other civil division use its property 
or credit, or any money raised by taxation or otherwise, or authorize 
either to be used, for the purpose of founding, maintaining or aiding by 
appropriation or in any other manner any church, religious denomination 
or religious society, or any institution, school, society or undertaking 
which is under sectarian or ecclesiastical control? 

The question is a somewhat broad one, but for the purposes 
of this inquiry I assume that the Honorable House of Repre- 
sentatives in substance desires my opinion on the question 
whether or not public moneys raised by taxation may, under the 
constitutional provisions, be expended by the Commonwealth or 
by any county, city or town thereof for the purpose of founding, 
maintaining or otherwise aiding any church, religious denomina- 
tion or religious society or any institution, school, society or 
undertaking which is under sectarian or ecclesiastical control. 
On this assumption I submit the following conclusions : — 

The right to appropriate public funds for specific purposes 
is no more extensive than the power to levy taxes for such 
specific purposes. The power of taxation has been defined and 
limited by the Constitution of the Commonwealth. Article 
IV. of section I. of chapter I., part second, declares that the 
purposes for which the power of taxation in its various forms 
may be exercised by the Legislature are "for the public service, 
in the necessary defence and support of the government of the 
said commonwealth, and the protection and preservation of the 
subjects thereof." Article XL of section I. of chapter H. re- 
stricts the issuing of moneys from the treasury to purposes of 
"the necessary defence and support of the commonwealth; and 
for the protection and preservation of the inhabitants thereof, 
agreeably to the acts and resolves of the general court." 

In Lowell v. Boston, 111 Mass. 454, 460, it is said that: — 

The power to levy taxes is founded on the right, duty and responsibility 
to maintain and administer all the governmental functions of the State, 
and to provide for the public welfare. To justify any exercise of the 



DANA MALONE, ATTORNEY-GENERAL. 155 

lOwer requires that the expenditure which it is intended to meet shall be 
Dr some public service, or some object which concerns the public welfare. 

And in Mead v. Acton, 139 Mass. 341, 344, the court said: — 

The right to tax is the right to raise money by assessing the citizens 
jr the support of the government and the use of the State. The term 
taxation" imports the raising of money for public use, and excludes 
(le raising of it for private uses. Opinion of the Justices, 186 Mass. 604. 

The question is in each case, therefore, whether or not the 
urpose for which money is to be appropriated and spent is a 
•ubhc purpose, or, in connection with the precise question under 
onsideration, whether or not the estabhshment, maintenance 
r aid of a church, religious denomination or rehgious society 
r of any institution, school, society or undertaking which is 
nder sectarian or ecclesiastical control may be a public purpose 
;hich would justify the appropriation and use of public money. 

With respect to churches and rehgious societies or denomina- 
ions in general, the question is disposed of by a consideration 
f the existing provisions of the Constitution and of the history 
f their enactment. The original provision of the Constitution 
mbodied in the bill of rights (article III.) expressly empowered 
he Legislature to compel the several towns, parishes and other 
lolitical divisions of the Commonwealth to provide for public 
/orship, and failure so to do was in some cases subject even 

indictment. See Commonwealth v. Waterborough, 5 Mass. 
1.57. As a necessary consequence of this duty, the towns and 

parishes of the Commonwealth were authorized to raise money 
<y taxation for the purpose of maintaining and supporting 
public Protestant teachers of piety, religion and morality" 

1 all cases where such provision was not voluntarily made. 
t. 1799, c. 87. And fines and penalties were provided for the 
ailure so to do. It remained for the constitutional amendment 
uly adopted in 1834 to put an end to taxation for the support 
f churches or religious societies. The final words of this 
mending article (article XI. of the articles of amendment) 
re as follows : — 



156 OPINIONS OF THE ATTORNEY-GENERAL. 

and no subordination of any one sect or denomination to another shall 
ever be established by law. 

It is true that the Commonwealth still aids churches or re- 
ligious societies of every sect and denomination by a general 
exemption from taxation of their property (see R. L., c. 12, 
§ 5, cl. 7); but I am constrained to conclude that in respect of 
particular religious societies or churches an appropriation of 
public moneys raised by taxation for their benefit would be un- 
constitutional and void," for the reason that such appropriation 
would not be for a public body, but for an association of in- 
dividuals (see Kingman v. Brockton, 153 Mass. 255), and might 
be objectionable for the reason that it effected a subordination 
of one sect or denomination to another, contrary to the final 
provision of article XI. of the Amendments to the Constitution 
of the Commonwealth hereinbefore referred to. 

In the case of schools, so far as such schools fall within the 
limits of the system of education required to be established and 
maintained by the cities and towns of the Commonwealth the 
rule seems to be equally well established and definite. Article 
XVIII. of the Amendments to the Constitution is as follows: — 

All moneys raised by taxation in the towns and cities for the support 
of public schools, and all moneys which may be appropriated by the state 
for the support of common schools, shall be applied to, and expended in, 
no other schools than those which are conducted according to law, under 
the order and superintendence of the authorities of the town or city in 
which the money is to be expended; and such money shall never be 
appropriated to any religious sect for the maintenance, exclusively, of 
its own school. 

The terms "public schools" and "common schools," as used 
in this amendment, have been repeatedly defined. So in Jenkins 
V. Andover, 103 Mass. 94, 99, the court said: — 

These are the schools to which the eighteenth article appUes, — schools 
which towns are required to maintain, or authorized to maintain, though 
not required to do so, as a part of our system of common education, and 
which are open and free to all the children and youth of the towns in 
which they are situated, who are of proper age or qualifications to attend 



DANA MALONE, ATTORNEY-GENERAL. 157 

lem, or which adjoining towns may unite to support as a part of the 
,me system. . . . This class of schools does not include private schools 
hich are supported and managed by individuals; nor colleges or acade- 
ies organized and maintained under special charters for promoting the 
gher branches of learning, and not specially intended for, nor limited 
', the inhabitants of a particular locahty. 

In the case of all such schools an appropriation of public 
oney to or for the benefit of any religious sect for the mainte- 
ince exclusively of its own school is expressly forbidden. See 
mkins v. Andover, above cited. 

Upon the other hand, it has long been the custom of the 
ommonwealth to aid by grants of land, by immunity from 
xation, and even by direct appropriation of money, the estab- 
;hment and maintenance of colleges, technical schools and 
:her institutions of higher learning. The distinction between 
1 appropriation for public schools and for the institutions of 
I gher learning has been pointed out in Merrick v. Aviherst, 12 
[len, 500, 508, as follows: — 

The phrases "public schools" and "common schools" have acquired 
ider the legislation and practice of this State a well-settled signification, 
tiey are never applied to the higher seminaries of learning, such as in- 
■rporated academies and colleges. These, in a certain broad and com- 
•ehensive sense, are pubhc institutions, because they are controlled by 
■rporations and are usually open to all persons who are willing to comply 
ith the terms of admission and tuition. But the broad line of distinction 
'tween these and the "public or common schools" is, that the latter 
e supported by general taxation, that they are open to all free of expense, 
id that they are under the immediate control and superintendence of 
;ents appointed by the voters of each town and city. That the amend- 
ent was intended to apply only to these schools is manifest, not only 
Dm the terms in which it is expressed, but also from the history of its 
igin and adoption as part of the organic law. 

The assistance granted the higher institutions of learning, 
lerefore, is based upon the proposition that the constitutional 
•Qvision did not apply to them, and that the establishment and 
aintenance of such institutions is a public purpose for which 
le Constitution does not forbid the appropriation of money 



158 OPINIONS OF THE ATTOENEY-GENERAL. 

raised by taxation. Upon the other hand, a school, society or 
institution which is under direct sectarian or ecclesiastical con- 
trol, and was designed solely, or even principally, for the benefit 
of persons of that particular sect or denomination, and for no 
others, could not be deemed to be maintained for a public pur- 
pose which would warrant an appropriation of the public funds. 
Replying to the specific question of the Honorable House of 
Representatives, the principles above described are in my 
opinion equally applicable to any institution, society or under- 
taking for which it is asked that public money be appropriated. 
I apprehend that the question in each case must be whether or 
not the purpose which it is sought to aid is a public purpose, 
and such question is to be determined upon the facts then 
presented. 

Civil Service — Exemption — Officer — Clerk of Chief 

OF Police. 

The clerk of the chief of police of the city of Worcester, who is appointed by such 
chief of police, subject to confirmation by the city council, and whose duties 
are such clerical duties as may be prescribed by such chief of police, is not 
an "officer" within the meaning of R. L., c. 19, § 9, which excepts from the 
operation of the civU service law and rules " and officers . . . whose appoint- 
ment is subject to confirmation by the . . . city council of any city," and 
the appointment of such clerk must be made in accordance with the require- 
ments of such law and rules. 



ciVifservice ^^^ rcqucst my opinion upon certain questions in regard 
Co^.^mis8ion. ^^ ^^^ positiou of clcrk of the chief of police of the city of 
Aprim. Worcester. You advise me that on Feb. 3, 1908, the city 

council of that city passed an ordinance which provides as 

follows : — 

Section 1. In the month of February, nineteen hundred and eight, 
and in the month of January of each alternate year thereafter, the chief 
of police shall appoint a clerk, subject to confirmation by the city council 
as hereinafter provided. 

Section 2. The appointment of clerk of the chief of police, made as 
provided in section one of this ordinance, shall take effect when confirmed 
by the city council of the city of Worcester, and approved by the mayor. 

Section 3. The clcrk of the chief of police shall be under the sole direc- 
tion of, and his duties shall be such as are prescribed by, the chief of police. 



DANA MALONE, ATTORNEY-GENERAL. 159 

No statement is made by you as to the duties prescribed for 
,uch clerk by the chief of police, but I assume that they are 
)rdinary clerical duties. 

You make several inquiries, but in my view of the law a reply 
one of them will, I think, be sufficient to enable you to per- 
orm your duty in the premises. This question is as follows: — 

Is the appointment of a clerk of the chief of police, made under the 
hove ordinance and without due requisition and certification under 
he civil service law and rules, a legal appointment? 

My answer is that such appointment is not a legal appoint- 
nent. The position of clerk of the chief of police is within the 
•ivil service rules, unless it is expressly excepted therefrom. 
The only exception which with any show of reason could be held 
apply to a person holding that position is the exception of 
officers . . . whose appointment is subject to confirmation by 
he . . . city council of any city." R. L., c. 19, § 9. In my 
)pinion, however, a clerk of a chief of police is not an "officer" 
vithin the meaning of the word as here used. 

That there is a distinction between public "office" and public 
'employment" is well settled. Broicn v. Russell, 166 Mass, 14, 
15; Attorney-General v. Drohan, 169 Mass. 534, 535. See, also, 
Opinion of the Justices, 166 Mass. 589. This distinction is 
ecognized in the statutes of this Commonwealth relating to 
•ivil service. R. L., c. 19, §§ 9, 23, 25, 26, 28 and 32. Cf. St. 
.884, c. 320, §§ 2, 14. See, also. Brown v. Russell, swpra; 
Opinion of the Justices, supra. The principal test as to whether 
)r not a position is an office, as distinguished from an employ- 
nent, is whether or not it involves "a delegation of a portion of 
he sovereign power to, and possession of it by, a person filling 
he office." 1 Op. Atty.-Gen. 72. The position in question 
loes not satisfy this requirement. The method of appointment 
md the period of service, whether fixed or otherwise, may prop- 
erly be considered in determining whether or not a position is 
in "office" or an "employment," but are not decisive. "The 
lecisive question is whether the real character and functions of 
he place in question make it an office or an employment in the 



160 OPINIONS OF THE ATTORNEY-GENERAL. 

sense of the law and in view of the distinction thereby estab- 
Hshed." 1 Op. Atty.-Gen. 72, 73. 

The line of distinction between offices and employments is 
clearly not the same as that between positions in the official 
service and in the labor service, under civil service rules. j\Iany 
positions in the official service are not offices within the meaning of 
the word as used in section 9 of chapter 19 of the Revised Laws. 

In my view of the law I am sustained by an opinion of my 
predecessor, from which I have quoted above, in which he 
stated that in his opinion a clerk to the board of overseers of 
the poor of the city of Lawrence, holding a position which called 
merely for clerical service and assistance to the chief clerk, was 
not an "elective officer" within the meaning of the civil service 
law as it then stood. St. 1884, c. 320, § 15. 

The principles which I have stated are equally applicable to 
the position of night janitor of the city hall of Salem. The 
ordinary duties of a night janitor are not such as to constitute 
him an "officer", within the meaning of section 9 of chapter 19 
of the Revised Laws. 

Constitutional Law — Public Funds — Appropriation — 
Public Purpose — Money not directly raised by 
Taxation. 

Since the relief of persons who have suffered los^ by fire, or by other great and 
general calamity, is not a public purpose which will justify the expenditiire 
of public funds, an appropriation of public money for such purpose is uncon- 
stitutional, and it is immaterial that the money sought to be so appropriated 
was not directly raised by taxation, but was received from the sale and rental 
of lands belonging to the Commonwealth. 

Commiuee*on ^ havc the houor to acknowledge the receipt of a communica- 
^"mi ^^^^ from the Senate committee on rules, requesting my opinion 

Aprin4. «gg ^Q ^Y^^ constitutionality of the enclosed bill accompanjing 

the petition of William j\I. Robinson for legislation for the relief 
of the sufferers by the recent fire in Chelsea." The bill sub- 
mitted with such communication is in the form of a resolve, 
and is as follows: — 

Resolved, That there may be expended for the relief of sufferers from 
the recent fire in the city of Chelsea a sum not exceeding one hundred 



DANA MALONE, ATTORNEY-GENERAL. 161 

Dusand dollars, the same to be taken from the CommoDwealth's flats 
provement fund, created by chapter two hundred and thirty-seven of 
3 acts of the j^ear eighteen hundred and seventy-eight, and to be ex- 
ided under the direction of the governor. 

It has long been established in this Commonwealth that 
)ney raised by taxation may be expended only for a public 
rpose. Lowell v. Oliver, 8 Allen, 247, 253; Mead v. Acton, 
9 Mass. 341, 344; Kingman et al., Petitioners, 153 Mass. 566; 
)inion of the Justices, 155 Mass. 598, 601; Opinion of the 
stices, 186 Mass. 603, 605; Opinion of the Justices, 190 Mass. 
1, 613. And it is equally well settled that the relief of per- 
is who have suffered loss by fire or by other great and general 
amity is not in a legal sense a public purpose. So, in the 
ie of Lowell v. Boston, 111 INIass. 454, at page 472, in con- 
ering the constitutionality of St. 1872, c. 364, an act author- 
ug the city of Boston to issue bonds and lend the proceeds on 
] )rtgage to the owners of land, the buildings upon which were 
rned by the great fire of 1872, the court, through Mr. Justice 
ells, said : — 

i As a judicial question the case is not changed by the magnitude of the 
I amity which has created the emergency, nor by the greatness of the 
\ ergency or the extent and importance of the interests to be promoted. 
1 ese are considerations affecting only the propriety and expediency 
< the expenditure as a legislative question. If the expenditm'e is, in its 
1 ;ure, such as will justify taxation under any sta.te of circumstances, 
1 Delongs to the Legislature exclusively to determine whether it shall be 
i :horized in the particular case ; and however slight the emergency, or 
1 .ited or unimportant the interests to be promoted thereby, the court 
1 5 no authority to revise the legislative action. 

On the other hand, if its nature is sucli as not to justify taxation in any 
i 1 all cases in which the Legislature might see fit to give authoritj^ 
t irefor, no stress of circumstances affecting the expediencj^, importance 
( general desirableness of tlie measure, and no concurrence of legislative 
i 1 municipal action, or preponderance of popular favor in am' particular 
( e, will supply the element necessary to bring it within the scope of 
1 islative power. 

The proposed resolve does not, upon its face, disclose or indi- 
(te an expenditure of the sum appropriated thereby for any 



162 OPINIONS OF THE ATTORNEY-GENERAL. 

exclusively public purpose, and I conceive, therefore, that the 
precise inquiry upon which your committee seeks my opinion is 
the question whether or not the fact that the proposed appro- 
priation is to be made from a specific fund created from moneys 
received from the sale or use of the Commonwealth's lands (see 
St. 1878, c. 237) is sufficient to distinguish the present case in 
principle from those already cited, so as to permit an appro- 
priation of public monej's for purposes not strictly public. 

Upon this question I am constrained to advise your com- 
mittee that in my opinion it is immaterial that the proposed 
resolve contemplates an expenditure of money which was not 
raised directly by taxation, but which was received from the ,. 
sale and rental of lands belonging to the Commonwealth. I 

It must, I think, be obvious that money so received is aE 
asset of the Commonwealth and is public money available foi 
public purposes, and that its employment for other than publi( 
purposes must necessarily require sums to replace it which cai 
be raised only by taxation. Upon this point my opinion is con 
firmed by the language of the highest court of the Common 
wealth in considering St. 1904, c. 458, an act which providec 
for the payment of bounties to certain veterans of the civil wai 
(Opinion of the Justices, 186 Mass. 603, 605), which was as 
follows : — 

Section 6 authorizes an issue of bonds of the Commonwealth to provide 
for the pajTnents to be made under the act, and authorizes an appropria- 
tion of money to pay the bonds, out of the sums that shall be received 
from the United States government for expenses incurred by the Common- 
wealtli in connection with the civil war. Under St. 1903, c. 471, these 
sums are to be paid into the treasury of the Commonwealth for the reduc- 
tion of the pubhc debt, and the effect of the statute before us is to take 
from the treasury, for the pajanent of these bounties, money which 
ultimately can be replaced onlj^ by taxation. We are therefore brought 
to the question whether it is in the power of the Legislature to tax the 
people of the Commonwealth to provide money for this purpose. 

Moreover, the question seems also to have been decided m 
Loioell V. Boston, above cited, where, on page 461, the court 
say: — 



DANA MALONE, ATTORNEY-GENERAL. 163 

The incidental advantage to the pubhc or to the State, which results 
cm the promotion of private interests and the prosperity of private 
iterprises or business, does not justify their aid by the use of public 
oney raised by taxation, or for which taxation maj'- become necessary. 

Since the resolve under consideration provides for the expendi- 
I're of money from the public treasury for purposes not neces- 
rily public, which can be ultimately replaced only by taxation, 
am unable to distinguish between the present case and those 
ses which have been discussed; and I must, therefore, advise 
e honorable Senate committee on rules that in my opinion the 
solve as submitted to me is not in conformity with the Consti- 
tion of the Commonwealth. 



)RPORATioN — Foreign Corporation — Laws of District 
OF Columbia. 

1903, c. 437, § 56, which defines a foreign corporation to be any corporation 
organized "under laws other than those of the commonwealth for the purposes 
for which domestic corporations may be organized under the provisions of 
section seven" of such chapter, extends to and includes a corporation chartered 
under the general laws of the District of Columbia. 

You request my opinion upon the followina; question: — xothe 

^ Commissioner 

of Corpora- 
Is the fact that a corporation is organized under the general laws of the ^°m8 
j strict of Columbia a reason sufficient to excuse said corporation from ^^"^ "^ " 
! ng its annual certificate of condition and paying the excise tax as 
1 [uired of foreign corporations b}^ chapter 437 of the Acts of 1903? 

I am of opinion that your question should be answered in the 
igative. A corporation chartered by Congress legislating di- 
I'tly for the District of Columbia is a foreign corporation 
nhin the meaning of St. 1903, c. 437, § 56, which defines the 
tm " foreign " corporation " as including every corporation 
(artered "under law^s other than those of the commonwealth 
I' purposes for which domestic corporations may be organized 
vder the provisions of section seven." See Daly v. National 
J^e Insurance Co., 64 Ind. 1; Layden v. Knights of Pythias, 



164 OPINIONS OF THE ATTORNEY-GENERAL. 

128 N. C. 546. The regulation of such a corporation is not an 
interference with interstate commerce, nor is it an interference 
with the carrying on of governmental functions. 



Civil Service Commission — Certificatiox of Pay Rolls 
OF THE City of Boston — Police Force. 

Members of the police force of the city of Boston are not persons "in the service oi 
employment of the city of Boston," within the meaning of St. 1908, c. 210 
providing in substance that the Civil Service Commission shall certify all 
pay rolls, bills and accounts for salary or compensation of persons in th( 
service or employment of such city. 

Jp ^.Jie . You ask mv opinion as to whether the Police Commissioneii 

Civil bervice ^ i t 

^igos'^^'""' ^^^ members of the police force of the city of Boston are per-| 
Apni^s. g^j^g ajj^ ^j^g service or employment of the city of Boston," 

wuthin the meaning of chapter 210 of the Acts of 1908, in sub 
stance providing for the certification by the Civil Service Com' 
mission of all pay rolls, bills and accounts for salary of persons 
in the service of the city of Boston. 

I am of opinion that they are not. St. 1906, c. 291, § 8 
provides that: — 

All expenses for the maintenance of buildings, the pay of the police 
clerks, stenographers and other emploj^ees, and all incidental expenses 
incurred in the performance of the duties of said commissioner or in th( 
administration of said police, shall be paid by the city of Boston upoD 
the requisition of said police commissioner. 

The Legislature has established a special public officer, ap 
pointed by the Governor, independent of any control or direc 
tion on the part of the city of Boston, as the head of the police 
department of such city. The city has no control over him oi 
the police officers. That statute requires the payment of the 
bills upon the requisition of the Police Commissioner. Undei 
these circumstances, I am of opinion that chapter 210 of the) 
Acts of 1908 does not apply. See Malioncy v. Boston, 171 
Mass. 427. 



DANA MALONE, ATTORNEY-GENERAL. 165 



Ietropolitan Park Commission — Rules and Regulations 
FOR Government of Police Force — Punishment of 
Breach of Regulations by Forfeiture of Pay — 
Transfer — Civil Service — Veteran — Waiver by 
Officer of Benefit of Civil Service Rules. 

le Metropolitan Park Commission under existing provisions of law has authority 
to establish rules for the government of its police force, and under such rules 
to punish a police officer, who has committed an offence, by a forfeiture of 
pay for a period not exceeding thirty days ; or to transfer a poHce officer who 
is a veteran from a reservation or parkway in one city or town to a reserva- 
tion or parkway in another city or town within the jurisdiction of such 
commission. 

le authority of the Metropohtan Park Commission in the premises is not limited 
by St. 1904, c. 314, § 1, which provides that persons holding office or employ- 
ment in the public ser\'ice of the Commonwealth, classified under the civil 
service rules, "shall hold such office or emploj^ment and shall not be removed 
therefrom, lowered in rank or compensation, or suspended, or, without his 
consent, transferred from such office or employment to any other except for 
just cause and for reasons specifically given in writing; or by St. 1905, c. 150, 
§ 1, and R. L., c. 19, § 23, which extends a like protection to veterans in the 
public service of the Commonwealth. 

1 agreement signed by a police officer upon entering the ser\'ice of the Metropolitan 
Park Commission, to the effect that he will obey and be bound by such rules 
and regulations as are or may be from time to time adopted by such com- 
mission, would not constitute a waiver by such officer of any rights under 
the statutes above quoted; and such agreement is material only as evidence 
that at the time of entering the service of such commission the subscriber 
was aware of the rules and regulations then in force. 

In a letter of recent date you state that the Metropolitan to the Metro- 

1 /-I . . . . 1 1 • p politan Park 

irk Commission request my opinion as to the authority or commission. 

le commission in certain matters pertaining to the adminis- May 25 . 

ation of its police force, and you call my attention to a rule 

ily enacted by vote of the commission, and now in force, for 

e government thereof, to the effect that any member of such 

rce may be punished by the Board in its discretion, either by 

primand, by forfeiture of pay for not exceeding thirty days for 

ly one offence, by being reduced in rank, or by dismissal from 

e force on conviction by the commission of any one of a num- 

T of enumerated offences, such as intoxication, any act of 

subordination, neglect of duty, neglect or disobedience of 

ders, any legal offence, immoral conduct, etc. You also have 

lied to my attention the following agreement, which every 



lOG OPINIONS OF THE ATTORNEY-GENERAL. 

police officer upon entering the service of the commission is re- 
quired to sign: — 

In consideration of my employment as a member of the Metropolitan 
Park Police, I agree to obey and be bound by such rules and regulations 
as are or may be from time to time adopted for the govermnent of the 
Police Department of the Metropolitan Park Commission. 

The specific questions to which you request answers, in the 
order in which you ask them, are: — 

1. If the Board finds a police officer guilty of any offence under this 
rule, has it the authority to punish such officer by forfeiture of his pay 
for a period not exceeding thirty days? 

2. Is such a forfeiture a lowering of " compensation" within the meaning 
of St. 1904, c. 314, § 1, or of St. 1905, c. 150, § 1? 

3. If such police officer so found guilty is a veteran within the meaning 
of R. L., c. 19, § 20, has the Board authority to impose upon him, without 
a hearing before the Board of Conciliation and Arbitration, a punishment 
not amounting to a transfer from his office or employment, an abolition 
of his office or a lowering of compensation, within the meaning of said 
chapter 150 of the Acts of 1905? 

4. If the Board transfers a police ofP-cer who is a veteran from a reserva- 
tion or parkway in one town where he has been performing police duty 
to a reservation or parkway in another city or town for service, is such 
transfer a transfer of office or employment within the meaning of said 
act of 1905, so that such officer is entitled to a hearing before said Board 
of Conciliation and Arbitration? 

5. Whether or not the signing of the agreement quoted, by a police 
officer upon entering the service of the commission, has any effect upon 
his legal obUgations to the commission and upon the authority^ of the 
commission over him? 

The answers to the first three questions depend, of course, 
upon the authority of the commission to make rules for the 
administration of its police force, and upon the authority of the 
commission in the enforcement of those rules to punish viola- 
tions of the rules. 

It may be assumed as beyond dispute that the Legislature, in 
giving to the commission its powers, intended to confer upon it 
exclusive and complete authority and control over the reserva- 



DANA MALONE, ATTORNEY-GENERAL. 167 

tions and parkways acquired by it. St. 1893, c. 407, § 4; St. 
1894, c. 288, §§ 1 and 3. 1 Op. Atty.-Gen. 588, 590; 2 Op. 
Atty.-Gen. 303, 366. In furtherance of this object, the com- 
mission is given power to employ a suitable poUce force, and the 
policing of the reservations and parkways obviously, therefore, 
becomes as much a part of the duty of the commission as the 
doing of any other duly authorized act of administration and 
maintenance. The express grant of authority to employ a suit- 
able police force would, however, be somewhat futile if it did 
not carry with it, at least by implication, the authority to enact 
reasonable rules for the effective administration of that police 
force. It obviously follows, also, that the power to enact rules 
and regulations would be a useless power if it were not accom- 
panied by the authority to enforce by reasonable means obedi- 
ence to those rules and regulations. The position of the com- 
mission in these matters is not to be distinguished from the 
position of every public officer in similar matters; and therefore 
the familiar principle is applicable, that public officers have 
not only the powers expressly conferred upon them by law, 
but also by necessary implication such powers as are requisite 
to enable them to discharge the official duties devolved upon 
them. 23 Am. & Eng. Ency. Law. 365. Vose v. Deane, 7 
Mass. 280. 

Moreover, the power of the commission to enforce by reason- 
able measures discipline in its police force results not only from 
the very nature of the authority and responsibility conferred 
upon the commission by law, but also from the nature of the 
oflSce of a police officer. The police officer, in his employment, 
is not acting under a contract, strictly speaking, but he is essen- 
tially a State oflBcer bound to preserve its peace and to execute 
its laws. Philliys v. Boston, 150 Mass. 491. The conditions of 
his employment are, therefore, not fixed by contract, and his 
duties and responsibilities are not to be interpreted by the rules 
governing the interpretation of contracts. He is responsible to 
the superior agency of the government which appoints him, and 
must conform in the performance of his duties to such reason- 
able conditions as such superior agency may prescribe. 



IG8 OPINIONS OF THE ATTORNEY-GENERAL. 

jNIy opinion upon the question of the general authority of the 
commission, therefore, is that the commission has authority to 
establish rules for the government of its police force, and under 
those rules to punish a police officer who has committed an 
offence. This opinion seems to be amply sustained by Malcolm 
V. Boston, 173 Mass. 312. 

Your first question asks whether the commission have author- 
ity in the exercise of this general power to impose as a specific 
penalty forfeiture of pay for a brief period not exceeding thirty 
days. From what has already been said it follows that the 
commission have this authority, unless it has been taken from 
them by statutory modification of their general powers. The 
general powers of the commission have been somewhat qualified 
by the statutory requirements in the cases of persons not 
veterans who are employed under the civil service law. St. 
1904, c. 314, provides: — 

Section 1. Every person holding office or employment in the public 
.service of the commonwealth or in any countj'^, city or town thereof, 
classified under the civil service rules of the commonwealth, shall hold 
such office or employment and shall not be removed therefrom, lowered 
in rank or compensation, or suspended, or, without his consent, trans- 
ferred from such office or employment to any other except for just cause 
and for reasons specifically given in writing. 

Section 2. The person sought to be remqved, suspended, lowered or 
transferred shall be notified of the proposed action and shall be furnished 
wit h a copy of the reasons required to be given by section one, and shall, 
if he so requests in writing, be given a public hearing, and be allowed 
to answer the charges preferred against him either personally or by 
counsel. A copy of such reasons, notice and answer and of the order of 
i-cnioval, suspension or transfer shall be made a matter of public record. 

But the effect of these qualifications is rather a prescription 
as to the method of enforcing the powers already possessed than 
a curtailing of the powers. The statute quoted was amended by 
St. 1905, c. 243, by adding to section 2 the following: — 

provided, hoivever, that nothing contained in this act shall be construed 
to prevent temporary suspension for a period not exceeding thirty days 
made without compliance with the provisions of this act and pending 
further action under this act. 



DANA MALONE, ATTORNEY-GENERAL. 109 

In my opinion there is nothing in these statutes which de- 
prives the commission of the authority which it had under its 
general powers to punish an ojfficer guilty of an offence by a 
forfeiture of his pay for a period not exceeding thirty days, and 
I therefore answer your first question in the affirmative. 

The answer to your second question is embraced in the an- 
swer to the first; but answering it upon the particular point 
raised, as to whether such a forfeiture is a lowering of compen- 
sation within the meaning of the statute cited, I am of opinion 
that it is not. The compensation of an officer is not lowered, 
within the meaning of the statute, unless the rate of compensa- 
tion be lowered. 

The provision in regard to increasing or diminishing tlic pay manifestly 
refers to the salary which has been or may be established, and not to such 
reductions as may occur through fines or forfeitures established to preserve 
and promote the discipline and efficiency of the force. Morton, J., in 
Malcolm v. Boston, 173 Mass. 321. 

Your third question raises the point of the authority of the 
commission over the members of its police force who are 
veterans within the meaning of R. L., c. 19, § 20, and are there- 
fore entitled by law to certain special privileges. The authority 
of the commission over the veterans in its police force does not 
differ from its authority over other members of the force, except 
so far as that authority may have been qualified by statute. 
The only modification of the general authority of the commis- 
sion as above stated, so far as it applies to veterans, is in St. 
1905, c. 1.50, amending R. L., c. 19, § 23, so as to read as 
follows: — 

No veteran who holds an office or employment in the public service 
of tb.e commonwealth, or of any city or town therein, shall be removed 
or suspended, or shall, without his consent, be transferred from, such 
office or employment, nor shall his office be abohshed, nor shall he be 
lowered in rank or compensation, except after a full hearing of which he 
shall have at least seventy-two hours' written notice, with a statement 
of the reasons for the contemplated removal, suspension, transfer, lowering 
in rank or compensation, or abolition. The hearing shall be before the 
state board of conciliation and arbitration, if the veteran is a state em- 



170 OPINIONS OF THE ATTORNEY-GENERAL. 

ployee, or before the maj^or of the city or selectmen of the town of wliich 
he is an employee, and the veteran shall have the right to be present and 
to be represented by counsel. Such removal, suspension or transfer, 
lowering in rank or compensation, or such aboUtion of an office, shall 
be made only upon a written order stating fully and specifically the cause 
or causes therefor, and signed by said board, mayor or selectmen, after 
a hearing as aforesaid. 

In my opinion, none of the provisions of the act cited curtail 
the authority which the commission had under its general 
powers to impose upon a poUce officer, who is a veteran and has 
been found guilty of an offence, a punishment not amounting to 
a transfer of his office or employment, an abolition of his office 
or a lowering of his rank or compensation without a hearing 
before the State Board of Conciliation and Arbitration. I 
therefore answer your third question in the affirmative. 

The fourth question I answ^er in the negative. The transfer 
of a police officer who is a veteran, from a reservation or park- 
way in one tow^n to a reservation or parkway in another city or 
town within the jurisdiction of the commission, assuming that 
his service is that of police duty in each place, is not a transfer 
of office or employment within the meaning of St. 1905, c. 150, 
above cited. His office under the transfer is still that of a 
police officer, and his employment is still that of police duty; 
the officer himself has been transferred from one locality to an- 
other, but there cannot be said to have been a transfer either of 
office or employment, within the meaning of the act, the obvi- 
ous purpose of which is to prevent changes of grade and 
classification. 

In reply to your inquiry as to the effect upon the legal obliga- 
tions of a police officer to the commission, and upon the author- 
ity of the commission over him, resulting from the signing of the 
agreement quoted upon entering the service of the commission, 
my opinion is that the signing of the agreement has little if any 
effect upon the legal obligations of the officer to the commission, 
and no legal effect upon the authority of the commission over 
him. Even if the agreement was made by the officer for w^hat 
can actually be proved to be a good consideration, it is hard to 



DANA MALONE, ATTORNEY-GENERAL. 171 

see any practical value to the commission in the technical civil 
right thus acquired in addition to the greater rights which it 
already possessed under its general authority, and it is clear 
that it does not affect the authority of the commission over the 
DfRcer. 

By signing such an agreement the officer cannot, in my opin- 
ion, be held to have waived any rights under the civil service 
law. The civil service law applicable to the case is to be re- 
garded as a general law, and an agreement to waive the provi- 
sions of a general law of this nature is generally held to be 
invalid as opposed to public policy. See Washington National 
Bank v. Williams, 188 Mass. 103. 

The only practical value of the signing of such an agreement 
is that evidence is furnished that the officer, at the time of 
SQtering the service of the commission, knew of the rules estab- 
lished by it, which evidence might become material in any 
hearing upon the case. 



Insurance — Officer or Director of Insurance Company 
— Investment of Funds. 

By R. L., c. 118, § 25, relating to domestic insurance companies, it is provided that 
"no officer of the company, and no member of a committee thereof, charged 
with the duty of investing its funds, shall borrow the same or be directly or 
indirectly liable for, or on account of, loans thereof to others;" and a director 
of such an insurance company who is also a member of the finance committee 
thereof violates such provision by renewing a mortgage loan or by giving a 
new loan to trustees of a real estate trust of which such director was both a 
trustee and a shareholder, the legal title to the trust estate being in the 
trustees and the equitable title thereto in such persons as are for the time 
being shareholders. 

You ask my opinion whether a director of a domestic insur- to the 
ance company, who was also a member of the finance committee commissioner. 
and "charged with the duty of investing its funds," has violated June 3 . 
the provisions of R. L., c. 118, § 25, by (a) renewing a mortgage 
loan to certain trustees of a real estate trust of which the di- 
rector was both a trustee and a shareholder; and (6) making a 
new loan to another real estate trust of which the director was 
also a trustee and a shareholder. 



OPINIONS OF THE ATTORNEY-GENERAL. 

The dates of these occurrences are subsequent to the Revised 
Laws, but prior to the going into effect of St. 1907, c. 576, and 
consequently the question is one to be determined by the lan- 
guage of the Revised Laws. This section provides in part that : — 

No officer of the company and no member of a committee thereof 
charged with the duty of investing its funds sliall borrow the same 
or be directly or indirectly liable for or on account of loans thereof to 
others; nor shall any director or other officer take or receive to his own 
use any fee, brokerage, commission, gift or other consideration for or on 
account of a loan made by or on behalf of such company. 

Copies of the declarations of trust have been submitted to me. 
In each declaration of trust the following provision appears: — 

The trustees shall have no power to bind the shareholders personally. 
In every written contract they may make, reference shall be made to this 
declaration of trust. The person or corporation contracting with the 
trustees shall look to the funds and property of the trust for the payment 
under such contract, or for the payment of any debt, mortgage, judgment 
or decree, or of any money that may otherwise become due or payable by 
reason of the failure on the part of said trustees to perform such contract 
in whole or in part, and neither the trustees nor the shareholders, present 
or future, shall be personally liable therefor; 

and each declaration of trust provides that the term "share 
holder" shall mean holder of record of a receipt or a certificate 
from the trustees thereunder. It is clear, I think, that the 
whole legal title to the trust estate is in the trustees, and that 
the whole equitable title is continuously in such persons as are 
for the time being shareholders under the declaration of trust. 
See Howe v. Morse, 174 Mass. 491, 503. 

Copies of the mortgage notes have also been submitted to me, 
from which it appears that the trustees under the declarations 
of trust, to which reference was therein expressly made, did "as 
trustees thereunder, but not individually, promise to pay" the 
amount of the mortgage to the insurance company. 

As was pointed out in the case of Bowditch v. Neiv England 
Life Imurance Co., 141 Mass. 292, 295, referred to in your letter 
to me, the statute under discussion — ^1 



DANA MALONE, ATTORNEY-GENERAL. 173 

is designed to forloid officers, who are charged with the dutj'- of investing 
the funds of the corporation, borrowing of themselves, and thus to prevent 
the risk of the funds being invested bjr them, under the promptings of 
self-interest, upon insufficient securitj^ In other words, the purpose is to 
protect the corporation and the policy holders from the dishonesty or 
self-interest of the officers. It is intended as a shield to the corporation. 

Adopting this exposition of the purpose of the statute, I am 
of opinion that the director mentioned by 3'ou, charged with the 
duty of investing the funds of a domestic insurance company, 
has violated the provisions above quoted, inasmuch as he, as 
trustee, and while an owner of shares in the trust, has borrowed 
money of the corporation, and thus created a debt for which the 
property of the trust is liable to be taken on execution. Al- 
though the director is not apparently directly or indirectly per- 
sonally liable for or on account of the loan, yet, as owner of 
both the legal title and a portion of the equitable title of the 
property which is directly liable, I conceive that he is brought 
within the rule laid down in the case above cited, because the 
loan might be made "under the promptings of self-interest, 
upon insufficient security." 

Subsequent to the doing of the acts referred to by you, the 
law was changed by St. 1907, c. 576, § 26, which now provides 
in part that: — 

All investments and deposits of the funds of the company shall be made 
in its corporate name, and no director or other officer thereof, and no 
member of a committee having any authority in the investment or dis- 
position of its funds, shall accept, or be the beneficiary of, either directly 
or remotely, any fee, brokerage, commission, gift or other consideration 
for or on account of any loan, deposit, purchase, sale, payment or exchange 
made by or in behalf of such companj'', or be pecuniarilj'^ interested in any 
such purchase, sale or loan, either as borrower, principal, co-principal, 
agent or beneficiary except that if a policy holder he shall be entitled to all 
the benefits accruing under the terms of his contract. 

In my opinion, the acts of the director above set forth would 
be clearly in violation of the law as it stands to-dav. 



174 OPINIONS OF THE ATTORNEY-GENERAL. 

State Highway — Defect or Want of Repair — Liability 
OF Commonwealth — Construction or Repair — Use 
OF Liquid Asphalt — Damage. 

By the provision of R. L., c. 4t, § 13, that "the commonwealth shall be liable for 
injuries sustained by persons while traveling on state highways in the manner 
and subject to the limitations, conditions and restrictions provided in sections 
eighteen, twenty and twenty-one of chapter fifty-one, except that notice of 
the injury shall be given to a member of the commission or to its secretary," 
no liability is imposed upon the Commonwealth for damages to the person 
or property of a traveler upon a State highway other than for damages caused 
by reason of a defect or a want of repair or of a sufficient railing in or upon 
such highway. To constitute such defect or want of repair there must be 
something in the condition of the highway, either by reason of defective 
construction or want of repair or in the nature of an obstruction, which is 
dangerous to the safety of the person or property of the traveler; and where 
the property of such traveler upon a State highway is damaged by splashes 
of liquid asphalt used in connection with the construction or repair of such 
highway, the statute above cited affords no remedy. 

>ias'J^chu3etts The Massachusctts Highway Commission has referred to me 
commTssion. foF siich action as I may deem proper certain claims for damage 
June 16. to the Wearing apparel and vehicles of travelers upon State 

highways, occasioned by preparations used in the repair and 
maintenance of such highways. Of these claims, the case pre- 
sented in the communication from one Leon Samuels appears 
to be typical. The facts as stated by the claimant are: — 

It appears that while going through a certain portion of the road which 
was under repair, a part which was tarred over had proper signs theieon, 
denoting that it was not open for travel; another part, however, which 
was completely covered with dirt and gravel, had no such signs, thereby 
indicating that it was open for travel. In crossing said supposedly com- 
pleted part in her automobile, she [the wife of the claimant] was splashed 
with tar which apparently had not hardened into condition to make the 
road fit for traffic, and as a result her automobile coat, Panama hat, pair 
of gloves and chiffon veil were completely ruined, and occasioned a loss 
of SIOO. 

Other claims are made by H. C. Poore and G. F. Saumsiegle, 
respectively, for damages occasioned by liquid asphalt used in sur- 
facing a State highway. In both of these cases the report of the 
division engineer states that proper signs and warnings were dis- 
played, calling attention to the condition of the road at the time. 



DANA MALONE, ATTORNEY-GENERAL. 175 

The liability of the commission is fixed by R. L., c. 47, § 13, 
which is as follows : — 

The commonwealth shall be hable for injuries sustained by persons 
while traveUng on state highways, in the manner and subject to the 
limitations, conditions and restrictions provided in sections eighteen, 
twenty and twentj^-one of chapter fifty-one, except that notice of the 
injiuy shall be given to a member of the commission or to its secretar}'. 
The commonwealth shaU not be liable for an injury which may be sus- 
tained upon the sidewalk of a state highway or during the construction 
of such liighway. The amount wliich may be recovered for anj such 
injury shall not exceed one-fifth of one per cent of the state valuation 
last preceding the commencement of the action of the city or town in 
which the injurj^ was received, nor shall it exceed four thousand dollars. 

Section 18 of chapter 51 of the Revised Laws, above referred 
to, is as follows: — 

If a person sustains bodily injury or damage in his property by reason 
of a defect or a want of repair or a want of a sufficient raihng in or upon 
a way, causeway or bridge, and such injmy or damage might have been 
prevented, or such defect or want of repah or want of railing might have 
been remedied by reasonable care and diligence on the part of the county, 
city, town or person by law obliged to repair the same, he may, if such 
county, cit}', to^\^l or person had or, by the exercise of proper care and 
dihgence, might have had reasonable notice of the defect or want of repair 
or want of a sufficient railing, recover damages therefor from such county, 
city, to'W7i or person; but he shall not recover from a county, city or 
town more than one-fifth of one per cent of its state valuation last pre- 
ceding the commencement of the action nor more than four thousand 
dollars, and no action therefor shall be maintained by a person whose 
carriage and the load thereon exceeds the weight of six tons. 

It has been held that there is no liability upon a city or town 
for damages to the person or property of a traveler upon its 
ways, except such as is fixed and imposed by statute. Monies 
V. Lyn7i, 121 Mass. 442. And such damage must be caused by 
reason of "a defect or a want of repair or a want of a sufficient 
raihng in or upon a way, causeway or bridge." The question 
to be determined is, therefore, whether the application of liquid 
asphalt or tar in connection with the construction of a highway 



176 OPINIONS OF THE ATTORNEY-GENERAL. 

in and of itself constitutes a defect or a want of repair in the 
highway, within the meaning of the statute. 

It is, I think, obvious that the application of the substance 
above mentioned to the highway cannot constitute "a want of 
repair," if, as must be assumed, it is a proper material to be 
used in the repair and maintenance of the surface of a highway, 
and is properly applied without negligence upon the part of .the 
contractor or of the agents of the Commonwealth. 

The statutes have nowhere defined what is to be considered 
as a "defect." 

The duty of a town is to make the highway safe and con- 
venient for travelers. Raymond v. Lowell, 6 Cush. 524; Horfon 
V. Ipsiuich, 12 Cush. 488. In the present case no question of 
the safety of the traveler arises, since the injury is analogous to 
that occasioned by the spattering of mud or water from the 
moist surface of the highway, which latter does not constitute 
a defect. See Stone v. Ilubbardsion, 100 Mass. 49, 56; McAidei 
V. Boston, 113 Mass. 503; Williams v. Lawrence, 113 Mass 
506; McGowan v. Boston, 170 INIass. 384. Taking all the cases 
together, I am of opinion that, in order to constitute a defect 
within the meaning of the statute, it is necessary that there 
should be something in the condition of the highway, either h} 
reason of defective construction or want of repair or in th( 
nature of an obstruction, which is dangerous to the safety of th( 
traveler, and not merely damaging to the appearance of hi; 
attire or to the conveyance in which he travels. Here the roac 
was properly posted, so as to draw the attention of the travelei 
to its condition of recent repair and to put him upon his guarc 
in passing across it, and the only result of the application o 
the material by which damage was occasioned would have been 
had these warnings been heeded, the inconvenience of seeking 
another route of travel. For mere inconvenience, occasione( 
even by a defect, there appears to be no remedy given under thi 
statutes. Brailey v. Southhorough, 6 Cush. 141; Holman v 
Townsend, 13 Met. 297, 299; Smith v. Dedham, 8 Cush. 522. 

I am further of the opinion that even if the method of th, 
application of the liquid asphalt to the way in question was im 



DANA MALONE, ATTORNEY-GENERAL. 177 

])roper or negligent npon the part of the contractor or agents of 
the Commonwealth, such negligence would not make the exist- 
ence of liquid asphalt upon the surface of the way a defect, 
within the meaning of the statute. For mere negligence of 
cities or towns, not constituting defects in the way, the statute 
in question affords no remedy. See Billings v. Worcester, 102 
Mass. 329, 333. 

I am therefore of the opinion that the claims in these in- 
stances have no basis in law, and that the Commonwealth is 
not liable therefor. 



Labor — Employment of Children — Child under Four- 
teen Years of Age — Certificate of Ability to Read 
AND Write — Factory or Workshop. 

Under the provisions of R. L., c. 106, § 28, as amended bj^ St. 1905, c. 267, § 1, 
that "no child under the age of fourteen years and no child who is over four- 
teen and under sixteen years of age who does not have a certificate as required 
by the following four sections certifying to the child's ability to read at sight 
and to write legibly simple sentences in the English language shall be employed 
in any factory, workshop or mercantile establishment," no school committee 
or superintendent of schools or other person is authorized to issue to a child 
under fourteen years of age the certificate above referred to, and such child 
may not at any time be employed in a factory or workshop. 

Your communication of recent date requests my opinion xo the 
upon certain questions relative to the interpretation to be given Massachusetts 
to R. L., c. lOG, § 28, as amended by St. 1905, c. 267, § 1. D'«*ftP°'-^- 

The statute above referred to, as amended by St. 1905, c. 267, 

§ 1, is as follows: — 

No child under the age of fourteen years and no child who is over 
fourteen and under sixteen years of age who does not have a certificate 
' as required by the following four sections certifying to the child's ability 
to read at sight and to wTite legibly simple sentences in the English 
language shall be employed in any factory, workshop or mercantile es- 
tablishment. No child under the age of fourteen years shall be employed 
at work performed for wages or other compensation, to whomsoever pay- 
able, during the hours when the public schools of the city or town in which 
he resides are in session, or be employed at work before six o'clock in the 
morning or after seven o'clock in the evening. 



178 OPINIONS OF THE ATTORNEY-GENERAL. 

A modification of St. 1905, c. 267, has, however, been made 
by St. 1906, c. 284, § 2, which is as follows: — 

Minors to whom said chapter two hundred and sixty-seven applies 
shall be permitted to work on Saturdays between the hours of six in the 
moniing and seven in the evening, in mercantile establisliments. 

The specific questions upon which my opinion is required 
are: — 

Can d cMld under fourteen years of age, and who has a certificate from 
the authorized school authorities certifying the child's ability to read at 
sight and to wiitc logibly simple sentences in the English language, be 
legally employed in any factoiy, workshop or mercantile establishment 
during the hours when the public schools of the city or town in which he 
resides are not in session? 

If a child under fourteen years of age can read at sight and write legibly 
simple sentences in the English language, can the school committee, 
superintendent of schools, or person authorized by the school committee, 
issue him a certificate as provided in section 32, chapter 106, Re\ised 
Laws? 

Since both questions refer to the possession by a child of a^ 
certificate issued by the school authorities certifying to the 
ability of the child to read and write, it may simplify the issues 
if I state at the outset that in my opinion the provisions of the 
statutes quoted and the subsequent sections of chapter 106 of 
the Revised Laws, relative to the certificate mentioned, have no 
application whatever to a child under fourteen years of age. 

It therefore follows that the fact stated in your first question, 
that the child under fourteen years has a certificate of ability to 
read and write, can have no bearing upon the question as to the 
legality of the employment of the child in a factory, workshop 
or mercantile establishment during the hours when the public 
schools of the city or town in which he resides are not in sessionj 

By the provisions of R. L., c. 106, § 28, as amended by St.1 
1905, c. 267, § 1, quoted above, the employment of any childl 
under fourteen years of age in any factory, workshop or mer- 
cantile establishment, was absolutely prohibited. 

The employment of a child over fourteen years of age, but 



DANA MALONE, ATTORNEY-GENERAL. 179 

inder sixteen, was prohibited, unless that child had attained to 

prescribed degree of education, and could obtain a certificate 
rom the proper authorities certifying to that fact. 

The obvious intent of the statute was to preserve the original 
(revision of the statute preventing the employment of a child 
inder fourteen years of age, under any circumstances, in a work- 
hop, factory or mercantile establishment; and, further, to pro- 
ide additional opportunity for the education of children by 
reating a second class of children, consisting of those more 
han fourteen but less than sixteen years of age, who might not 
>e employed in the establishments specified until they were able 
pass a prescribed educational test. 

Construing the provisions of the statute, therefore, in accord- 
nce with the clear purpose of the act, it is obvious that the 
)rovisions relative to the educational qualification refer only to 
he second class mentioned, — the children between fourteen 
ind sixteen years of age. 

Construing the provisions of the statute according to the well- 
ecognized rule of statutory construction, — that a limiting 
:lause is to be confined in its application to the last antecedent 
mless the subject-matter of the act requires a different con- 
truction, — the same conclusion is reached. 

The modification of St. 1905, c. 267, by St. 1906, c. 284, § 2, 
quoted above, permits the employment of the minors to whom 
5t. 1905, c. 267, applies, on Saturdays between the hours of 6 in 
;he morning and 7 in the evening in mercantile establishments, 
md leaves unchanged the law as to employment in factories and 
vorkshops. 

Upon your first question, therefore, my opinion is that a child 
mder fourteen years of age may not be employed in a factory 
)r workshop at any time, and may be employed in a mercantile 
establishment only on Saturdays between the hours of 6 in the 
norning and 7 in the evening. 

Upon your second question my opinion is, that no school 
.'ommittee, superintendent of schools or other person is author- 
zed by the statutes to issue to a child under fourteen years of 
ige a certificate under the provisions of R. L., c. 106, § 32. 



July 9. 



180 OPINIONS OF THE ATTORNEY-GENERAL, 

Proprietary or Patent Medicines — Label — Fractional 
Part of Original Package — Prosecution — Public 
Notice — State Board of Health. 

St. 1906, c. 386, as amended by St. 1907, c. 259, providing in section 1 that "upon 
every package, bottle or other receptacle holding any proprietary or patent 
medicine . . . shall be marked or inscribed a statement on the label of the 
quantity or proportion of each of said substances contained therein," requires 
that the container of fractional parts sold from the original package by pre- 
scription shall be also marked with the prescribed label. 

The provision of St. 1906, c. 386, § 6, as amended by St. 1907, c. 259, that the State 
Board of Health shall not cause the prosecution of persons violating the 
provisions of such act "for the sale at retail or for the gift or exchange of any 
patent or proprietary medicine or food preparation containing any drug or 
preparation the sale of which is prohibited or restricted as aforesaid," until 
after public notice, is not applicable to sales of unlabeled quantities. 

sute Board ^'^^ Fcquest my opinion as to the construction to be given 

°mf'^' to St. 1906, c. 386, as amended by St. 1907, c. 259. Section 1 

of the amended act, so far as it is material upon the questions 

presented, is as follows : — 

Upon every package, bottle or other receptacle holding any proprietary 
or patent medicine, or any proprietary or patent food preparation, which 
contains alcohol, morphine, codeine, opium, heroin, chloroform, cannabis 
indica, chloral hydrate, or acetanilid, or any derivative or preparation 
of any such substances, shall be marked or inscribed a statement on the 
label of the quantity or proportion of each of said substances contained 
therein. The size of type in which the names of the above substances 
shall be printed on the labels as above, shall not be smaller than eight 
point (brevier) caps: provided, that in case the size of the package will 
not permit the use of eight point cap type the size of the type may be 
reduced proportionately. The provisions of section nineteen of chapter 
seventy-five of the Revised Laws, so far as they are consistent herewith,! 
shall apply to the manner and form in which such statements shall bei 
marked or inscribed. 

Section 3 prohibits the sale of any patent or proprietary med- 
icine containing certain substances. 

Section 4 prohibits the sale of certain drugs except under cer- 
tain restrictions. 

Section 5 exempts certain classes from the prohibitions of sec- 
tions 3 and 4. » 



DANA MALONE, ATTORNEY-GENERAL. 181 

Section 6 is as follows : — 

Whoever manufactures, sells or offers for sale any medicine or food 
reparation in violation of the provisions of this act shall be punished 
y a fine of not less than five nor more than one hundred dollars. It 
hall be the duty of the state board of health to cause the prosecution 
f all persons violating the provisions of this act; but no prosecution shall 
e brought for the sale at retail, or for the gift or exchange of any patent 
r proprietary medicine or food preparation containing any drug or 
reparation the sale of which is prohibited or restricted as aforesaid, 
nless the said board has, prior to such sale, gift or exchange, given public 
otice in such trade journals or newspapers as it may select that the 
ift, exchange or sale at retail of the said medicine or food preparation 
■Quld be contrarj^ to law. 

You state that a number of retail druggists have asked 
rhether it is necessary for them, within the meaning of the 
hove statute, to label with the prescribed label fractional parts 
old from the original package by prescription; and they have 
lointed out the practical difficulty in carrying a stock of labels 
dT the very large variety of patent medicines which they are 
bliged to sell. 

It seems to me that the law requires the labeling of the con- 
ainer of fractional parts of the original package. The language 
■f the act is very comprehensive, — " every package, bottle or 
'ther receptacle holding any proprietary or patent medicine." 
-^hese words must be given their ordinary meaning, unless some 
eason appears for giving them a different meaning. If the 
-legislature had intended the act to apply only to original pack- 
ges, it would have been easy so to limit the scope of the act. 
Che words should also be interpreted in such a way as to carry 
tut what appears to have been the intent of the Legislature. 
Che most obvious and natural purpose of the act is the protec- 
ion of all who are to buy the patent and proprietary medicines, 
t cannot have been the intent of the Legislature to protect 
•nly the druggists dealing in these medicines; and yet, if a 
ractional part of the original package is not to be marked, 
he public are no better informed as to the ingredients of 
vhat they are buying than they were before the passage of 



182 OPINIONS OF THE ATTORNEY-GENERAL. 

the act, unless they take pains to ask to be shown the original 
package. 

As to the second point, by section 6 the seUing without label 
of patent or proprietary medicines in any quantity is made a 
distinct offence with a fixed penalty, and the offender is liable 
to a penalty upon the commission of the offence. The clause o) 
the statute referring to prosecution after public notice refers tc 
the sales prohibited and restricted by sections 3 and 4, which dc 
not include and are not to be construed as connected with the 
sale of an unlabeled quantity. 



Public Officer — Register of Deeds — Official Bond. 

A bond given by the register of deeds of a county to the county commissioner; 
thereof, and running to such commissioners, does not satisfy the requiremen 
of R. L., c. 22, § 7, that "each register shall give bond to the county for th( 
faithful performance of his official duty, with such sureties and in such mm 
as the commissioners or mayor [in the county of Suffolk] respectively shal 
approve." 

Controller Replying to your letter, in which you ask whether it is im- 

AcSS* perative that a bond of a register of deeds run to the treasurei 

September 20. of thc couuty, or whether a bond given to the county commis- 

sioners is sufficient, I have to inform you that the statute 

applicable to the matter is R. L., c- 22, § 7, which reads as 

follows : — 

Each register of deeds, except in the county of Suffolk, shall be sworn 
before the county commissioners and, in the county of Suffolk, before 
one or more of the aldermen of the city of Boston. Each register shall 
give bond to the county for the faithful performance of his official duty 
Avith such sureties and in such sum as the commissioners or mayor, re- 
spectively, shall approve. 

It is therefore necessary that to comply with the statute the 
bond in question should run to the county of Dukes County, 
and not to either the county commissioners or the county treas- 
urer. I therefore must advise you that all public officials 
should be required to give bonds strictly complying with the 



DANA MALONE. ATTORNEY-GENERAL. 183 

•ovisions of the above statute, and bonds not in statutory 
rm should not be held by the supervising authorities to be 
ifficient or accepted as such. 



i.viNGS Banks — Authorized Investments — Bonds, Cou- 
pon Notes or Other Evidences of Indebtedness of the 
New York, New Haven & Hartford Railroad Com- 
pany. 

mds, coupon notes or other evidences of indebtedness of the New York, New 
Haven &. Hartford Railroad Company, a corporation chartered by the laws 
of this Commonwealth, payable more than twelve months after the date of 
issue and issued prior to the passage of St. 1908, c. 620, in excess of the capital 
stock of such railroad corporation, which do not fall within any of the excep- 
tions set forth in St. 1906, c. 463, part II., § 66, are issued in violation of the 
provision of such section that "a railroad corporation, unless expressly 
authorized by its charter or by special law, shall not issue bonds, coupon 
notes or other evidences of indebtedness payable at periods of more than 
twelve months after the date thereof to an amount which, including the 
amount of all such securities previously issued and outstanding, exceeds in 
the whole the amount of its capital stock at the time actually paid in ;" and such 
bonds, coupon notes or other evidences of indebtedness not being "issued 
according to law," within the meaning of R. L., c. 113, § 26, cl. 3, h, are not 
legal investments for savings banks in this Commonwealth. 

You request my opinion as to whether the issue of New To the Bank 

^ 1/ X- Commissioner. 

ork, New Haven & Hartford Railroad Company 6 per cent. October 12 
ibenture bonds is a legal investment for Massachusetts^savings 
inks. 
R. L., c. 113, § 26, relating to savings banks, provides: — 

Deposits and the income derived therefrom shall be invested only as 
Uows: — 

Third, . . . 

h. In the bonds and notes of the New York, New Haven and Hartford 
ailroad Company issued according to law, notwithstanding the e.xistence 
1 the twenty-first day of March in the year eighteen hundred and ninety- 
X of a mortgage indebtedness not then matured upon the whole or a part 

the road of said company. 

This provision was first enacted in St. 1896, c. 178. I am 
ot aware that it has ever been passed upon by our Supreme 
"ourt or by the Attorney-General. 



184 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 65 of part II. of chapter 463 of the Acts of 1906, 
wliich provides for the determination by the Board of Railroad 
Commissioners of the reasonable necessity of any proposed issue 
of railroad stock, bonds or notes payable at periods of more 
than twelve months from date, contains also a provision that: — 

The provisions of this section shall not require the approval of the 
board of railroad commissioners to the issue of capital stock or bonds, 
or of coupon notes or other evidences of indebtedness as aforesaid, author- 
ized by law of this commonwealth, the proceeds of which are to be expended 
in another state or countiy, or wliich are to pay for borrowed money 
expended in another state or country. 

Section 66 provides that : — 

A railroad corporation, unless expressly authorized by its charter or 
by special law, shall not issue bonds, coupon notes or other evidences of 
indebtedness payable at periods of more than twelve months after the 
date thereof to an amount which, including the amount of all such securi- 
ties previously issued and outstanding, exceeds in the whole the amount 
of its capital stock at the time actually paid in; but this limitation shall 
not apply to the issue of bonds for the purpose of paying and refunding 
at maturitj^ bonds lawfully issued prior to the second day of June in the 
year eighteen hundred and ninety-seven; nor shall it apply to such of 
the bonds issued or to be issued under a mortgage as are deposited to 
retire at or before maturity bonds or other evidences of indebtedness 
previously issued and outstanding at the date of such mortgage, and as 
do not exceed the par value of the funded or other debt so to be retired; 
and such corporation shall not issue the securities specified in this section 
unless authorized by a vote of its stockholders at a meeting called for the 
purpose. 

The fact that the excepting clause of section 65 is omitted 
from section 66 seems to indicate that the latter section was in- 
tended to apply to the issue of all evidences of indebtedness, 
payable at periods of more than twelve months, of railroads 
chartered by this Commonwealth, irrespective of the purposes 
for which the money raised by such issue is to be expended, 
whether in another State or country or in this Commonwealth. 
Section 66 provides that the amount, including the amount of 
all such securities previously issued and outstanding, with cer- 



DANA MALONE, ATTORNEY-GENERAL. 185 

;ain exceptions, shall not exceed in the whole the amount of a 
•ailroad's capital stock at the time actually paid in. From a 
nemorandum furnished me of the capital stock issued and out- 
standing of the New York, New Haven & Hartford Railroad 
IJompany, the amount of bonds, coupon notes or other evi- 
lences of indebtedness payable at periods of more than twelve 
nonths after the date thereof, issued prior to the issuance of the 
) per cent, debenture bonds about which you inquire, appears 
be largely in excess of the capital stock actually paid in. It 
nay be that some of these bonds come within the exceptions 
nentioned in section 66, but, unless this is so, the issue would 
lot be duly authorized in this Commonwealth under the provi- 
ions of St. 1906, c. 463, part H., § 66, above quoted, as it 
rould be in excess of the capital stock paid in. Consequently, 
he bonds so issued would not be legal investments for savings 
)anks, because they would not be "issued according to law," 
vithin the meaning of R. L., c. 113, § 26, cl. 3, h. 

In my opinion, it makes no difference for what purpose the 
)roceeds of such issue are to be used, whether within or without 
he Commonwealth. See Attorney-General v. Neiv York, Neiv 
'{men & Hartford Railroad Co., 198 Mass. 413. 

Having received no information as to the amount of bonds 
ailing within these exceptions in the case of the New York, New 
laven & Hartford Railroad Company, I make no final decision 
dth respect to the debentures under discussion, but merely 
idvise you as to the principles of law to be applied in determin- 
ng the cases presented to you after the facts have been fully 
.scertained. 

My attention has been called to chapter 590 of the Acts of 
908, relative to savings banks, and chapter 620 of the Acts 
•f 1908, relative to railroad securities. Neither of these statutes 
lowever, affects the present question, the latter because it did 
lot take effect until June 12, 1908, which was subsequent to the 
late of the issue of the debenture bonds under discussion, and 
he former because it provides (as does the section of the Re- 
'ised Laws above quoted) that railroad securities, to be valid 
nvestments, must be bonds or notes issued "in accordance with 



180 OPINIONS OF THE ATTORNEY-GENERAL. 

the laws of this Commonwealth." See St. 1908, c. 590, part V., 

§ G8, cl. 3, a. 

As a general principle, I would say that bonds, coupon notes 
or other evidences of indebtedness payable at periods of more 
than twelve months after their date, issued in excess of the 
capital stock of a railroad corporation, would not be issued in 
accordance with the laws of this Commonwealth, and conse- 
quently would not be legal investments for savings banks in 
Massachusetts, whether the proceeds of such issue are to be 
used within or without the Commonwealth. See Common- 
icealth V. Smith et als., 10 Allen, 448. 



Master in Chancery — Removal from County — Vacancy 
— Appointment — Governor. 

It is the duty of the Governor, under the provisions of R. L., c. 165, § 52, to appoint 
masters in chancery as vacancies occur, "so that the number thereof in the 
several counties shall be eleven in Suffolk, nine in Essex, seven in Middlesex, 
seven in Worcester and not more than five in any other county;" and where 
a master in chancery appointed for the county of Middlesex removes there- 
from with the intention of permanently residing elsewhere, a vacancy is 
created in the list of such officers for such county, which the Governor is 
authorized to fill by appointment. 

t 

Governor. Through the executive secretary you, inquire whether or not 

October 19. a master in chancery appointed under the provisions of R. L., 
c. 165, § 52, for the county of Middlesex, and who thereafter 
removes from Middlesex County to Suffolk County, by such 
removal vacates the office held by him, so that the appointment 
by the Governor of an additional master in chancery to be cred- 
ited to Middlesex County would be warranted. 
R. L., c. 165, § 52, is as follows: — 

The governor, with the advice and consent of the council, shall, as 
vacancies occur, appoint masters in chancery so that the number thereof 
in the several counties shall be eleven in Suffolk, nine in Essex, seven in 
Middlesex, seven in Worcester and not more than five in any other county. 
They shall be sworn, and shall hold their offices for a term of five years, 
unless sooner removed h\ the governor and council. 



DANA MALONE, ATTORNEY-GENERAL. 187 

By St. 1904, c. 348, the number of masters in chancery for 
Middlesex County was increased to eleven. 

The obvious purpose of the statute above quoted was to pre- 
serve in the several counties named therein the designated num- 
ber of masters in chancery, who should there perform the duties 
imposed upon them by statute, in order that the convenience of 
residents of such counties might be properly served, and that 
opportunity might be given to gain access to a master in chan- 
cery whenever necessity might arise. 

I am therefore of opinion that where a master in chancery 
appointed for Middlesex County removes therefrom and resides 
elsewhere, a vacancy is created in the list of masters in chancery 
for such county, and that the Governor is authorized to appoint 
a master in chancery to fill such vacancy. My opinion is not 
affected by the provisions of St. 1906, c. 187, which has con- 
ferred upon masters in chancery jurisdiction to act throughout 
the Commonwealth, and has provided that their commissions 
should be "issued for the Commonwealth," for the reason that 
the requirement of residents of the several counties as masters 
in chancery therein is equally strong, whether or not the juris- 
diction of such officers extends throughout the Commonwealth. 



Corporation — Foreign Corporation — Usual Place of 
Business within the Commonwealth. 

A foreign corporation engaged in the business of operating mines beyond the limits 
of the Commonwealth, which maintains an office within the Commonwealth 
as a place for meetings of its board of directors, has a usual place of business 
therein, within the meaning of St. 1903, c. 437, § 58, and must comply with 
the requirements of sections 58-60 of such chapter. 

You ask my opinion on the question as to whether the Bing- To the Com- 

, "" . , ^ missioner of 

ham Metal Mmmg Company, a corporation organized under Corporationa. 
the laws of the State of Maine, is doing business within this October^26. 
Commonwealth so as to be subject to chapter 437 of the Acts 
of 1903, by reason of the following facts: — 

1. It is a foreign corporation, operating mines in the State of 
Utah, where all of its mining business is transacted. 



KS8 OPINIONS OF THE ATTORNEY-GENERAL. 

2. It has rented an office in Boston, and owns office furniture 
therein. 

3. The purpose of the Boston office is simply to have a place 
for meetings of its board of directors. 

4. It also has an account with a Boston bank. 

You ask: "Upon this statement of facts, is it my duty to 
require the Bingham Metal Mining Company to file the usual 
papers under sections 58-60 of chapter 437 aforesaid?" 

The question is a close one, but I am inclined to the opinion 
that the corporation has such a usual place of business. The 
original statute imposing a tax on mining companies incorpo- 
rated elsewhere and doing business outside the Commonwealth 
applied to a corporation "having an office or place of business 
within the Commonwealth for the direction of its affairs or 
transfer of shares." St. 1865, c. 283, § 8. Such corporations 
were required to semiannually make returns to the Tax Com- 
missioner, and to pay to the Treasurer of the Commonwealth a 
tax of one-twentieth of one per cent, upon the par value of the 
capital stock. This provision appears in Pub. Sts., c. 13, § 43. 
By St. 1882, c. 106, a foreign corporation engaged in mining, 
" which shall for any period exceeding ten days establish, set up, 
have or keep principal or branch, subscription, treasury or trans- 
fer office or agency within this Commonwealth," was required to 
file a certificate setting forth the name of the corporation, etc., 
and to pay a tax. In R. L., c. 14, § 51, it was provided that a 
foreign corporation engaged outside the Commonwealth in min- 
ing, and having "a usual place of business in this common- 
wealth," should make a semiannual return to the Tax Commis- 
sioner, and pay a tax. 

The history of the statute seems to indicate that the corpora- 
tions which were originally included in St. 1865, c. 283, § 8, 
were intended to be included within R. L., c. 14, § 51; that is, 
that the phrase "usual place of business" used in the Revised 
Laws is broad enough to include corporations which had within 
this Commonwealth offices used solely for directors' meetings or 
transfer offices. There is certainly no indication of any intent 
to change the law. 



DANA MALONE, ATTORNEY-GENERAL. 189 

The business corporation act, St. 1903, c. 437 (§ 95), ex- 
pressly repeals R. L., c. 14, § 51. The provisions of this act, 
however, so far as they are the same as those of statutes existing 
at the time of its passage, are to be construed as a continuation 
of those statutes. The words "usual place of business" occur in 
section 58 of the later act, and are to be construed as- they were 
to be construed under the earlier act. If, therefore, the Bing- 
ham Metal Mining Company w^as within the provisions of R. L. 
c. 14, § 51, it is also, in the absence of anything to indicate a 
contrary intention, within the provisions of St. 1903, c. 437, 
§§58-60. 

I think, therefore, that it is your duty to require the Bingham 
Metal Mining Company to file the usual papers under sections 
58-60 of chapter 437 aforesaid. 



Fisheries and Game — Pursuit of Wild Fowl — Launch or 

Power Boat. 

The shooting of wild fowl from a launch or power boat, which has been used to 
reach a place frequented by such wild fowl, and is there anchored, constitutes 
a violation of the provisions of R. L., c. 92, § 11, as amended by St. 1906, 
c. 241, which forbids the pursuit of wild fowl "with or by aid of a boat pro- 
pelled by steam or naphtha, or of a boat or vessel propelled by any mechan- 
ical means other than sails, oars or paddles." 

In a letter of recent date your Board requests my opinion ^^^j^^ 
as to whether it would be a violation of R. L., c. 92, § 11, as onFiTher'^r" 
amended by St. 1906, c. 241, "if a resident of Gloucester ^^ loos"'' 

November 12. 



should go out on Gloucester Bay in a steam launch, anchor it, 
set decoys, shoot out of the boat, and get the dead birds by 
means of a row boat." 

So far as material, the statute above cited provides that 
"whoever . , . pursues any wild fowl with or by the aid of a 
boat propelled by steam or naphtha, or of a boat or vessel pro- 
pelled by any mechanical means other than sails, oars or pad- 
dles, . . . shall be punished by a fine of not exceeding twenty 
dollars for each offence." 

In my opinion, the act described would constitute a violation 
of this provision. 



ion OPINIONS OF THE ATTORNEY-GENERAL. 

The obvious intent of the statute is that the hunter shall not 
be able to get a greater advantage over the game which he is 
pursuing than he is able to obtain without the aid of a power 
boat or similar mechanical means. 

In the case stated, the pursuit of the birds was begun when 
the hunter started from home; and, although the hunter has 
brought his power boat to a stop before shooting, and perhaps 
has completed the pursuit of the game by row boat, he has, 
nevertheless, pursued the birds with or by the aid of the power 
boat, and is therefore within the prohibitions of the statute. 



Civil Service — Exemption — Heads of Principal Depart- 
ments OF a City — City Bookkeeper. 

The office of city bookkeeper, established by the charter of the city of North Adams 
(St. 1895, c. 148), does not constitute the incumbent the head of any principal 
department in the governmental organization of such city, and, in the absence 
of other grounds for exemption, is within the operation of civil service rule 
VII., class 4, which includes "bookkeepers and persons doing similar work 
in the service of the Commonwealth and of any city thereof." 

cfvii'service ^^^ inquire whether the office of city bookkeeper, established 
dommbsion. by the city charter of the city of North Adams (St. 1895, c. 148, 
Docemb_er4. | 34)^ ^^^^^ ^j^j^j^ ^.^jj ^^^^j^^ ^^^^ yjj^ ^j^^^ 4, — " book- 
keepers and persons doing similar work' in the service of the 
Commonwealth and of any city thereof." You cite, as appli- 
cable to the office of bookkeeper, the following provisions, to be 
found in the city charter of North Adams, viz.: — 

Section 34. There shall be the following administrative officers, who 
shall be appointed by the mayor and who shall perform the duties by 
law^ and hereinafter prescribed for them, respectively, and such further 
duties not inconsistent with the nature of their respective offices as the 
city council may prescribe. . . . VIII. A city bookkeeper, who shall 
also be clerk of the board of public w^orks. and shall keep the accounts of 
all the departments as herein otherwise provided. . . . 

Section 43. All city officers not hereinbefore mentioned shall perform 
such duties as are or may be from time to time prescribed by law, and 
such other duties, not inconsistent herewith or with general laws, as the 
council may from time to time prescribe. 



DANA MALONE, ATTORNEY-GENERAL. 191 

Section 44. The administrative officers and boards above-named in 
his title, and all administrative officers and boards hereafter established 
y the city council and not coming within the department of anj'' officer 
r board so above-named, shall have the power, except as herein otherwise 
■rovided, to appoint or employ and to remove or discharge, all officers, 
lerks and employees in their respective departments. Such appointments 
hall not be for any specified term but shall hold good until removal or 
ischarge. . . . 

A city bookkeeper is obviously within the scope of the civil 
ervice law and rules, unless he is exempted by section 9 of 
hapter 19 of the Revised Laws, which provides as follows: — 

Judicial officers and officers elected bj^ the people or by a city council, 
ir whose appointment is subject to confirmation by the executive council 
ir city council of any city, officers elected by either branch of the general 
curt and the appointees of such officers, heads of principal departments 
)f the commonwealth or of a city, the employees of the treasurer and 
eceiver-general, of the board of commissioners of savings banks, and of 
.he treasurer and collector of taxes of any city, two employees of the 
nty clerk of anj'- city, teachers of the public schools, the secretaries and 
•onfidential stenographers of the governor, or of the mayor of any city, 
3olice and fire commissioners and chief marshals, or chiefs of police and 
ire departments, shall not be affected as to their selection or appointment 
)y any rules made as aforesaid; but, with the above exception, such 
•ules shall apply to members of police and fire departments. 

Although it is not specifically so stated, I assume that the city 
bookkeeper is not an officer whose appointment is subject to con- 
firmation by the city council of North Adams, and that if ex- 
empted at all it is because he comes within the provisions 
exempting the heads of principal departments of a city. A de- 
partment is defined to be "a distinct part of a governmental 
organization; a branch of government." Thus, in the Consti- 
tution of Massachusetts, article 30 of the Bill of Rights, the 
word "department" is applied to the legislative, judicial and 
executive powers. A principal department of a city is one of 
the several divisions of governmental organization into which 
the government of a city readily separates itself. Broadly 
speaking, those departments would be the executive, as repre- 
sented by the mayor; the legislative, as represented by the city 



192 OPINIONS OF THE ATTORNEY-GENERAL. 

council; and the administrative, as represented by administra- 
tive officers appointed by the mayor or elected by the city 
council. Undoubtedly, however, the statute had particularly in 
view certain principal and easily recognized divisions in the 
administrative department of a city; such as, for instance, the 
division relating to public works, the division including the care 
and maintenance of the poor, and certain other distinct fields 
for administrative activity. See Attorney-General v. Trehy, 178 
Mass. 186. 

Upon this definition it is obvious that the office of city book- 
keeper, as established by the charter of the city of North Adams 
does not constitute the incumbent the head of any principal 
department of the governmental organization of the city, and, 
in the absence of other grounds for exemption, such officer 
would be subject to the civil service law and rules. 



Inspection of Buildings — Sanitation and Ventilation — 
Inspection Department of District Police. 

Under the provisions of St. 1907, c. 537, § 5, and St. 1908, c. 369, the inspection 
department of the Massachusetts District Police has no jurisdiction over 
matters of sanitation or ventilation in buildings subject to inspection, other 
than to order changes in construction for ventilating or sanitary purposes, 
when the necessity therefor is reported to such department by the State 
Board of Health. / 

Chief of the ^- ^^^"^ letter of November 6 you require my opinion upon 

dXc'i'poUcc. t^^t^ question whether or not, under the existing laws, the in- 
Decembcrii. spcctors of factoHes and public buildings in the inspection 
department of the District Police are authorized or required to 
take any independent and initial action with respect to the 
inspection of ventilation and sanitary appHances in public 
buildings. 

Under the provisions of Pt. L., c. 104, § 41, and c. 106, 
§§ 41-45, inclusive, all jurisdiction with respect to matters of 
sanitation and ventilation in public buildings was vested in the 
factory inspectors of the District Police. This authority was, 
however, specifically repealed by St. 1907, c. 537, § 5, which is 
as follows : — 



DANA MALONE, ATTORNEY-GENERAL. 193 

The state inspectors of health shall, under the direction of the state 

)ard of health and in place of the inspection department of the district 

)lice, enforce the provisions of section forty-one of chapter one hundred 

id four of the Revised Laws so far as said section provides that factories 

all be well ventilated and kept clean, sections forty-one, forty-four 

d forty-seven to sixty-one, inclusive, of chapter one hundred and six 

the Revised Laws, chapter three hundred and twenty-two of the acts 

the year nineteen hundred and two, chapter four hundred and seventy- 

e of the acts of the year nineteen hundred and three, chapter two 

ndred and thirty-eight of the acts of the year nineteen hundred and 

e, and chapter two hundred and fifty of the acts of the year nineteen 

ndred and six; and the powers and duties heretofore conferred and im- 

sed upon the members of said inspection department of the district 

lice by section eight of chapter one hundred and eight of the Revised 

ws in respect to the foregoing sections and acts, and in respect to all 

:s in amendment thereof or in addition thereto, and in respect to any 

ler laws, are hereby conferred and imposed upon said state inspectors 

health or such other officers as the state board of health may from 

1 16 to time appoint : provided, however, that neither said board of health 

I r any inspector thereof shaU have authority to require structural 

i erations to be made in buildings, but shall report the necessity therefor 

■ the inspection department of the district police. Wherever in said 

] )visions of law the words "inspector" or "inspectors" of factories and 

Wic buildings, "inspection department of the district police," "in- 

i ictor" or "inspectors" of the district police, "district pofice," "factory 

i pector" or "inspectors," and "member" or "members" of the district 

] ice occur, they shall be taken to mean state inspector or inspectors 

( health. Wherever the words "chief of the district police" occur, they 

i ill be taken to mean the state board of health. 



While this section is inartificial and in some respects obscure 
i to construction, it is not necessary for the purposes of this 
i [uiry to go beyond the express repeal of the sections of chap- 
t s 104 and 106 of the Revised Laws, above quoted. Upon the 
aproval of this act, the duties and powers theretofore vested in 
t ' members of the inspection department of the District Police 
■V re transferred to and imposed upon the State inspectors of 
1 dth, or such other officers as the State Board of Health might 
a )oint. 

St. 1907, c. 537, was in effect amended by St. 1908, c. 389, 
e.itled "An Act to define the powers and duties of the in- 



194 OPINIONS OF THE ATTORNEY-GENERAL. 

specters of factories and public buildings," Such inspectors 
were given the power to enter any building, structure or enclo- 
sure, for the purpose of examining the methods of prevention of 
fire, means of exits and means of protection against accidents; 
and they were further authorized to make investigations as to 
the employment of children, young persons and women, "except 
concerning health and the influence of occupation upon health." 
They may also enter any public building and public or private 
institution or schoolhouse, church, theatre, or other place of 
public resort, and make such investigations and order such 
structural or other changes as may be necessary in connection 
with the construction, occupation and heating appliances and 
conditions, but they are expresslj^ forbidden to order changes 
for ventilating or sanitary purposes. The section then proceeds: 
"provided, however, that they may order structural changes for 
any purpose whenever the necessity therefor has been reported 
in accordance with the provisions of section five of chapter five 
hundred and thirty-seven of the acts of the year nineteen hun- 
dred and seven." The provision of St. 1907, c. 537, § 5, re- 
ferred to, relates to notice from the State Board of Health, and 
has already been quoted. 

It results, from this proviso, that, while the inspectors of fac- 
tories have no powers to investigate, inspect or upon their own 
initiative order changes in methods of ventilation in buildings 1 
subject to their jurisdiction, it becomes their duty, upon report 
of the State Board of Health, to order such changes as may be 
deemed proper in the premises. 

From a consideration of the statutes above referred to, it 
clearly follows that the only connection with matters pertaining 
to sanitation or ventilation which the inspection department of 
the Massachusetts District PoHce still retain is the single duty 
to order structural changes in buildings for ventilating and san- 
itary purposes when the necessity therefor is reported to the 
inspection department of the District Police bv the State Board 
of Health. 



DANA MALONE, ATTORNEY-GENERAL. 195 



Corporation — Purpose of Organization — Buying and 
SELLING Real Estate. 

The Commissioner of Corporations has no authority to approve the incorporation 
of certain persons for the purchase of waste, undeveloped or partially devel- 
oped lands with a view to their development and sale, such purpose being 
forbidden by St. 1903, e. 437, § 7, as amended by St. 1906. c. 286, § 1, that 
"three or more persons may associate themselves . . . with the intention 
of forming a corporation under the general laws for any lawful purpose . . . 
except to buy and sell real estate." 

In a letter of Jan. 21, 1909, you have requested my opinion Tothe 
IS to whether or not you have authority to approve the incor- of Corpora- 



Doration of certain persons for purposes as follows : — 

To buy and make waste, undeveloped and partially developed land 
nto useful property; to survey and divide the same into building lots 
md roads, to build factories thereon and sell, or develop a manufacturing 
jusiness in the same, or improve it in any other way; to accept pay 
herefor in stocks, or mortgages. To sell houselots for cash, or on land 
;ontracts, or bonds. To establish parks and pleasure grounds on the 
iame, and to make, vend, buy and sell any and all kings of manufactured 
irticles and to do any and all other things necessary or convenient to 
;arry out the general purposes specified, so far as the same shall not 
;onflict with the laws of the Commonwealth. 



The provision of the statute upon the subject is clear and 
iefinite. St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, 
provides as follows : — 

Three or more persons may associate themselves by a written agree- 
nent of association with the intention of forming a corporation under 
■he general laws for any lawful purpose which is not excluded by the 
)rovision of section one except to buy and sell real estate. 

Among the purposes of the proposed corporation is the pur- 
)ose to buy and sell real estate, which is obviously not a pur- 
)ose for which incorporation is permitted by the statute. 

In my opinion, therefore, you are quite correct in your ruling 
the effect that you had no authority to approve of the incor- 
Doration proposed for the purposes described. 



tions. 

1909 
January 21. 



19G 



OPINIONS OF THE ATTORNEY-GENEKAL. 



To the 
State Board 
of Health. 

1909 
January 22. 



Boards of Health — Causes of Sickness — Contagious 
Diseases — Right to enter Schools — Inspectors of 
Health. 

A local board of health may, under its general authority conferred by R. L., c. 75, 
if in fact a contagious disease as a cause of sickness is found in a school, or if 
such board has reasonable and proper grounds for believing that a contagious 
disease may be found therein, enter such school and make all necessary 
examinations in the premises, and, if pupils suffering from contagious diseases 
dangerous to the public health are found, may remove such pupils to a hospital 
or quarantine station, but, in the absence of any reasonable grounds for 
believing that contagious disease existed in a school, such board or its agents 
would have no authority to enter therein for the purpose of making an exami- 
nation of the physical condition of the pupils in attendance. 

State inspectors of health, acting under their general powers as defined in St. 1907, 
c. 537, § 3, providing that such inspectors "shall gather all information 
possible concerning the prevalence of tuberculosis and other diseases dangerous 
to the public health within his district," would not be authorized to enter a 
school or hospital for the purpose of making a physical examination of in- 
di^^dual pupils or patients. 

You require my opinion upon the question "whether a local 
board of health, or its agents, acting under its general powers 
in investigating causes of sickness within its town and removing 
or preventing the same, has authority to enter public schools 
for the purpose of detecting causes of sickness, and, in case of 
discovery of infection in a pupil, to exclude such pupil from the 
school, and to make such further quarantine regulations as it 
may in case of disease in a house for' the protection of the 
public." 

I assume that your inquiry is directed to the exercise by local 
boards of health of the general powers conferred upon such 
boards, with respect to causes of sickness, by R. L., c. 75, § 65, 
which is as follows : — 

The board of health shall examine into all nuisances, sources of filth 
and causes of sicloiess within its town, or on board of vessels within the 
harbor of such town, which may in its opinion be injurious to the pubhc 
health, shall destroy, remove or prevent the same as the case may require 
and shall make regulations for the public health and safety relative 
thereto and relative to articles which are capable of containing or convey- 
ing infection or contagion or of creating sickness which are brought into 
or conveyed from its town, or into or from any vessel. Whoever violates 
any such regulation shall forfeit not more than one hundred dollars. 



DANA MALONE, ATTORNEY-GENERAL. 197 

and that your inquiry is further limited to the authority of a 
local board of health, where contagious diseases have been found 
actually to exist, to enter a school and discover whether or not 
such disease is actually present among the pupils attending such 
school. If it be further assumed that entries into such school 
for purposes involving an examination of the physical condition 
of the scholars therein are based upon reasonable grounds for 
believing that cases of sickness, which are in fact and effect 
causes of sickness, exist in such school, I am of opinion that 
local boards of health have the necessary power in the premises. 
Where sources of sickness actually exist, the powers of local 
boards of health are broad and comprehensive. See Belmont v. 
New England Brick Co., 190 Mass. 442; Stone v. Heath, 179 
Mass. 385. And such powers are not weakened where the 
causes of sickness are cases of contagious disease so numerous as 
to form an epidemic. See Oliver v. Gale, 182 Mass. 39, 40. 
Chapter 75 of the Revised Laws itself contains provisions for 
dealing with diseases dangerous to the public health, and gives 
to a local board of health the power to remove or to quarantine 
a person suffering from a disease of that character. See sec- 
tions 42, 43, 44 and 45. 

It follows, therefore, that if in fact contagious disease as a 
cause of sickness is found in a school, or if a local board of 
health has reasonable and proper grounds for believing that 
such contagious disease may be found therein, such board has 
authority to enter such school and to make all necessary exam- 
inations in the premises, and if pupils suffering from conta- 
gious diseases dangerous to the public health are found therein, 
to remove them to a hospital or quarantine station, in accordance 
with the provisions of section 42 above referred to. Upon the 
other hand, however, I am of opinion that a local board of 
health has no greater powers with respect to investigating 
generally the state of health of the pupils in a school than such 
board would have with respect to any other individual; and 
that, in the absence of any reasonable ground to believe that 
contagious disease as a cause of sickness exists in any school, 
such board of health, or its agents, would have no authority to 



19S OPINIONS OF THE ATTORNEY-GENERAL. 

enter upon the premises for the purpose of making an examina- 
tion of the physical condition of the pupils in attendance at 
such school. 

Your communication further inquires whether State inspec- 
tors of health, acting under their general powers as defined in 
St. 1907, c. 537, § 3, which provides that each State inspector of 
health "shall gather all information possible concerning the 
prevalence of tuberculosis and other diseases dangerous to the 
public health within his district," have authority to enter school- 
houses and hospitals for the purpose of obtaining such informa- 
tion. The State inspectors of health are appointed under the 
provisions of St. 1907, c. 537, which provides in section 3 
that: — 

Every state inspector of health shall inform himseK respecting the 
sanitary condition of his district and concerning all influences dangerous 
to the public health or threatening to affect the same ; he shall gather aU 
information possible concerning the prevalence of tuberculosis and other 
diseases dangerous to the public health within his district, shall disseminate 
knowledge as to the best methods of preventing the spread of such dis- 
eases, and shall take such steps as, after consultation with the state board 
of health and the local state authorities, shall be deemed advisable for 
their eradication; he shall inform himself concerning the health of all 
minors emploj^cd in factories within his district, and, whenever he may 
deem it advisable or necessary, he shall call the ill health or physical 
unfitness of any minor to the attention of his oi' her parents or employers 
and of the state board of health. 

You do not, in this question, state the character of the in- 
formation of which the health inspector is assumed to be in 
search. If such inspector desires to enter ^ school or hospital 
for the purpose of making a physical examination of individual 
pupils or patients, I am of opinion that the statute above 
quoted would not authorize him so to do. He has, how-ever, 
the same right to enter a hospital or school that is possessed by 
any other individual in search of information, independent of 
statute. If the statute above quoted confers upon such inspec- 
tor any right of entry into hospitals or schools, such right or 
authority must be found in the first clause of section 3, and 



DANA MALONE, ATTORNEY-GENERAL. 199 

nust be for the purpose of enabling the inspector to inform 
limself concerning the sanitary conditions of his district, which 
jonceivably might include the sanitary condition or method of 
construction of either a hospital or a school, and such other 
nformation of like nature as might be deemed necessary or 
mportant. Upon the other hand, if the information which he 
.eeks is to be gained by an examination of persons or of records 
)f case in the custody of a hospital or school, or other similar 
nformation, I am of opinion that the statute does not contem- 
)late the acquisition thereof as a matter of right, and does not 
;onfer authorit}^ upon the inspector to enter either a hospital 
)r a school for any such purpose. 



Boston & Maine Railroad — Extension of Line — Con- 
solidation WITH OTHER CORPORATIONS — LIABILITY TO 

Forfeiture of Charter. 

The ownership and control of the Portsmouth Street Railway and the purchase of 
the Eastern Railroad Company, both corporations of the State of New 
Hampshire, by the Boston & Maine Railroad, were duly authorized by the 
Legislature of this Commonwealth, and such acquisition and control do not 
render the charter of the Boston & Maine Railroad liable to forfeiture under 
the provision of St. 1906, c. 463, part II., § 47, that "if a railroad corporation 
owning a railroad in this commonwealth and consolidated with a corporation 
owning a railroad in another state . . . without authority of the general 
court, . . . extends its line of railroad, or consolidates with any other corpora- 
tion, . . . the charter and franchise of such corporation shall be subject to 
forfeiture." 

The acquisition and control of the Concord Street Railway and the extension of 
its line from Concord to Manchester, by the Concord & Montreal Railroad 
Company, was an acquisition and extension of a New Hampshire corporation 
of its own line, under proper authority from the State of New Hampshire, and 
such acquisition and extension do not render liable to forfeiture under the 
provision of law above cited the charter of the Boston & Maine Railroad, 
which operates the Concord & Montreal Railroad under a lease authorized 
by the Legislature of this Commonwealth. 

On January 26 an order of the tenor following was adopted '^^^^^l 
3y the Honorable Senate: — February le. 

Ordered, That the Attorney-General be requested to inform the Senate 
■vhether in his opinion the Boston & Maine Railroad Company, or any 
)ther raihoad corporation owning a railroad in the Commonwealth and 
-onsolidated with a railroad in another State, has subjected itself to the 



200 OPINIONS OF THE ATTORNEY-GENERAL. 

forfeiture of its charter and franchise by reason of the provision of the 
general raihoad and railway law contained in chapter four hundred and 
ninety-tliree of the statutes of nineteen hundred and six which forbids 
such a corporation to extend its line of raikoad without the authority of 
the General Court, or by reason of any other provision of section forty- 
seven of part two of said chapter. 

I have the honor to acknowledge the receipt of the foregoing 
order, and to reply thereto as follows: — 

I assume that the Honorable Senate, by reference to " chapter 
four hundred and ninety-three of the statutes of nineteen hun- 
dred and six," intended to designate chapter 463 of the Acts of 
said year, which is entitled "An Act relative to railroad cor- 
porations and street railway companies," and to require my 
opinion upon the effect of section 47 of part II. of said chapter 
with reference to the present status of the Boston & jNIaine 
Railroad and of any other railroad corporation owning a rail- 
road within the Commonwealth and consolidated with a rail- 
road in another State. 

The section referred to, St. 1906, c. 463, part II., § 47, pro- 
vides that : — 

If a railroad corporation owning a raihoad in this commonwealth and 
consolidated with a corporation owning a railroad in another state increases 
its capital stock, or the capital stock of such consolidated corporation, 
except as authorized by tliis act, without authority of the general court, 
or without such authority extends its line of railroad, or consolidates with 
any other corporation, or makes a stock dividend, the charter and fran- 
cliise of such corporation shall be subject to forfeiture. 

No evidence was transmitted to me by the Honorable Senate, 
or is officially before me, with respect to any specific act or acts 
of the Boston & Maine Railroad, or of any other consolidated 
corporation operating a railroad within the Commonwealth, ex- 
cept the New York, New Haven & Hartford Railroad Company, 
upon the legal status of which, with respect to certain provi- 
sions of the section above quoted, I have already expressed an 
opinion, which is before the Honorable Senate in my annual 
report; and I am awnre of no provision of law which would 



DANA MALONE, ATTOKNEY-GENERAL. 201 

equire or even authorize the Attorney-General officially to 
sccrtain or determine the facts material and necessary to a 
oiisideration of the present inquiry, in order to perform intelli- 
ently the duty imposed upon him by the provisions of R. L., 
. 7, § 7, to "give his opinion upon questions of law submitted 
3 him by the governor and council or by either branch of the 
eneral court." 

I am informed, however, that, although the question in the 
3rm submitted involves an investigation of fact with respect to 
he history of the several consolidated railroad corporations 
/hich operate railroads within the Commonwealth, which it is 
eyond the power of the Attorney-General to make, the Honor- 
ble Senate had particularly in view certain definite and specific 
cts of the Boston & Maine Railroad, upon the legality of 
.'hich, with respect to the provisions of the statute above 
uoted, my opinion is desired, viz., the acquisition or control of 
he Concord Street Railway and the extension of its road to 
lanchester, the ownership and control of the Portsmouth 
treet Railway and the purchase of the Eastern Railroad Com- 
any. 

With respect to these transactions the material facts are mat- 
ers of record, and are before me. The Concord Street Railway 
i directly owned and operated by the Concord & Montreal 
iailroad Company, a corporation of the State of New Hamp- 
hire, which has extended the line of such street railway to the 
ity of Manchester. Both the original purchase and the subse- 
uent extension were effected under and by virtue of the pro- 
isions of the general laws of the State of New Hampshire, 
/hich permit a railroad corporation to construct and operate its 
nes by electricity in or upon the public highways. The sec- 
ions above referred to are as follows (St. (N. H.) 1895, c. 27, 
§ 22 and 23) : — 

Section 22. Every railroad corporation established under the laws 
f this state, and operating railroads therein with steam for a motive 
ower, are hereby authorized to operate their railroads, or any part 
hereof, by electricity; and for the purpose of making the necessary 
hanges from steam to electricity as motive power, every such raihoad 



202 OPINIONS OF THE ATTORNEY-GENERAL. 

corporation may, with the consent of the railroad commissioners, and 
subject to the provisions of sections seventeen and eighteen of this act, 
issue such an additional amount of capital stock as may be necessary 
to defray the expenses of making such change in motive power and 
equipment. 

Section 23. If any existing steam railroad shall build extensions, 
branches, or additions to its hues, to be operated by electricity as the 
motive power, such steam railroad shall have the same right to build 
and operate such extensions, branches, and additions in the public high- 
ways, and be subject to all the duties, Uabilities, and restrictions as to 
that part of said extensions, branches, and additions operated by elec- 
tricity in public highways, as by the provisions of this act are conferred 
and imposed upon street railways in their use of public highways. 

See St. (N. H.) 1903, e. 102. 

The connection of the Boston & Maine Railroad with these 
transactions arises from the fact that it operates the Concord & 
Montreal Railroad Company under a lease dated June 29, 1895, 
and duly authorized by the Legislatures of Massachusetts and 
of New Hampshire, in New Hampshire by chapter 5 of the Acts 
of the year 1889, and in Massachusetts by St. 1893, c. 263. See 
St. (N. H.) 1893, c. 100; St. (N. H.) 1889, c. 146. 

It appears, therefore, that the acquisition of a street railway 
line in Concord and the extension of such line from Concord to 
Manchester by the Concord & Montreal Railroad Company was 
an acquisition and extension by a New Hampshire corporation 
of its own line, duly authorized thereto by the laws of that 
State. 

The Portsmouth Street Railway Company was constructed 
and is operated as a part of the Dover & Portsmouth Railroad 
Company, under authority of chapter 27 of the Acts of the year 
1895, of New Hampshire, the general law of the State of New 
Hampshire, which, as before stated, permits the operation by 
steam roads of extensions, branches or additions to its lines 
operated by electricity in the public highways (see sections 22 
and 23 of chapter 102 of the statutes of New Hampshire for the 
. year 1903); and such street railway formed a part of the line of 

the Dover & Portsmouth Railroad Company on Jan. 1, 1900, 
when such company was acquired by purchase by the Boston & 



j DANA MALONE, ATTORNEY-GENERAL. 203 

ilaine Railroad. This acquisition was effected under the ex- 
ress authority of the State of New Hampshire, given in St. 
889, c. 5, § 10, which authorized the purchase of the road, 
'anchises and property of the Eastern Railroad Company, the 
)astern Railroad in New Hampshire, the Portsmouth, Great 
alls & Conway Railroad, the Portsmouth & Dover Railroad, 
nd certain other railroads therein named. The Massachusetts 
uthority for the purchase of the Portsmouth & Dover Railroad 
ppears to have been conferred by St. 1891, c. 308, which in 
action 1 provided that: — 

The Boston and Maine Railroad is hereby authorized to acquire by 
urchase, the road, franchises and property of any railroad corporation 
'hose road is now operated by it under lease, contract or through owner- 
hip of stock, and whether said road belongs to a corporation organized 
nder the laws of this Commonwealth or organized under the laws of the 
tate of Maine, the state of New Hampshire, or the state of ^^ermont. 

Prior to the passage of this statute the relation of the Boston 
i Maine Railroad to the Portsmouth & Dover Railroad Com- 
)any had been that of lessor to lessee. It therefore appears 
hat the street railway in question forms a part of a railroad 
;orporation whose property, rights and franchises are owned by 
;he Boston & Maine Railroad; that prior to such ownership 
iuch extensions as may have been made of the lines of the 
Portsmouth Street Railway were extensions of the line of the 
Portsmouth & Dover Railroad Company; and that subsequent 
:o such ownership there have been, as I am informed, no exten- 
sions thereof. 

The acquisition of the Eastern Railroad Company, as has 
been stated, was authorized in New Hampshire by St. 1889, 
c. 5, which in section 10 authorized the Boston & Maine Rail- 
road to acquire by purchase the road, franchises and property 
of the Eastern Railroad Company, and thereafter to acquire by 
purchase the roads, franchises and property of the Eastern Rail- 
road of New Hampshire, the Portsmouth, Great Falls & Con- 
way Railroad, and certain other railroads therein specified. In 
section 12 the Boston & Maine Railroad was further authorized 



204 OPINIONS OF THE ATTORNEY-GENERAL. 

"to acquire by purchase the road, franchises and property of 
any railroad corporation incorporated under the laws of either 
the state of Massachusetts, Vermont or Maine whose road is 
now leased to or operated by said Boston & Maine Railroad 

. .", — a general provision identical with that contained in the 
• Massachusetts statute of 1891, chapter 308, which has already 
been quoted. In Massachusetts a like permission was granted 
to the Boston & Maine Railroad by St. 1888, c. 250, which in 
section 1 provided for the acquisition of the Eastern Railroad 
Company, with authority subsequently to acquire by purchase 
the road, franchises and property of the Eastern Railroad Com- 
pany of New Hampshire and of the Portsmouth, Great Falls & 
Conway Railroad (see St. 1890, c. 195). In accordance with the 
authority conferred by these statutes of Massachusetts and New 
Hampshire, respectively, the Boston & Maine Railroad acquired 
by purchase the road, franchises and property of the Eastern 
Railroad Company on May 9, 1890, the Eastern Railroad in 
New Hampshire on June 15, 1899, and the Portsmouth, Great 
Falls & Conway Railroad on May 9, 1890. 

From these facts it is clear that the Boston & Maine Railroad 
has not in the specific instances discussed consolidated with any 
other railroad within the State of New Hampshire, and has not 
within that State extended its own line contrary to the prohibi- 
tion of St. 1906, c. 463, part II., § 47. - It must follow, there- 
fore, that if by reason of any of these transactions the charter 
of the Boston & Maine Railroad has become liable to forfeiture 
under the provision of law already referred to, it has become 
liable thereto by reason of the extension of the line of the Con- 
cord & ^Montreal Railroad Compahy, a New Hampshire corpora- 
tion leased by the Boston & Maine Railroad, from Concord to 
Manchester in the State of New Hampshire, — an extension 
which was duly authorized by the laws of New Hampshire. 
Upon this point I am constrained to say to the Honorable 
Senate that in my opinion the provisions of section 47 cannot be 
extended to include, even by implication, an extension of the 
lines of a New Hampshire corporation so authorized and ef- 
fected. Even if the extension under consideration were of the 



DANA MALONE, ATTORNEY-GENERAL. 205 

nes of the Boston & Maine Railroad itself, the scope and 

''Urpose of the provision in section 47, with respect to exten- 

|ions of the lines of railroads beyond the limits of the Com- 

lonwealth, would not be wholly free from doubt. In the 

ase of Attorney-General ex rel. v. New York, New Haven & 

lartford R.R. Co., 198 Mass. 413, the court, in discussing a 

onsolidated corporation similar to the Boston & Maine Rail- 

: oad, and the mutual concessions by the several States by 

/hich it was created, said (page 422) : — 

How far, by reason of the peculiar nature of the corporation, or by 
Dree of express provisions in the statutes, has Massachusetts given up 
ts right of control of this corporation, or relieved it of the application 
I f our general laws, and how far has it retained such control? As creating 
I , corporation to build and operate a railroad in two different States, and 
! >y the language quoted from St. 1844, c. 28, § 2, the Legislature recog- 
I lized the fact that the corporation might have certain franchises, rights, 
)0wers, privileges and property granted or acquired under the laws of 
)nly one of the two States. As to such rights and powers as pertain 
, )nly to local matters, like the location of the railroad, the possession and 
nanagement of real estate, the crossing of highways and other railroads, 
I -he State in which they were to be exercised would have exclusive juris- 
liction. This fact is enough to show the reason for using the language 
•eUed on by the defendant. In regard to all such matters, the action 
)f only one State would be appropriate and sufficient. How far this 
mplied authority to grant powers and franchises without the co-opera- 
tion of the sister State should be held to extend, it is unnecessary in this 
3ase to decide. Whether it should go so far as to include the acquisition 
jf other raihoads within the State where the power is granted, or the 
.ocation and construction of new fines and extensions there, and an increase 
Df the capital stock for such purposes, is a question upon which it is not 
Qecessary to express an opinion. 

See 1 Op. Atty.-Gen. 118, 137. 

It further appears that all issues of stock and bonds of the 
Boston & Maine Railroad have been made in conformity' to 
the laws of the Commonwealth, and have been approved by the 
Board of Railroad Commissioners. 

This being so, I have to advise the Honorable Senate that 
such facts as I now have before me do not disclose any acts of 



20G OPINIONS OF THE ATTORNEY-GENERAL. 

the Boston & Maine Railroad, or, with the exception herein- 
before stated, of any other consoHdated corporation which 
operates a railroad within the Commonwealth, which would 
render liable to forfeiture the charters of such corporations 
under the provisions of section 47 of part II. of chapter 463 
of the Acts of 1906. 



To the 

Commissioners 
on Fisheries 
and Game. 

1909 
February 26. 



Registration of Hunters — Citizen — Residence on Land 

USED exclusively FOR AGRICULTURAL PURPOSES. 

Under the provisions of St. 1908, c. 484, § 3, which exempts, from the requirement 
prescribed by the statute of a certificate of registration, citizens who are 
bona fide residents on land owned or leased by them, and on which they are 
actually domiciled, such land being used exclusively for agricultural purposes, 
a person who is resident in a city or town and not upon a farm, but who is 
the owner of a wood lot used for growing wood, is not exempt from registration. 
A farmer, however, who is actually resident upon land used exclusively for 
agricultural purposes, may hunt without registration in a wood lot which 
is a part of his farm. 

In a letter of present date you have requested my opinion 
upon the construction to be given to section 3 of chapter 484 
of the Acts of 1908, requiring citizens of the United States 
resident in Massachusetts, who desire to hunt in Massachu- 
setts, to be registered and to pay a registration fee. The 
section referred to is as follows : — 

Every citizen of the United States who is a bona fide resident of this 
state shall pay for such certificate a fee of one dollar: provided, however, 
that this act shall not apply to any such citizen who is a bona fide resident 
on land owned or leased by him and on which he is actually domiciled, 
which land is used exclusively for agricultural purposes, and not for club 
or shooting purposes. 

Your inquiries, as I understand them, are: first, whether a 
person who lives in a city or town and not upon a farm, but 
is the owner of a wood lot used for growing w^ood, may hunt in 
that wood lot without registration; and, second, whether a per- 
son who does live upon a farm and carries on agriculture as a 
vocation, and is the owner of a wood lot used for growing 
wood, may hunt in that wood lot without registration. 



! 



DANA MALONE, ATTORNEY-GENERAL. 207 

In my opinion, the first question is to be answered in the 
legative. The clear intent of the proviso quoted is to exempt 
he farmer from restrictions upon his freedom to hunt within 
;he hmits of his own farm. The resident of a town or city who 
s not a farmer, but owns a wood lot, is not actually domiciled 
md resident on land used exclusively for agricultural purposes. 
He is therefore within neither the intent nor the terms of the 
statute, and is clearly not exempt from registration. 

In reply to the second question, my opinion is that a farmer 
ivho is actually domiciled and resident upon land used exclu- 
>ively for agricultural purposes may hunt without registration 
m a wood lot which is part of his farm. All the land embraced 
m the farm which he operates as a farm, whether it is tillage, 
pasture or woodland, is to be considered as land used for agri- 
cultural purposes. Such w^ood lot, while it need not be actually 
contiguous to the rest of the farm, must, in my opinion, be so 
nearly adjacent as to be considered as in fact a part of the farm 
upon which the farmer lives, and to be so used. 



Pauper Law — Insane Person — Removal from the Com- ■ 
monwealth — settlement. 

The provision of R. L., c. 80, § 6, that "a person who is absent from the common- 
wealth for ten consecutive years shall lose his settlement," is applicable to 
an insane person who was removed to an asylum in another state and there 
maintained for more than ten consecutive years. 

In a letter of recent date you have requested my opinion To the state 
upon the question arising upon the following facts: a woman ^"jg?^*^- 
fifty years of age had an undoubted settlement in Massachu- m^^^. 
setts, when, in 1896, she was taken to Mount Hope Asylum 
in Baltimore, Md., where she has remained continuously since 
that time supported as a private patient. Her relatives now de- 
sire to have her returned to Massachusetts and committed to an 
insane hospital of this Commonwealth. 

The question upon which you have asked my opinion is, 
whether the woman's settlement in Massachusetts has been lost 
under the provision of the last clause of R. L., c. 80, § 6, that — 



20S OPINIONS OF THE ATTOKNEY-GENERAL. 

A person who is absent from the commonwealth for ten consecutive 
years shall lose his settlement. 

The clause of the statute quoted, which has been held to be 
prospective in operation, was enacted in 1898, and has, there- 
fore, been in effect during more than ten years of the patient's 
absence. 

In my opinion, the statute operates upon the settlements of 
the sane and insane with the same effect, and whether a settle- 
ment has been lost under its provisions depends not upon the 
mental condition of the person in question, but solely upon her 
actual residence during the ten years under consideration. 

The patient referred to has, therefore, in my opinion, lost the 
settlement which she had in Massachusetts in 1896. 



To the House 
of Ucpre- 
sentativea. 

1909 
March 25. 



Animals — Slaughter or Killing — Healthy Condition — 
Meat from Carcasses of Cattle infected with Tuber- 
culosis — Sale. 

St. 1908, c. 329, providing in section 1 that "the sale, offer or exposure for sale, or 
delivery for use as food, of the carcass ... of any animal which has come 
to its death in any manner or by any means otherwise than by slaughter or 
killing while in a healthy condition . . . shall be punished by a fine of not 
more than two hundred dollars or by imprisonment for not more than six 
months," does not permit meat derived from the carcasses of cattle infected 
to any degree with tuberculosis or any other disease to be sold as food within 
this Commonwealth. 

I have the honor to acknowledge the receipt of an order 
adopted by the Honorable House of Representatives on March 
10, last, requiring the opinion of the Attorney-General "as to 
whether the laws and statutes of this Commonwealth permit 
cattle which are infected to any degree with tuberculosis to 
be killed and sold as food in this Commonwealth." 

I am aware of no provision of law which forbids the killing 
of cattle which are infected with tuberculosis; on the contrary, 
the killing of cattle so infected is in certain cases expressly re- 
quired (see R. L., c. 90, §§ 4, 6), and I therefore assume that 
the Honorable House of Representatives in substance requires 
my opinion upon the question whether or not the laws of the 



DANA MALONE, ATTORNEY-GENERAL. 209 

ommonwealth permit the sale of food products in any form 
erived from the carcasses of cattle which are found to have 
een to any degree infected with tuberculosis. Upon that 
ssumption I reply as follows: — 

The general supervision and inspection of slaughtered animals 
lid of all meat and other food products derived therefrom is 
ested in boards of health of cities and towns. R. L., c. 56, 

70, provides in part that: — 

Boards of health of cities and towns may inspect the carcasses of all 
aughtered animals and all meat, fish, vegetables, produce, fruit or 
revisions of any kind found in their cities or towns, and for such purpose 
ay enter any building, enclosure or other place in which such carcasses 
• articles are stored, kept or exposed for sale. If, on such inspection, 

is found that such carcasses or articles are tainted, diseased, corrupted, 
5cayed, unwholesome or, from any cause, unfit for food, the board of 
3alth shall seize the same and cause it or them to be destroyed forthwith 
' disposed of otherwise than for food. 

See R. L., c. 56, § 73. 

By section 99 of chapter 75 of the Revised Laws it is pro- 
ided that the proprietor of everj^ slaughter house, canning, 
alting, smoking or rendering establishment, and of every estab- 
shment used for the manufacture of sausages or chopped meat 
f any kind, who is engaged in the slaughter of neat cattle, 
heep or swine, the meat or product of which is to be sold or 
sed for food, shall be annually licensed by the mayor and 
Idermen of the city, the selectmen of the town, or, in towns, 
aving a population of more than five thousand, by the board 
f health, if there be any. 

Section 101 provides that: — 

A licensee under the provisions of the preceding section sh?ll not 
laughter any such animals, or cause them to be slaughtered at such 
laughter house or establishment, on any days other than those specified 
1 the application for such license, except in the presence of a member 
f the board of health or of an inspector appointed therefor by said board; 
ut he may at any time change the days for slaughtering such animals, 
y giving at least seven days' written notice thereof to the board or officer 
uthorized to issue hcenses, who shall immediately give written notice of 
uch change to such inspector of such city or town. 



210 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 102 provides that: — 

Such inspector as has been appointed by the board of health shall be 
present at all licensed slaughter houses or establishments upon the days 
designated for slaughter by the licensee, as provided in the preceding 
section, and there carefully examine the carcasses of all animals at the 
time of slaughter. Such inspection shall be made in such manner and 
under such rules and regulations as the board of catcle commissioners 
may determine and direct. If, in the opinion of an inspector, any carcass, 
or any meat or product thereof is diseased, cormpted, unwholesome or 
unfit for food, he shall seize it and cause it to be destroyed, as provided 
in section seventy of chapter fifty-six. 

Section 103 provides that in a slaughtering establishment 
wherein inspection and branding is not carried on under the 
rules and regulations for the inspection of live stock and other 
products, established by the United States department of agri- 
culture, the carcasses of animals slaughtered shall at the time of 
slaughter, if not condemned, be stamped or branded by the in- 
spector thereof in like manner as those inspected by the United 
States Bureau of Animal Industry for interstate trade. 

By section 104 a penalty is provided for the sale of un- 
stamped carcasses, which shall be deemed unfit for food. See 
St. 1903, c. 220; St. 1908, c. 329. 

R. L., c. 90 (originally St. 1894, c. 491), dealt w^ith the con- 
tagious diseases of domestic animals, arid in general authorized 
the Board of Cattle Commissioners, established by its provi- 
sions, from time to time to make orders and regulations relative 
to the prevention, suppression and extirpation of contagious dis- 
eases of domestic animals, and relative to the inspection, ex- 
amination, quarantine, care and treatment or destruction of 
such animals which are affected with, or have been exposed to, 
such diseases. Section 7 is as follows: — 

The board may make regulations for the inspection of meat, which shall 
conform to the regulations of the United States bureau of animal industry 
for the inspection of meat for export and for interstate commerce. 

By St. 1902, c. 116, the Board of Cattle Commissioners was 
abolished, and a Bureau of the State Board of Agriculture, to 



DANA MALONE, ATTORNEY-GENERAL. 211 

1)6 known as the Cattle Bureau, was created. In section 3 it 
7as provided that the Governor should annually appoint a 
^hief of the Cattle Bureau, who should have the powers and 
lerform the duties heretofore imposed and conferred upon the 
Joard of Cattle Commissioners, with the additional proviso 
hat no orders or regulations made by him under authority of 
actions 4 and 7 of chapter 90 of the Revised Laws should 
ake effect until approved by the Governor and CounciL 

R. L., c. 90, § 12, provided for the appointment in cities, ex- 
ept Boston, and in all towns, of one or more inspectors of ani- 
nals. By section 13 authority was conferred upon the Cattle 
Commissioners, whose powers are now vested in the Chief of 
he Cattle Bureau, to appoint such inspector or inspectors in 
iny city or town which failed to comply with the provisions of 
ection 12, above cited. Sections 14 and 15 deal with the 
luties of such inspectors. Section 16 is as follows: — 

An inspector shall comply with and enforce all orders and regulations 
vhich may be directed to him by the board of cattle commissioners or by 
my of its members. If he refuses or neglects so to do, he shall be punished 
)y a fine of not more than five hundred dollars. 

The effect of the statutes above cited is to provide that the 
nspection of slaughter houses, and of the carcasses of cattle 
slaughtered therein and the products derived therefrom, so far 
IS such inspection relates to food products, is within the juris- 
liction of the local boards of health. See R. L., c. 75, §§ 100- 
108; c. 56, §§ 70-76. It is also apparent from such statutes 
;hat the Cattle Bureau of the State Board of Agriculture is 
zested with authority to examine and inspect living animals and 
:he carcasses of animals which may be killed as a result of such 
nspection, in order to ascertain whether or not such animals 
ivere affected with any contagious or infectious disease. See 
R. L., c. 90, §§ 12-34. It is to be observed, however, that the 
nspection conducted by the Cattle Bureau does not include an 
investigation of the food products derived from cattle, such in- 
spection being within the jurisdiction of local boards of health, 
but is limited to an inspection of living cattle and a post- 



212 OPINIONS OF THE ATTORNEY-GENERAL. 

mortem examination of cattle which have been killed for the 
reason that they appeared to be affected with some contagious 
disease enumerated in R. L., c. 90, § 28. 

The inspection of meat within this Commonwealth is guided 
by certain rules and regulations prepared by the Chief of the 
Cattle Bureau and submitted for approval to the Governor and 
Council, under authority of R. L., c. 90, § 7, as amended by St. 
1902, c. 116, § 3, which rules and regulations, in accordance 
with the direction contained in that section, are in conformity 
with the regulations established by the United States Bureau of 
Animal Industry for the inspection of meat for export and for 
interstate commerce. The rules and regulations of the Federal 
Bureau, promulgated by authority of an act of Congress, ap- 
proved June 30, 1906 (34 St. 674), provide in section 13, as fol- 
lows : — 

Paragraph 1. The following principles are declared for guidance in 
passing on carcasses affected with tuberculosis : — 

Principle A. — The fundamental thought is that meat should not be 
used for food if it contains tubercle bacilli, if there is a reasonable possibility 
that it may contain tubercle bacilli, or if it is impregnated with toxic sub- 
stances of tuberculosis or associated septic infections. 

Principle B. — On the other hand, if the lesions are localized and not 
numerous, if there is no evidence of distribution of tubercle bacilh through 
the blood, or by other means, to the muscles or ],o parts that may be eaten 
with the muscles, and if the animal is well nourished and in good condition, 
there is no proof, or even reason to suspect, that the flesh is unwhole- 
some. . . . 

Principle D. — By localized tuberculosis is understood tuberculosis 
limited to a single or several parts or organs of the body without evidence 
of recent invasion of numerous bacilli into the systemic circulation. 

Paragraph 2. The following rules shall govern the disposal of tuber- 
culosis meat : — 

Rule A. — The entire carcass shall be condemned — 

(a) When it was observed before the animal was killed that it was 
suffering with fever. 

(h) When there is a tuberculous or other cachexia, as shown by anemia 
and emaciation. 

(c) When the lesions of tuberculosis are generalized, as sliown by their 
presence not only at the usual seats of primary infection, but also in parts 



DANA MALONE, ATTORNEY-GENERAL. 213 

I f the carcass or the organs that may be reached by the baciUi of tuber- 
ulosis only when they are carried in the systemic circulation. Tubercii- 
)sis lesions in any two of the following-mentioned organs are to be 
ccepted as evidence of generalization when they occur in addition to 
)cal tul)erculous lesions in the digestive or respiratory tracts, including 
he lymphatic glands connected therewith; spleen, kidney, uterus, udder, 
vary, testicle, adrenal gland, brain, or spinal cord or their membranes. 
Numerous uniformly distributed tubercles throughout both lungs also 
fford evidence of generalization. 

(d) When the lesions of tuberculosis are found in the muscles or inter- 
luscular tissue or bones or joints, or in the body lymphatic glands as a 
?sult of draining the muscles, bones or joints. 

(e) When the lesions are extensive in one or both body cavities. 

(/) When the lesions are multiple, acute, and actively progressive. 
Evidence of active progress consists in signs of acute inflammation about 
he lesions, or liquefaction necrosis, or the presence of young tubercles.) 

Rule B. — An organ or a part of a carcass shall be condemned — 

(a) When it contains lesions of tuberculosis. 

{b) When the lesion is immediately adjacent to the flesh, as in the case 
f tuberculosis of the parietal pleura or peritoneum, not only the mem- 
irane or part affected but also the adjacent thoracic or abdominal wall 
3 to be condemned. 

(c) When it has been contaminated by tuberculous material, through 
ontact with the floor, a soiled knife, or otherwise. 

(d) All heads showing lesions of tuberculosis shall be condemned. 

(e) An organ shall be condemned when the corresponding lymphatic 
;land is tuberculous. 

Rule C. — The carcass, if the tuberculous lesions are limited to a single 
ir several parts or organs of the body (except as noted in Rule A), without 
:\ndence of recent invasion of tubercle bacilh into the systemic circulation, 
hall be passed after the parts containing the localized lesions are removed 
md condemned in accordance with Rule B. 

Rule D. — Carcasses which reveal lesions more numerous than those 
lescribed for carcasses to be passed (Rule C), but not so severe as the 
esions described for carcasses to be condemned (Rule A), may be rendered 
nto lard or tallow if the distribution of the lesions is such that all parts 
'ontaining tuberculous lesions can be removed. Such carcasses shall be 
cooked by steam at a temperature not lower than 200 degrees Fahrenheit 
or not less than four hours. 

Acting under authority of R. L., c. 90, § 7, the Chief of the 
^-/attle Bureau established certain regulations, approved by the 



214 OPINIONS OF THE ATTORNEY-GENERAL. 

Governor and Council in accordance with the terms of St. 1902, 
c. 116, § 3, and thereby having the force of law, which are in 
substantial accord with the rules and regulations of the Federal 
Bureau of Animal Industry. 

It is clear, therefore, that the statutes and the rules and regu- 
lations of the Cattle Bureau, which conform to the regulations 
of the United States Bureau of Animal Industry, did permit 
cattle which were infected only to the extent of showing lesions 
which were locaHzed and not numerous, where there was no evi- 
dence of the distribution of tubercle bacilli through the blood, 
or by other means, to the muscles or to parts that might be eaten 
with the muscles, to be killed if well nourished and in good con- 
dition, and the meat derived from the carcasses of such cattle 
to be sold as food, under proper inspection, within the Com- 
monwealth, since under such conditions there is no proof, or 
even reason to suspect, that such meat is unwholesome; but 
such statutes and regulations did not permit the sale of any 
meat which was infected with tuberculosis. 

Upon April 30, 1908, chapter 329 of the Acts of 1908 became 
a law. This act provided in section 1 as follows: — 

The sale, offer or exposure for sale, or delivery for use as food, of the 
carcass, or any part or product thereof, of any animal which has come 
to its death in any manner or by any means otherwise than by slaughter 
or killing while in a healthy condition, or which at the time of its death 
is unfit by reason of disease, exhaustion, abuse, neglect or otherwise for use 
as food, or of any calf weighing less than forty pounds when dressed, with 
head, feet, hide and entrails removed, is hereby declared to be unlawful 
and prohibited. Whoever sells or offers or exposes for sale or delivers or 
causes or authorizes to be sold, offered or exposed for sale or delivered for 
use as food any such carcass or any part or product thereof, shall be 
punished l^y fine of not more than two hundred dollars or by imprison- 
ment for not more than six months. 

Section 2 placed upon the State Board of Health and its in- 
spectors, the State inspectors of health and all boards of health 
of cities and towns, and their inspectors, officers, agents and as- 
sistants, the duty of, and conferred upon them the necessary 
powers for, enforcing this statute. 



DANA M ALONE, ATTORNEY-GENERAL. 215 

Section 5 placed all slaughter houses under the supervision of 
;he State Board of Health, and subject to inspection by the 
5tate inspectors of health. 

Section 7 provided that "nothing in this act shall afifect or 
rapair the rights, powers or authority of any board or officer 
lot herein mentioned." This section obviously refers to the en- 
"orcement of the earlier provisions of the act, and does not 
ifFect or limit the application of such provisions. 

Section 1 of chapter 329 of the Acts of 1908 appears in a 
draft of legislation accompanying a petition by the Massachu- 
setts Society for the Prevention of Cruelty to Animals, which 
sets forth that such society represents "that there is need of 
further legislation for the prevention of cruelty to animals, espe- 
cially to protect them against cruelty in transportation, and to 
protect the public against the sale or use for food, or other im- 
proper use, of the carcasses of animals which have died in con- 
sequence of cruelty, maltreatment or neglect or otherwise than 
by regular slaughter; and to provide further means and agencies 
for enforcing the laws in relation thereto by extending the pow- 
ers of the State Board of Health or its officers or agents or of 
local health officers or otherwise." The act itself, however, is 
much broader and more drastic than the petition, and, by pro- 
viding that the sale, offer or exposure for sale or delivery for 
use as food of the carcasses, or of any part or product thereof, 
of any animal which has come to its death in any manner or 
by any means otherwise than by slaughter or killing while in 
a healthy condition, in my opinion does in terms forbid the sale 
— although not the killing — of any animal infected to any 
degree with tuberculosis, notwithstanding that such infection 
is local, and that the meat derived from the carcass thereof is 
not in any way affected by such disease. 

Replying specifically to the order of the Honorable House of 
Representatives, therefore, I am constrained to say that in my 
opinion the laws and statutes of this Commonwealth do not per- 
mit meat derived from the carcasses of cattle infected to any 
degree with tuberculosis, or with any other disease, to be sold 
as food within this Commonwealth. 



216 



OPINIONS OF THE ATTORNEY-GENERAL. 



I desire to point out, however, the obvious inconsistency 
which exists between St. 1908, c. .329, § 1, and other provisions 
of the laws of the Commonwealth and the provisions of the 
laws and rules and regulations of the Federal government in 
the premises. 



To the 
State Board 
of Health. 

1909 
March 2fi. 



Receptacle for Proprietary or Patent Medicine or 
Food Preparation — Label — Statement of Contents 
— Alcohol. 

Where a proprietary or patent medicine or food preparation containing alcohol is 
put up in a glass bottle enclosed in a pasteboard wrapper, the provisions of 
St. 1906, c. 386, § 1, as amended by St. 1907, c. 259, § 1, requiring that 
"upon every package, bottle or other receptacle holding any proprietary 
or patent medicine or any proprietary or patent food preparation which 
contains alcohol . . . shall be marked or inscribed a statement on the label 
of the quantity or proportion of each of said substances contained therein," 
are complied with if a proper statement is inscribed upon the pasteboard 
wrapper, so long as such bottle is contained therein. If, however, the glass 
bottle is removed from such wrapper and separatelj' sold or offered for sale, 
the statutes above cited would require a statement of the quantity or pro- 
portion of alcohol contained in such bottle to be inscribed upon the bottle 
itself. 

You have submitted to me an inquiry as to whether, in the 
case of a proprietary or patent food preparation containing 
alcohol, which is put up in a glass bottle enclosed in a paste- 
board wrapper, the requirements of St.- 1906, c. 386, § 1, as 
amended by St. 1907, c. 259, § 1, are complied with, if a state- 
ment of the quantity or proportion of alcohol contained therein 
is properly inscribed upon the pasteboard wrapper; that is, 
whether such statement must also be inscribed upon the glass 
bottle. 

St. 1906, c. .386, § 1, as amended by St. 1907, c. 259, § 1, pro- 
vides in part that: — 

Upon every package, bottle or other receptacle holding any proprietary 
or patent medicine, or any proprietary or patent food preparation, which 
contains alcohol, morphine, codeine, opium, heroin, chloroform, cannabis 
indica, chloral hydrate, or acetanilid, or any derivative or preparation 
of any such substances, shall be marked or inscribed a statement on the 
label of the quantity or proportion of each of said substances contained 



DANA MALONE, ATTORNEY-GENERAL. 217 

Dherein. . . . The pro\'isions of section nineteen of chapter seventy- 
ive of the Revised Laws, so far as they are consistent herewith, shall 
j,pply to the manner and form in which such statements shall be marked 
)r inscribed. 

Section 6 of this statute imposes a penalty upon "whoever 
nanufactures, sells or offers for sale any . . . food preparation 
n violation of the provisions of this act ..." 

R. L., c. 75, § 19, provides in part that "the required label 
ihall be firmly attached to or printed on the exterior of the said 
irticle, on the top or side thereof and in plain sight." 

In my opinion, the requirements of these statutes are com- 
plied with so long as the glass bottle is within the pasteboard 
.vrapper, if a proper statement is inscribed upon the pasteboard 
vrapper. The required label is then "on the exterior of the 
)ackage or envelope." If, however, the glass bottle is removed 
rom the pasteboard wrapper and in this condition sold or of- 
'ered for sale, these statutes are not complied with unless the 
itatement be properly marked or inscribed upon the glass bottle 
tself. 



Che Soldiers' home in Chelsea — Charitable Corpora- 
tion — Purposes of Incorporation — Soldiers and 
Sailors. 

The charitable corporation called the "Trustees of the Soldiers' Home in Massa- 
chusetts," created by the provisions of St. 1877, c. 218, for the purpose of 
establishing and maintaining in the city of Chelsea a home "for deserving 
soldiers and sailors and such members of their families as said trustees maj^ 
deem to be proper," may receive in such home or institution any deserving 
soldier or sailor, who has served in the organized military or naval forces 
either of the commonwealth or of the United States; and the transfer con- 
templated by St. 1908, c. 199, § 3, providing that "all real and personal estate 
held by said trustees shall revert to the commonwealth when the purpose for 
which the trustees were incorporated shall have been accomplished," may 
not be made upon failure to find inmates for the institution who have served 
in the late war of the rebellion. 

I have vour letter of April 8, in w'hich vou inquire, on behalf TotheCom- 

■" * ' . mittee on 

>f the committee on finance of the Executive Council, "in re- {;-j,"guj|Ve^ ^''^ 
;ard to the future transfer of the Chelsea Hospital by its board "^""gog"' 
'f trustees to the Commonwealth." ^.5!!ll*- 



218 OPINIONS OF THE ATTORNEY-GENERAL. 

By the name "Chelsea Hospital" you doubtless intend to 
designate the home for worthy soldiers and sailors maintained 
in the city of Chelsea by the "Trustees of the Soldiers' Home 
in Massachusetts," a charitable corporation created by the pro- 
visions of St. 1877, c. 218, for the purpose of establishing and 
maintaining a home "for deserving soldiers and sailors and 
such members of their families as said trustees may deem to 
be proper." The Commonwealth has repeatedly appropriated 
money in aid of the institution so established. See Res. 1905, 
c. 50; 1906, c. 53; 1907, c. 12, etc. In addition to the an- 
nual appropriation so made by the Commonwealth, there have 
been from time to time other appropriations for the construction 
of additional buildings for the use of the institution. See Res. 
1905, c. 77; St. 1906, c. 48; Res. 1907, c. 105, etc. In 1908 the 
charter of the corporation (St. 1877, c. 218) was amended by 
St. 1908, c. 199, which provided, among other things, for the 
representation among the trustees of the institution, three of 
whom are appointed by the Governor by and with the advice 
and consent of the Council, of the voluntary associations known 
as the "Massachusetts Division, Sons of Veterans, United 
States of America," and the "Department of Massachusetts, 
United Spanish War Veterans." In section 3 of this act there 
is a provision that "all real and personal estate held by said 
trustees shall revert to the commonwealth when the purpose 
for which the trustees were incorporated shall have been ac- 
complished," — a provision probably attached to the act for 
the reason that most of the property held or controlled by the 
corporation was donated or paid for from appropriations made 
by the Commonwealth. 

Upon these facts I assume that in substance you desire to be 
advised whether or not "the purpose for which the trustees were 
incorporated" is to be deemed to have been accomplished when 
there may be no longer deserving soldiers or sailors who have 
served in and are veterans of the war of the rebellion. It is to 
be observed that the purposes of the institution, as expressed in 
St. 1877, c. 218, § 1, are not in any way limited to deserving 
soldiers or sailors who have served in any particular war, or, 



DANA MALONE, ATTORNEY-GENERAL. 219 

ideed, to soldiers who have served in any war; and in my 
pinion such purposes are sufficiently broad to include and apply 
any deserving soldier or sailor who has served in the or- 
anized military or naval forces either of the Commonwealth 
r of the United States, and cannot fail so long as the United 
tates or the Commonwealth may maintain a regular military 
r naval force of enlisted soldiers or sailors. It is therefore my 
pinion that the transfer contemplated by St. 1908, c. 199, § 3, 
lay not be made upon failure to find inmates for the institu- 
ion known as the "Soldiers' Home in Massachusetts" who 
ave served in the late war of the rebellion, and that other 
eserving soldiers and sailors who are not veterans of that war 
lay be ehgible to become inmates thereof. In reaching this 
onclusion I do not deem it necessary to consider whether or 
ot the provisions of the section above referred to are effective 
t any time to secure in the manner contemplated the transfer 
■f the real and personal estate held by the trustees of such in- 
titution. 



NSURANCE — Accident and Health Disability — Form of 
Policy — Insurance Commissioner — Approval — Ex- 
ercise OF Legislative Power by Ministerial Of- 
ficer — Constitutional Law\ 

I proposed act, vesting in the Insurance Commissioner authority to approve the 
form of every policy of accident or health disability insurance issued in this 
Commonwealth, and constituting such approval a condition precedent to the 
issuance and delivery of such policy, without prescribing any standard form 
therefor or directing what, in substance, such policy shall contain, would 
be unconstitutional under the Constitution of Massachusetts, Article XXX. 
of the Bill of Rights, as a delegation of legislative power to a ministerial officer. 

By your letter of April 5 you seek my opinion upon the To the 
onstitutionalitv of a proposed act relative to accident, health insurance. 

\ . . 1909 

nd disability insurance, which contains the following pro- April 21 . 
isions: — 

Section 1. On and after January first, nineteen hundred and ten, 
10 policy of accident or health disability insurance shall be issued or 
lelivered in this commonwealth that does not provide for a period of 
:race in the pajTiient of premiums of at least thirty days during which 



220 OPINIONS OF THE ATTORNEY-GENERAL. 

period the policy shall remain in force nor until a copy of the form thereof 
has been filed at least thirty days with the insurance commissioner, and 
has been approved by him. 

Section 2. If the insurance commissioner refuses to approve the 
form of policy aforesaid, he shall notify the proper officer of said com- 
pany, with a statement of the reasons of said commissioner for the refusal 
of his approval; and said company may, within a reasonable time after 
the receipt of such notification, petition the supreme court to review the 
said action of the insurance commissioner. 

Insurance against bodily injury or death by accident and 
upon the health of individuals is authorized by St. 1907, c. 576, 
§ 32, as amended by St. 1908, c. 248, which provides that: — 

Ten or more persons residents of this commonwealth may form an 
insurance company for any one of the following purposes: — 

Fifth, To insure any person against bodily injury or death by accident, 
or any person, firm or corporation against loss or damage on account of 
the bodily injury or death by accident of any person, or against damage 
caused by automobiles to property of another, for which loss or damage 
said person, firm or corporation is responsible, and to make insurance 
upon the health of individuals. 

It is well established that the Legislature may prescribe a 
standard form of policy for any one or more of the kinds of in- 
surance authorized under the section above quoted, or may 
enact substantive provisions for all policies {Neio York Life In- 
surance Co. V. Hardison, 199 Mass. 190; Hewins v. London 
Assurance Corporation, 184 Mass. 177; Quinn v. Fire Association, 
180 Mass. 560; Boyden v. Massachusetts Masonic Life Assn., 167 
Mass. 242; St. 1907, c. 576, §§ 60, 91 and 93), and may em- 
power the Insurance Commissioner to pass upon and approve 
or disapprove both the form and substance of insurance policies 
submitted to him, in regard to such standard form or to any 
other requirement of law, vesting in the court the authority 
to review such finding upon petition of any company aggrieved 
thereby. Aetna Life Insurance Co. v. Hardison, 199 Mass. 181; 
Provident Savings, etc.. Society v. Cutting, 181 Mass. 261; St. 
1907, c. 576, § 75. 



DANA MALONE, ATTORNEY-GENERAL. 221 

It is to be observed, however, that the authority of the In- 
surance Commissioner to approve or disapprove the form or 
substance of a pohcy of insurance, in the cases above cited, rests 
upon some statutory declaration of the essentials which such 
policy shall contain, and that the function of the commissioner 
is to determine, as a ministerial officer and in the management 
of the details in the administration of the law, whether or not 
such policy conforms to the requirements of law, his determina- 
tion being subject to judicial review. New York Life Insurance 
Co. v. Hardison, supra, p. 197. 

With respect to the kinds of insurance here under considera- 
tion, to wit, accident, health and disability insurance, the Legis- 
lature has not established any standard form of policy, nor 
directed what in substance the contract shall contain; and in 
approving or disapproving any policy submitted to him under 
the provisions of section 1 of the proposed statute, the Insur- 
ance Commissioner must act upon his own unguided judgment, 
discretion and experience. In other words, the act in effect au- 
thorizes the Insurance Commissioner to establish such standard 
form or forms as he may deem applicable or proper in the 
premises, without in any particular indicating what shall be in- 
cluded therein. An authority so sweeping cannot be deemed to 
be the mere working out of details under a legislative act, or de- 
termination of facts upon which the application of a law has 
been made to depend, or discretion in its execution (see Com- 
monwealth v. Sisson, 189 Mass. 247), but is rather an authority 
to make or change the law itself. In other jurisdictions, where 
no standard form or other requirement has been established for 
contracts of insurance, a power vesting in the Insurance Com- 
missioner, or some other officer with like duties, to formulate 
and prescribe the nature of such contracts, has been held to be 
unconstitutional as a delegation of the legislative authority to 
a ministerial officer. King v. Concordia Fire Insurance Co., 140 
Mich. 258, 268; O'Neil v. Insurance Co., 166 Pa. St. 77; An- 
derson V. Assurance Co., 59 Minn. 182; Phoenix Insurance Co. 
V. Perkins, 19 So. Dak. 59; Bowling v. Insurance Co., 92 Wis. 



222 OPINIONS OF THE ATTORNEY-GENERAL. 

73; and I see no reason to doubt the application in this Com- 
monwealth of the principals so established. 

I am therefore of opinion that section 1 of the proposed act 
is unconstitutional, for the reason that it purports to delegate 
to and vest in a ministerial officer authority which may be con- 
stitutionally exercised only by the Legislature itself. Constitu- 
tion of Massachusetts, Bill of Rights, Article XXX. 

I may add that in my opinion section 2 of the proposed act 
is objectionable upon like grounds, since it purports to impose 
upon the Supreme Judicial Court duties which are ministerial 
and not judicial in their nature. Case of Supervisors of Elec- 
tions, 114 Mass. 247. 

Insurance — Corporation — Transaction of Insurance 
Business — Place of Contract — Jurisdiction. 

A Massachusetts corporation maintaining a department store, which, in combina- 
tion with certain other corporations, persons and co-partnerships within and 
beyond the Commonwealth, has given to a resident in the State of New York 
a power of attorney to make contracts of insurance in its behalf with each of 
such other corporations, persons and co-partnerships in which all of the other 
corporations, persons and co-partnerships bear a proportionate and distinct 
liability, is transacting the business of insurance within the provisions of St. 
1907, c. 576, § 3, which provides that "a contract of insurance is an agreement 
by which one party for a consideration promises to pay money or its equiva- 
lent or to do an act valuable to the assured upon the destruction, loss or injury 
of something in which the other party has an interest ..." If, however, 
such contracts are made in the State of New York, and no act in connection 
therewith is done within this Commonwealth, such corporation is not engaged 
in the business of insurance within the Commonwealth. 

i5.i?ance ^^^ ^^k my Opinion upon the question whether or not a 

commiasioner. Massachusctts Corporation maintaining a department store for 
-^^' the sale of dry goods and other merchandise, upon the facts 

stated by you, should be held to be engaged in the business 
of insurance, and with respect thereto subject to the regulations 
and restrictions imposed by the laws of the Commonwealth 
upon the conduct of the business of insurance. 

Upon the facts submitted it may be assumed that the cor- 
poration in question, and other persons, copartnerships and cor- 
porations within and beyond the Commonwealth, have given to 
a person resident in the State of New York their several powers 



DANA MALONE, ATTORNEY-GENERAL. 223 

of attorney which authorize such person to make contracts of in- 
surance with each of such persons, copartnerships and corpora- 
tions, in which all of the other persons, copartnerships and cor- 
porations shall bear a proportionate and distinct liability. By 
the powers of attorney so given an association has been created 
for the purpose above stated, which is managed and directed 
by a committee of five, representing those who have executed 
such powers of attorney, which committee has the power to dis- 
qualify and close the account of any member of such association; 
to maintain a general supervision over the acts of the attorney 
in fact; and to take charge of money received by him, subject 
to the deduction of his compensation, and to invest the same. 

Upon these facts two questions are presented; first, whether 
or not the transactions above described constitute the business 
of insurance as defined by the provisions of the laws of the 
Commonwealth; and, second, if such transactions do constitute 
the business of insurance, whether or not such business may 
be regulated in accordance with the insurance laws. 

No difficulty is presented by the first question. St. 1907, 
c. 576, § 1 , provides that : — 

In this act, unless the context otherwise requires : — 
"Company" or "insurance company" includes all corporations, asso- 
ciations, partnerships or individuals engaged as principals in the business 
of insurance. 

Section 3 provides : — 

A contract of insurance is an agreement by which one party for a con- 
sideration promises to pay money or its equivalent or to do an act valu- 
able to the assured upon the destruction, loss or injury of something in 
which the other party has an interest, and it shall be unla^^^ul for a com- 
pany to make a contract of insurance upon or relative to any property or 
interests or lives in this commonwealth, or with any resident thereof, or 
for any person as insurance agent or insurance broker to make, negotiate, 
solicit or in any manner aid in the transaction of such insurance, except 
as authorized by the provisions of this act or the laws relating to "fra- 
ternal beneficiary corporations" and "assessment insurance." All con- 
tracts of insurance on property, lives or interests in this commonwealth 
shall be deemed to be made therein. 



224 OPINIONS OF THE ATTORNEY-GENERAL. 

The transaction of the corporation in question, in my opinion, 
clearly constitutes the business of insurance. The corporation 
by its authorized agent receives a contract of insurance under 
which, in case of loss, each member of the association is sever- 
ally and distinctly bound to pay a proportionate part. Such 
corporation, also through its agent, makes with each and every 
other member a similar contract, upon which it in turn is 
severally liable for its proportionate share of the total amount 
of insurance provided for in such contract. It follows that the 
corporation, through its agent, has made as many separate con- 
tracts of insurance as there are persons, copartnerships or cor- 
porations which have filed powers of attorney with the com- 
mon agent; or, in other words, it has participated in separate 
contracts of insurance equal in number to the total number of 
such powers of attorney. It is to be observed that this is not 
the case of a corporation which insures in a mutual insurance 
company, thereby binding itself by a single contract to pay 
assessments wherever loss is incurred by any member of the 
company; the distinction being that in such case there is but a 
single contract, providing for the payment of such assessments 
as may be necessary, while here the corporation has written as 
many separate contracts of insurance as there are members of 
the association, and it will continue to write additional and 
separate policies as often as new members are admitted thereto. 

I am confirmed in the view already expressed by section 91 of 
chapter 576 of the x\cts of 1907, which provides for the regula- 
tion of associations of individuals wdio conduct the business of 
insurance in the manner known as Lloyds, " whereby each asso- 
ciate underwriter becomes liable for a proportionate part of the 
whole amount insured by a policy." 

Upon the second inquiry a more difficult question is pre- 
sented. Although it is not specifically so stated, I assume that 
the contracts made under authority of the power of attorney 
given by the corporation in question are made in New York, 
that payments upon them by way of premiums or other charges 
and payments of losses are there made, and that no business is 
in fact conducted within this Commonwealth. This being so, 



DANA MALONE, ATTORNEY-GENERAL. 225 

t would seem that if the association, with the exception of the 
Vlassachusetts corporation, w^ere composed of persons, copart- 
lerships or corporations which were not domiciled or located 
vithin the Commonwealth, the insurance by such corporation 
if its property in Massachusetts with such association could not 
)e regulated by the laws of this Commonwealth. In Allgeyer 
\ Louisiana, 165 U. S. 578, 591, the court, in holding that the 
)tate of Louisiana could not constitutionally prohibit the mak- 
Qg of contracts by its citizens with corporations not permitted 
do business in the State of Louisiana, where such contracts 
rere made beyond the limits of that State, said : — 

In the privilege of pursuing an ordinary calling or trade and of acquir- 
ig, holding and selling property must be embraced the right to make all 
roper contracts in relation thereto, and although it may be conceded 
hat this right to contract in relation to persons or property or to do busi- 
ess within the jurisdiction of the State may be regulated and sometimes 
rohibited when the contracts or business conflict with the policy of the 
tate as contained in its statutes, yet the power does not and cannot 
xtend to prohibiting a citizen from making contracts of the nature in- 
olved in this case outside of the limits and jurisdiction of the State, and 
.•hich are also to be performed outside of such jurisdiction; nor can the 
tate legally prohibit its citizens from doing such an act as writing this 
?tter of notification, even though the property which is the subject of 
he insurance may at the time when such insurance attaches be within 
he limits of the State. 

It must, I think, be equally true that a person resident in 
Massachusetts and engaged in other business therein may be- 
'ond the limits of the Commonwealth execute a contract to 
nsure a person domiciled in another State, and that persons 
nay go from Massachusetts into other jurisdictions with the 
•urpose either of insuring or of being insured, and may execute 
dth citizens of other States such contracts as they desire to 
nake. It can hardly be that, if persons so minded meet in 
nother jurisdiction and assume toward each other the rela- 
ions of insurer and insured under a contract made and to be 
performed in such jurisdiction, doing no act in connection 
herewith in this Commonwealth, they may, upon their return 



226 OPINIONS OF THE ATTORNEY-GENERAL. 

thereto, be held to be conducting in Massachusetts the business 
of insurance. If all the acts with relation to the creation of 
such a contract are in fact accomplished in another jurisdic- 
tion, the mere residence of the parties in Massachusetts would 
not confer upon this Commonwealth any jurisdiction to regu- 
late either the form of the contract or the performance of its 
obligations. And if a single contract is beyond the jurisdic- 
tion of the Commonwealth when made under such circum- 
stances, a series of contracts so made is equally beyond such 
jurisdiction, and the making of such" contracts would not con- 
stitute the business of insurance within the Commonwealth 
solely by reason of the fact that the contracting parties were 
resident therein. 

Upon the assumption already made, therefore, that all the 
contracts of insurance referred to are in fact made in the State 
of New York, and that no act in connection therewith is done 
within this Commonwealth, I am of the opinion that the cor- 
poration in question is not engaged in the business of insurance 
within the Commonwealth, and that such business conducted 
in the State of New York cannot be regulated or controlled by 
the laws of this Commonwealth. 



Governor and Council — Authority to Investigate Ex- 
penditures OF Departments and Institutions — Com- 
mittee ON Ways and Means. 

The Governor and Council may make investigations for the purpose of ascertaining 
whether or not money appropriated by the Legislature for the several depart- 
ments and institutions ■which, or the expenditures of which, are by law subject 
to their supervision, is being expended in a proper manner; but they may 
not constitutionally prevent the expenditure of money so appropriated for 
the purposes for which it was appropriated. 

The committee on ways and means of the Legislature may at any time ask the 
advice of the Governor and Council in regard to a proposed appropriation, 
but is not required so to do. 

Governor. Replying to Your Excellency's letter, in whicn you say, 

AprT26. " It h^s been intimated that under the Constitution of the Com- 

monwealth the Governor and Council has authority to investi- 
gate the expenditures in any department and to familiarize 



DANA MALONE, ATTORNEY-GENERAL. 227 

;self as much as it sees fit with any of the expenditures of the 
'ommonwealth," and ask whether or not this is so, and also 
hether the ways and means committee of the Legislature 
lay ask the advice of the Council in regard to any proposed 
ppropriations for expenditures. 

As to the duties of the Council, the Constitution of ^Nlassa- 
ausetts, part second, chapter II, section III, article I, pro- 
ides: — 

There shall be a council for advising the governor in the executive part 
' the government . . . ; and the governor, with the said councillors, or 
v^e of them at least, shall and may, from time to time, hold and keep 
council, for the ordering and directing the affairs of the commonwealth, 
;cording to the laws of the land. 

Article V of said section provides : — 

The resolutions and advice of the council shall be recorded in a regis- 
T, and signed by the members present ; and this record may be called 
! r at any time by either house of the legislature; . . . 

I Under chapter II, section I, article XI, of the Constitution it 
' provided : — 

No moneys shall be issued out of the treasury of this commonwealth, 
id disposed of (except such sums as may be appropriated for the redemp- 
Dn of bills of credit or treasurer's notes, or for the payment of interest 
ising thereon) but by warrant under the hand of the governor for the 
me being, with the advice and consent of the council, for the necessary 
;fence and support of the commonwealth; and for the protection and 
■eservation of the inhabitants thereof, agreeably to the acts and resolves 

the general court. 

R. L., c. 6, § 28, provides as follows: — 

Except as hereinafter provided, no money shall be paid from the treas- 
y without a warrant from the governor drawn in accordance with an 
)propriation in some act or resolve of the same or of the preceding year 
ter the demand or account to be paid has been certified by the auditor; 
it the principal and interest on all public debts shall be paid when due 
thout any warrant, and the governor may, without an appropriation. 



228 OPINIONS OF THE ATTORNEY-GENERAL. 

draw his warrant for the pajaiient of his own salary and the salaries of the 
justices of the supreme judicial court, for the payments required to be 
made from the income of the school fund, and for repayments required 
by section sixty-eight of chapter fourteen. No certificate shall be required 
from the auditor for payment of the pay rolls of the members of the 
council and general court. 

The articles of the Constitution and the statutes above 
quoted are the only general laws defining the duties of the 
Governor and Council in reference to expenditures. The Legis- 
lature frequently by an act or resolve provides that payments 
shall be made only upon approval of the Governor and Council, 
and in such cases statutes should be carefully examined in order 
to ascertain what are the prerequisites to the exercise of the 
authority of the Governor, with the advice and consent of the 
Council, to draw a warrant on the treasury. Whenever it 
appears that by such act or resolve the Legislature has either 
referred a claim or demand to any other officer or board 
or the Auditor of Accounts to be examined and audited, or 
has indicated an intention that money appropriated shall be 
paid upon the warrant of the Governor, with the advice 
and consent of the Council, then the general law above quoted 
will be so far modified. See Opinion of the Justices, 13 
Allen, 594. 

As Your Excellency knows, appropriations are made by the 
Legislature after hearings before the ways and means committee 
or otherwise as in the judgment of the Legislature seems best. 
The Governor and Council have no right to withhold an appro- 
priation by refusing to draw a warrant therefor merely because 
such appropriation is thought by them to be unwise. The time 
for the Governor to object to an appropriation is when the act 
or resolve comes before him for signature after it has been en- 
acted by the Legislature. That power is always open to him, 
and should be exercised when in his judgment an expenditure 
is thought by him to be unwise or unwarranted. 

I quote, as to the duty of the Auditor of Accounts in refer- 
ence to expenditures, section 15 of chapter 6 of the Revised 
Laws, which is as follows : — 



1 o' 



DANA MALONE, ATTORNEY-GENERAL. 229 

He shall examine all accounts and demands against the commonwealth, 
xcepting those for the salaries of the governor and of the justices of the 
upreme judicial court, those due on account of the principal or interest 
if a public debt, or of the pay rolls of the executive council, the senate or 
he house of representatives. He may require affidavits that articles 
lave been furnished, services rendered and expenses incurred, as claimed, 
luch affidavit for any state institution may be made by the disbursing 
fficer thereof. The auditor shall in all cases make a certificate specifying 
he amount due and allowed on each demand, the name of the person to 
.-horn such amount is payable, the law authorizing the same and the 
ead of expenditure to which it is chargeable. If the general court, by 
xpress statute, authorizes a board or public officer to approve demands 
gainst the commonwealth, and an appropriation therefor has been 
lade, the auditor shall, when such demands have been properly approved, 
romptly audit and certify such an amount, not exceeding the appropria- 
ion for that piirpose, as he may deem correct; and if it appears to him 
iiat there are improper charges in said accounts, he shall report the same 
3 the governor and council, with a separate certificate therefor. He shall 
3tain in his office copies of all such certificates and transmit the origi- 
als to the governor, who, with the advice and consent of the council, 
lay issue his warrant to the treasurer and receiver general for the amount 
aerein specified as due. 

Also section 19 of said chapter, which is as follows: — 

All original bills and vouchers on which money has been or may be 
aid from the treasury upon the certificate of the auditor or the warrant 
f the governor shall be kept in the auditor's department; and all boards, 
ommissions or public officers authorized to make contracts under which 
loney may be payal^le from the treasury shall file with the auditor 
irtified copies thereof. 

The Governor and Council may at any time examine such 
ills and vouchers in the Auditor's department, and thus fa- 
liliarize themselves with the expenditures of the Common- 
ealth as much as they wish. They may take such measures 
s they see fit to ascertain that the money appropriated for the 
arious institutions in the Commonwealth is being expended in 
le manner inteilded by the Legislature, and may make such 
ersonal investigation at the institutions themselves as may be 
ecessary to make sure that this is being done; but they have 



230 OPINIONS OF THE ATTORNEY-GENERAL. 

no right to say that the money appropriated by the Legisla- 
ture shall not be expended in the way authorized by it. There 
are various departments under the immediate supervision of 
the Governor, and in such departments it is his duty to see 
that the money appropriated is properly expended therein. 
There are other departments in which it is the duty of the 
head of such departments to see that the money appropriated 
is properly expended, and for which the Governor is not re- 
sponsible, and in which he has no authority except so far as 
may be necessary to see that the warrants are drawn in ac- 
cordance with the appropriations authorized by the Legisla- 
ture. Should the Governor and Council be of opinion that 
the finances of any institution are not being properly and 
economically expended, the remedy would be by removal of 
the trustees or other officers over whom they have authority, 
in accordance with the statutes in such case made and pro- 
vided. To this extent, under the Constitution and law of the 
Commonwealth the Governor and Council have authority to 
investigate the expenditures of any department, and to familiar- 
ize themselves as much as they see fit with any of the ex- 
penditures of the Commonwealth. 

Replying further, the ways and means committee of the 
Legislature, or any legislator, has a perfect right to request the 
advice of the Governor and Council in regard to any proposed 
appropriation for expenditures, or the advice of any other per- 
son; but that committee is not obliged to do so, and it may act 
upon the advice or not, as it sees fit. 



DANA MALONE, ATTORNEY-GENERAL. 231 



:sPECTiox OF Buildings — Inspector of Factories and 
Public Buildings — Plans — Establishment — Accom- 
modations for Ten or More Employees above Second 
Story. 

le word "establishment," as used in R. L., c. 104, § 22, which in part provides 
that "no building more than two stories in height which is designed to be used 
above the second story, in whole or in part, as a factory, workshop or mer- 
cantile or other establishment and has accommodations for ten or more em- 
ployees above said story, . . . shall be erected until a copy of the plans 
thereof has been deposited with the inspector of factories and public build- 
ings for the district in which it is to be erected . . .", refers to a single 
business organization, and does not include a number of offices above the 
second story which are independently occupied, and in none of which are 
ten or more persons employed. 

Your communication of April 2 requires my opinion upon the To the 

... " Chief of the 

Uowmg question: Massachusetta 

° ^ District Police. 

1909 



Is the person who erects or constructs a building^ or an architect or 
her person who draws plans or specifications or superintends tlie erec- 
>n or construction of a building having ten or more rooms above the 
3ond floor and which are designed to be used for business offices, and 
no one of said offices are ten or more persons to be employed, required 
deposit the plans and specifications of said building with the inspector 
factories and public buildings of the district in wliich the building is 
be erected? 

Your inquiry appears to relate to R. L., c. 104, § 22, which 
ovides that: — 

Xo building which is designed to be used, in whole or in part, as a 
blic building, pubUc or private institution, school house, church, 
eatre, pubhc hall, place of assemblage or place of public resort, and no 
ilding more than two stories in height which is designed to be used 
ove the second story, in whole or in part, as a factor\', work-shop or 
?rcantile or other establishment and has accommodations for ten or 
)re employees above said story, and no building more than two stories 
height designed to be used above the second story, in whole or in part, 
a hotel, family hotel, apartment house, boarding house, lodging house 
tenement house, and has ten or more rooms above said story, shall 
erected until a copy of the plans thereof has been deposited with the 



May 17. 



232 OPINIONS OF THE ATTORNEY-GENERAL. 

inspector of factories and public buildings for the district in which it is 
to be erected by the person causing its erection, or by the architect 
thereof. . . . 

The interpretation to be given to the above section with re- 
spect to the present inquiry must depend upon the meaning of 
the word "establishment," since it is clear that the building to 
which you refer is not designed for use either as a factory or as 
a workshop. The word "establishment" in this connection is 
defined as: — 

An organized household or business concern and everything connected 
with it, as servants, employees, etc.; an institution, whether public or 
private: as, a large establishment in the country; a large iron or clpthing 
estahlishvient; a hydropathic or water-cure establishment. 

The word "establishment" therefore imports a single busi- 
ness organization of some extent, and several offices in which 
are conducted distinct occupations may not be joined together 
to create an establishment within the meaning of the statute. 
The section above quoted includes only such an establishment 
or business, carried on in any building, as may have accommo- 
dations for ten or more employees above the second story. 
This language, in my opinion, must be taken to refer to a single 
establishment, and not to a number of offices which are inde- 
pendently occupied and in none of which are ten persons em- 
ployed, although in the aggregate there may be ten or more 
employees. 

Confining myself to the precise form of the question submitted, 
therefore, and without attempting to otherwise limit or define 
the meaning of the words "mercantile or other establishment," 
I am of opinion that the question submitted should be answered 
in the negative. 



I 



DANA MALONE, ATTORNEY-GENERAL. 233 



Boston Railroad Holding Company — Acquisition of 
Stock, Bontds, and Other Evidences of Indebtedness 
OF THE Boston & Maine Railroad — Restraint of 
Trade — Anti-Trust Act. 

The proposed bill (now St. 1909, c. 519) incorporating the Boston Railroad Holding 
Company, which authorized such company to acquire the stock, bonds and 
other evidences of indebtedness of the Boston & Maine Railroad, and 
permitted any railroad corporation existing under the laws of the Common- 
wealth at the date of the passage of such bill to guarantee the principal of 
and the dividends and interest upon the capital stock, bonds, notes and other 
evidences of indebtedness of the Boston Railroad Holding Company, and to 
acquire and hold such stock, bonds, notes and other evidences of indebtedness, 
is not in conflict with the provisions of the so-called Anti-Trust Act, the 
Federal Statute of July 2, 1890 (26 Stat. 209), which provides in section 1 
that " every contract, combination in the form of trust or otherwise, or con- 
spiracy in restraint of trade or commerce among the several states, or with 
foreign nations, is hereby declared illegal." 

The committee on railroads has submitted to me for my To the 

^ Committee on 

Dpinion the following question : — ^i909°^^^* 

May 27. 

The committee on raihoads is considering the so-called holding com- 
pany bill submitted to it by you. The question has been raised as to 
whether, if the New Haven Railroad were to control, directly or indirectly, 
this company, it would be a violation of the so-called Sherman Anti-Trust 
Act or of any other federal statute, or whether the holding company could 
then be made a party to the federal suit now pending against the New 
Haven Railroad. 

I assume that the inquiry of the committee is directed to any 
action upon the part of the New York, New Haven & Hartford 
Railroad Company which may be authorized by the provisions 
of section 4 of the proposed bill, which, so far as material, are 
as follows : — 

Any railroad corporation incorporated at the date of the passage of 
this act under the laws of this commonwealth may guarantee the princi])al 
of and the dividends and interest upon the capital stock, bonds, notes 
and other evidences of indebtedness of said Boston raihoad holding 
company, and may acquire and hold said stock, bonds, notes and other 
evidences of indebtedness: provided, however, that the shares of stock of 
said Boston railroad holding company shall not be sold or transferable 
until said stock has been guaranteed as hereinbefore provided. Any 



234 OPINIONS OF THE ATTORNEY-GENERAL. 

railroad corporation acquiring said stock as hereinbefore provided shall 
not thereafter sell the same without the express authority of the legislature. 

The so-called Sherman Anti-Trust Act, the statute of July 2, 
1890 (26 Stat. 209), which is, so far as I am aware, the only 
federal statute material in the premises, is entitled "An Act 
to protect trade and commerce against unlawful restraints and 
monopolies," and provides in section 1 that: — 

Every contract, combination in the form of trust or otherwise, or con- 
sph-acy, in restraint of trade or commerce among the several states, or 
with foreign nations, is hereby declared to be illegal. Every person who 
shall make any such contract or engage in any such combination or 
conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction 
thereof, shall be punished by fine not exceeding five thousand dollars, 
or by imprisonment not exceeding one year, or by both said punislmients, 
in the discretion of the court. 

It provides in section 2 that: — 

Every person who shall monopolize, or attempt to monopolize, or 
combine or conspire with any other person or persons, to monopolize 
any part of the trade or commerce among the several states, or with 
foreign nations, shall be deemed guilty of a misdemeanor. 

These provisions of law have been the subject of numerous 
decisions by the Supreme Court of the United States: United 
States v. E. C. Knight Co., 156 U. S. 1; United States v. Trans- 
Missouri Freight Association, 166 U. S. 290; United States v. 
Joint Traffic Association, 171 U. S. 505; Hopkins v. United 
States, 171 U. S. 578; Anderson v. United States, 171 U. S. 604; 
Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; 
Montague & Co. v. Lowry, 193 U. S. 38; Northern Securities Co. 
v. United States, 193 U. S. 197; Swift & Co. v. United States, 
196 U. S. 375; Loewe v. Laivlor, 208 U. S. 274; Shawnee Com- 
press Co. V. Anderson, 209 U. S. 423; and see United States v. 
American Tobacco Co., 164 Fed. 700; Bigeloio v. Calumet & 
Hecla Mining Co., 167 Fed. 721. 

Of the cases above cited, the Northern Securities Co. v. United 
States (193 U. S. 197), known as the "Northern Securities 



DANA MALONE, ATTORNEY-GENERAL. 235 

lase," was the most important, as it was the most sweeping in 
ffect. In that case the basis of the complaint brought by the 
?deral government was the acquisition by the Northern Securi- 
es Company, a corporation of the State of New Jersey, of the 
ontrol of the Great Northern Railway Company, operating 
nes of railway which extended from Duluth and St. .Paul in 
he State of Minnesota, to Portland in the State of Oregon, and 
Everett and Seattle in the State of Washington, and the 
s'orthern Pacific Railway Company, operating lines of railway 
rem Ashland in the State of Wisconsin, and from Duluth and 
it. Paul in the State of Minnesota, to Portland in the State of 
)regon, and to Spokane, Seattle and Tacoma in the State of 
Vashington, which were parallel and competing lines, and were 
ngaged in active competition for interstate freight and pas- 
enger traffic. This was effected by means of an exchange of 
he stock issued by the Northern Securities Company for that 
»f the two railroads above mentioned, and the possession of 
uch stock vested in the Northern Securities Company the 
;ontrol of both railroads, with the direct and necessary effect, 
IS the court said, "to restrain and monopolize interstate com- 
nerce by suppressing or (to use the words of this court in 
United States v. Joint Traffic Association) 'smothering' compe- 
-ition between the lines of tAvo railway carriers" (p. 354). A 
najority of the court held this transaction to be a violation of 
l:he Anti-Trust Act, so called, and the Northern Securities Com- 
pany was required to reconvey to the former holders all of the 
jtock of the Great Northern Railway Company and the North- 
ern Pacific Railway Company which had come into its posses- 
sion. After reviewing and summarizing the previous decisions 
upon the Anti-Trust Act, the majority opinion laid down 
certain principles as established by such decisions and within 
which the case before the court was held to fall. These prin- 
ciples, as declared by the court, speaking through ]Mr. Justice 
Harlan, were as follows : — 

That although the act of Congress known as the Anti-Trust Act has 
lie reference to the mere manufacture or production of articles or com- 
modities within the limits of the several States, it does embrace and 



236 OPINIONS OF THE ATTORNEY-GENERAL. 

declare to be illegal every contract, combination or conspiracy, in what- 
ever fomi, of whatever nature, and whoever may be parties to it, which 
directly or necessarily operates in restraint of trade or commerce among 
the several States or ivith foreign nations; 

That the act is not limited to restraints of interstate and international 
trade or commerce that are unreasonable in their nature, but embraces 
all direct. restraints imposed by any combination, conspiracy or monopoly 
upon such trade or conamerce; 

That railroad carriers engaged in interstate or international trade or 
commerce are embraced by the act ; 

That combinations even among private manufacturers or dealers whereby 
interstate or international commerce is restrained are equally embraced by 
the act; 

That Congress has the power to estabhsh rules by which interstate and 
international commerce shall be governed, and, by the Anti-Trust Act, 
has prescribed the rule of free competition among those engaged in such 
commerce; 

That every combination or conspiracy which would extinguish com- 
petition between otherwise competing railroads engaged in interstate 
trade or commerce, and which would in that way restrain such trade or 
commerce, is made illegal by the act; 

That the natural effect of competition is to increase commerce, and an 
agreement whose direct effect is to prevent this play of competition 
restrains instead of promotes trade and coinmerce; 

That to vitiate a combination, such as the act of Congress condemns, 
it need not be shown that the combination, in fact, results or will result 
in a total suppression of trade or in a complete monopoly, but it is only 
essential to show that by its necessary operation it tends to restrain 
interstate or international trade or commerce or tends to create a monopoly 
in such trade or commerce and to deprive the pubUc of the advantages 
that flow from free competition; 

That the constitutional guarantee of liberty of contract does not pre- 
vent Congress from prescribing the rule of free competition for those 
engaged in interstate and international commerce; and 

That under its power to regulate commerce among the several States 
and with foreign nations. Congress had authority to enact the statute 
in question. 

The court also, in eflfect, decided that the Anti-Trust Act 
might be enforced against a State corporation acting within its 
charter powers, provided that such action created a combina- 
tion or conspiracy which was in restraint of interstate trade; 
and disposed of the contention upon the part of the defendants 



DANA MALONE, ATTORNEY-GENERAL. 237 

hat if the statute were held to embrace the particular case 
hen under consideration it would be repugnant to the Consti- 
ution of the United States. 

Such, then, in brief, are the affirmative propositions estab- 
shed by the Northern Securities case, and the statute must 
low be taken to extend to every combination or conspiracy in 
estraint of interstate commerce, whether reasonable or un- 
easonable. See Shaumee Compress Co. v. Anderson, supra; 
Jnitecl States v. American Tobacco Co., supra. 

If the principle so declared is to be accepted without reserva- 
ion or qualification, it must be conceded that it would reach 
,nd forbid every kind of combination of individuals or corpo- 
ations in any way engaged in interstate commerce, and would 
n and of itself be decisive of the present inquiry; but in the 
s'orthern Securities decision the court did not have before it a 
:ase which involved the consolidation by express authority of a 
5tate of two domestic railroad corporations engaged in inter- 
;tate traffic, or the control of one by the other, expressly sanc- 
ioned by the same authority; on the contrary, the combina- 
;ion before the court was expressly forbidden by the State in 
.vhich one of the constituent railroads was incorporated and 
DOth were extensively operated (see Gen. Laws of Minn., 1899, 
3. 359; Laws of Minn., 1881, p. 109; 1874; p. 154), and was 
effected by means of a corporation of a State at a distance from 
:he territory in which such railroads were located. 

I conceive, therefore, that the first and more important ques- 
tion which is presented by the communication of the committee 
IS in substance whether or not the provisions of the Anti-Trust 
A.ct include and prohibit a consohdation of two railroad corpora- 
tions, such consolidation being duly authorized by the State by 
which they were created, or a control of one such railroad by 
the other, duly sanctioned by the Legislature of such State; and 
to this inquiry I reply as follows: — 

The right of a State to authorize or require or forbid the con- 
solidation of corporations which are subject to its jurisdiction is 
clearly recognized by the decisions of the Supreme Court of the ' 
United States. In Louisville & Nashville Railroad Co. v. Ken- 



238 OPINIONS OF THE ATTORNEY-GENERAL. 

tiicky, 161 U. S. 677, where the court was dealing with the con- 
soHdation of the Louisville & Nashville Railroad Company, the 
Chesapeake, Ohio & Southwestern Railroad Company and cer- 
tain subordinate corporations, a consolidation alleged to be in 
violation of the provisions of section 201 of the Constitution of 
Kentucky of 1891, which forbade the consolidation of the 
capital stock, franchise or property, or the pooling of the earn- 
ings, of certain corporations, including railroad corporations, it 
is nowhere intimated that the power of a State to authorize or 
forbid the consolidation of railroad corporations within its 
limits is to be .confined to lines of railroad engaged exclusively 
in Mi^rastate commerce. Upon the other hand, the court, at 
page 702, uses language which expressly concedes and confirms 
the right of a State to create and to regulate the instruments of 
interstate commerce within its jurisdiction, even to the extent 
of permitting the purchase by one railroad corporation of the 
stock of another : — 

It has never been supposed that the dominant power of Congress over 
interstate commerce took from the States the power of legislation with 
respect to the instruments of such commerce, so far as the legislation 
was within its ordinary police powers. Nearly all the railways in the 
country have been constructed under State authority, and it cannot be 
supposed that they intended to abandon their power over them as soon 
as thej' were finished. The power to construct them involves necessarily 
the power to impose such regulations upon their operation as a sound 
regard for the interests of the public may seem to render desirable. In 
the division of authority with respect to interstate railways Congress 
reserves to itself the superior right to control their commerce and forbid 
interference therewith; while to the States remains the power to create 
and to regulate the instruments of such commerce, so far as 'necessary 
to the conservation of the public interests. 

If it be assumed that the States have no right to forbid the consolida- 
tion of competing lines, because the whole subject is within the control 
of Congress, it would necessarily follow that Congress would have the 
power to authorize such consolidation in defiance of State legislation,— 
a proposition which only needs to be stated to demonstrate its unsound- 
ness. As we have already said, the power of one railway corporation to 
. purchase the stock and franchises of another must be conferred by express 
language to that effect in the charter; and hence, if the charter of the 
Louisville & Nashville Company had been silent upon that point, it will 



DANA M ALONE, ATTORNEY-GENERAL. 239 

e conceded that it would have no power to make the proposed purchase 
1 this case. As the power to pui-chase, then, is derivable from the State, 
le State may accompany it with such limitations as it may choose to 
npose. 

See also Railroad Co. v. Maryland, 21 Wall. 456. 

The case of Louisville & Nashville Railroad Co. v. Kentucky 
•as decided on March 30, 1896, more than five years after the 
assage of the Anti-Trust Act; and while the statute was not 
ivolved in the question at issue, and was not referred to in the 
pinion, the court must be deemed to have been well aware of 
:s provisions, and upon that date to have declared that such 
revisions did not limit the right of a State to regulate and 
ontiol domestic railroad corporations so far as necessary to the 
onservation of the public interests; and that even in the case 
•f competing railroads such regulation and control did not con- 
titute an interference with interstate commerce. See Pearsall 
'. Great Northern Raihvay Co., 161 U. S. 646; Cleveland, etc., 
ly. Co. V. Illinois, 177 U. S. 514; Wisconsin, Minnesota & 
^acific Railroad v. Jacobson, 179 U. S. 287, 297; Louisville & 
Sashville Railroad Co. v. Kentucky, 183 U. S. 503, 519; see 
Jso Missouri Pacific Raihvay v. Larrahee Mills, 211 U. S. 612, 
)21. 

It is evident that the several States have never regarded the 
statute as prohibiting or even limiting their action with respect 
;o the regulation and control of domestic railroad corporations 
IS an exercise of the police power. In this Commonwealth the 
\'ew York, New Haven & Hartford Railroad Company, the 
Boston & Maine Railroad and the Boston & Albany Railroad 
Company, as they now exist, are the result of numerous consoli- 
lations, leases and other forms of control authorized by the 
;tatutes of this Commonwealth and of other States in which 
;hey have been incorporated. Subsequent to 1890, when the 
\nti-Trust Statute was enacted, the Boston & Albany Railroad 
Company has been leased to the New York Central & Hudson 
River Railroad Company by authority of St. 1900, c. 468; the 
Fitchburg Railroad Company has been leased to the Boston k 
Maine Railroad by authority of St. 1900, c. 426; the Old Colony 



240 OPINIONS OF THE ATTORNEY-GENERAL. 

Railroad Company has been leased to the New York, New 
Haven & Hartford Railroad Company by authority of the 
general law (1894); and numerous other statutes have been 
enacted authorizing consolidations or leases of railroads within 
the Commonwealth. See St. 1894, c. 53; St. 1898, cc. 194, 
399; St. 1900, c. 424 (and see St. 1906, c. 463, part I, § 67; 
St. 1907, c. 585). In no one of these instances has the au- 
thority of the Commonwealth or the legality of the action of 
any railroad thereunder been questioned by the federal author- 
ities. I cannot believe that it was beyond the power of the 
Commonwealth to enact the legislation by which these con- 
solidations were effected, or that the federal courts would enter- 
tain bills in equity to enjoin their further continuance, or sus- 
tain criminal suits against the officers who operate the lines of 
railroad which they include; and in this respect I am unable to 
distinguish between a consolidation and any other form of com- 
bination or control. So long as a combination is created by] 
State authority, it seems to me immaterial by what means it is 
effected, whether by a holding company, a lease or a con- 
solidation. 

Notwithstanding any doubt which may be created by the 
language of the decision in the Northern Securities case, I am 
therefore constrained to conclude that' there is still vested in 
the several States, under the police power, authority to regulate 
and control domestic railroad corporations, notwithstanding 
that such corporations are instrumentalities of and are engaged 
in interstate commerce and in competing therefor, including the 
power to authorize their consolidation or the control of one by 
another through a lease or the ownership of stock; and I am 
further of opinion that it is within the authority of the Com- 
monwealth to pass the proposed act now before the committee, 
and that action thereunder by the New York, New Haven & 
Hartford Railroad Company or by any other railroad corpora- 
tion chartered by the Commonwealth of Massachusetts would 
not constitute a violation of the Anti-Trust Act. If the law 
were otherwise it would, in my judgment, create inextricable 
confusion in every State in the Union, and, in the words of Mr. 



DANA MALONE, ATTORNEY-GENERAL. 241 

istice Holmes, a former chief justice of the highest court of the 
ommonwealth, in his dissenting opinion in the Northern Secur- 
iies case, would "disintegrate society so far as it could into 
dividual atoms." 

Whether or not the holding company contemplated by the 
•oposed statute might properly be made a party to the suit 
•ought under the Anti-Trust act in the federal court, and now 
mding, against the New York, New Haven & Hartford Rail- 
•ad Company, is a question which must depend upon the ulti- 
ate decision in that suit, and I cannot with propriety attempt 
I foretell what that decision may be. I may, how^ever, sug- 
'st that the allegation which concerns the ownership or con- 
ol of the stock of the Boston & Maine Railroad by the New 
ork, New Haven & Hartford Railroad Company is but one 
nong several grounds for federal action, and is not essential 
» the maintenance of the suit; and that such allegation is 
ised upon a state of facts which, as I am advised, does not 
3W exist, and which may be distinguished from the state of 
,cts which would exist if action were taken by the New York, 
ew Haven & Hartford Railroad Company under the proposed 
atute now before the committee. 



Register of Deeds — Duty to record Instrument in 
Foreign Language. 

register of deeds is not by law required to receive and record an instrument in a 
foreign language, whether or not such instrument is accompanied by a 
translation. 

In reply to your inquiry as to "whether or not a register of ^°J|jfn^r°^' 
eeds within this Commonwealth is obliged under its laws to ^""^^^^ ^^<^oTds. 
!eeive and record any instrument in a foreign language, even "°^ 

the said instrument be accompanied by a translation," I 
ivise you that in my opinion a register of deeds is not obliged 
) receive and record any instrument in a foreign language, even 
lough such instrument be accompanied by a translation. 

The purpose of recording an instrument in the registry of 



242 OPINIONS OF THE ATTORNEY-GENERAL. 

deeds is to give notice of the contents thereof. It follows that 
the record must be such that a person examining it with a rea- 
sonable degree of care and intelligence may obtain actual notice 
of the facts recorded. Persons making such examinations can- 
not, in my opinion, reasonably be required to be familiar with 
languages other than English, which is the language used in the 
conduct of the affairs of the Commonwealth and in ordinary 
business transactions. Since the record must be in English, and 
since it must be an accurate copy of the instrument recorded, 
the instrument must be in English. The record of a transla- 
tion of an instrument would not be in compliance with the 
statutes requiring the recording of such instrument. Even if 
both an original instrument in a foreign language and a trans- 
lation of it were recorded, a person examining the record would 
have no assurance that the translation was accurate. 



State Highway — Opening — City or Tow^n — Water 
Works — Service Pipes. 

The water commissioners of a town are not authorized, without the permission of 
the Massachusetts Highway Commission, as, required by R. L., c. 47, § 11, 
to open a State highway for the purpose of laying service pipes therein, under 
an act providing that, in the construction and maintenance of suitable water 
works for the use of such town, they may "lay and maintain aqueducts, con- 
duits, pipes and other works under and over . . . public and other waj^s" in 
such town. 

MMsachusetts ^^^ ^^^^^ letter of July 2 you state that the water commis- 
oimmfssion. sioncrs of the town of Plainville recently opened a State high- 
Juiy 12. way in that town for the purpose of laying service pipes, and 

that the opening so effected was without permission from the 

Massachusetts Highway Commission. 

Such action is expressly forbidden by the provisions of R. L., 

c. 47, § 11, that: — 

No opening shall be made in any such highway nor shall any structure 
be placed thereon . . . except in accordance with a permit from the 
commission, which shall exercise complete and permanent control over 
such highways. 



DANA MALONE, ATTORNEY-GENERAL. 243 

It appears, however, that the water commissioners of the 
own of Plainville make the claim that they are not required to 
ecure a permit from the Massachusetts Highway Commission 
n accordance with the provision above quoted, for the reason 
hat chapter 404 of the Acts of 1908, entitled "An Act to au- 
horize the town of Plainville to supply itself and its inhabit- 
ants with water," provides in section 2 that the town, for the 
lurpose of constructing and maintaining complete and effective 
v'ater works, "may construct wells and reservoirs and establish 
•umping works, and may construct, lay and maintain aque- 
ucts, conduits, pipes and other works under and over any 
ind, water courses, railroads, railways and public or other 
/ays, and along such ways in the town of Plainville, in such 
Qanner as not unnecessarily to obstruct the same; and for the 
lurpose of constructing, laying, maintaining, operating and re- 
lairing such conduits, pipes and other works, and for all proper 
mrposes of this act, said town may dig up or raise and em- 
•ank any such lands, highways or other ways in such manner 
s to cause the least hindrance to public travel on such ways." 

I am of opinion that the water commissioners of the town of 
'lainville may not rely upon the provisions of the latter statute 
justify their action in opening a State highway within that 
own; and that in digging up a State highway, unless au- 
horized so to do, such statute cannot serve as justification in 
he premises. 



244 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Board 
of Appeal. 

1909 
August 11. 



Taxation — Excise Tax on Express Business on any Rail- 
road, Railway, Steamboat or Vessel in the Common- 
wealth — Computation — Gross Earnings within the 
State — Value of Capital, Bonds and Unfunded 
Debt — Deductions — Stocks, Securities and Real 
Estate outside Commonwealth not used in Express 
Business. 

In St. 1907, c. 586, as amended by St. 1908, c. 194, and St. 1908, c. 615, imposing 
an excise tax upon all persons, companies, partnerships or associations doing 
an express business upon any railroad, railway, steamboat or vessel in the 
Commonwealth, and providing, in section 5, that such tax shall be "upon 
the fair cash value of such proportion of his or its capital, bonds and unfunded 
debt ... as the gross earnings of the said person, company, partnership or 
association within the state, bear to his or its total gross earnings," the words, 
"gross earnings . . . within the state" include earnings within the State 
from interstate business, and such earnings should be considered in determin- 
ing the amount of such tax. 

In determining the amount "of the capital, bonds and unfunded debt" of a person, 
company, partnership or association doing an express business on any rail- 
road, railway, steamboat or vessel within the Commonwealth for the purpose 
of computing the excise tax provided for under the statutes above cited, 
property consisting of stocks, securities and real estate outside the Common- 
wealth and not used in the express business should be deducted from the 
total value of the capital, bonds and unfunded debt. 

The Board of Appeal, constituted under R. L., c. 14, § 65, 
has requested my opinion upon certain questions relative to the 
computation of the tax upon the Adams Express Company and 
the American Express Company imposed by St. 1907, c. 586, 
as amended by St. 1908, c. 194, and St. 1908, c. 615. 

This statute in section 5 requires the Tax Commissioner to 
levy an excise tax upon every person, company, partnership or 
association doing an express business on any railroad, railway, 
steamboat or vessel in the Commonwealth, — 

upon the fair casli value of such proportion of his or its capital, bonds 
and unfunded debt . . ., after deducting therefrom the value of the 
real estate, machinery, merchandise and other property belonging to 
the person, company, partnership or association, within the common- 
wealth and subject to taxation in the various cities and towiis thereof, 
together with the vahie of securities owned by him or it and not hable to 
local taxation, as the gi-oss earnings of the said person, company, partner- 
ship or association within the state, bear to his or its total gross earnings. 



DANA MALONE, ATTORNEY-GENERAL. 245 

The first question submitted is as to the meaning of the words 
'gross earnings . . . within the state," as used in the above 
ection. 

The tax imposed by the statute is similar in its nature to the 
ax imposed in this Commonwealth upon telegraph companies, 
md held to be constitutional in Western Union Telegraph Co. v. 
Massachusetts, 125 U. S. 530 (see also Massachusetts v. Western 
Jnion Telegraph Co., 141 U. S. 40), and to the taxes on express 
•ompanies imposed in some other jurisdictions and sustained in 
he Adams Express Cases, 165 U. S. 194; 165 U. S. 255; 166 
J. S. 171; 166 U. S. 185. See also Fargo v. Hart, 193 U. S. 
:90. It is an excise under the Massachusetts Constitution 
neasured by the value of property within the Commonwealth 
lot otherwise taxed. It is an attempt to reach the additional 
•alue "gained by the property being part of a going concern." 
The local tax and the excise "together fairly may be called a 
commutation tax." See Holmes, J., in Galveston, Harrisburg, 
'.tc., Railroad v. Texas, 210 U. S. 217, 226. 

In the value of the property which is the measure of the tax, 
he Legislature, in my opinion, intended to include the in- 
creased value due to the use of such property in interstate com- 
nerce. The tax "is intended to reach the intangible value due 
:o . . . the organic relation of the property in the State to the 
lA^hole system." See Holmes, J., in Fargo v. Hart, 193 U. S. 
190, 499. 

This can constitutionally be done. Adams Express Cases, 
nipra; Fargo v. Hart, supra; Galveston, Harrisburg, etc., Rail- 
'oad V. Texas, supra. 

The value of property within the State, including the in- 
creased value due to its use in interstate commerce, may be 
ietermined by reference to gross earnings within the State, in- 
cluding earnings from interstate business. In my opinion, the 
vvords "gross earnings . . . within the state," as used in the 
present statute, include earnings within the State from inter- 
state business, and such earnings should be considered in de- 
termining the amount of the excise. 

The statute, unlike many statutes imposing similar taxes, 



246 OPINIONS OF THE ATTORNEY-GENERAL. 

does not provide a method of determining the part of the earn- 
ings from interstate business to be treated as earnings within 
■the State. Cf. Maine v. Grand Trunk Railway Co., 142 U. S. 
217; Wisconsin & Michigan Railroad Co. v. Powers, 191 U. S. 
379; Galveston, Harrisburg, etc., Railroad v. Texas, supra. Such 
earnings are, therefore, to be determined as a matter of fact 
without the aid of prima facie rules. I shall not attempt to 
advise as to the method which should be followed in making 
this determination. Unless it has been made to appear to the 
Board of Appeal, as it has not to me, that the amount of the 
gross earnings within the State, used by the Tax Commissioner 
in the computation of the tax, includes a larger part of the 
earnings from interstate business than, all things considered, 
can fairly be apportioned to this State, the Board should not 
revise the determination of the Tax Commissioner upon this 
point. 

The second inquiry is as to whether, in determining the fair 
cash value of the proportion of the capital, bonds and un- 
funded debt of the companies upon which the tax is levied, 
property consisting of stocks, securities and real estate outside 
the Commonwealth not used in the express business should be 
deducted from the total value of capital, bonds and unfunded 
debt. 

In my opinion this deduction should be made. Fargo v. 
Hart, supra, is decisive upon the point that such property can- 
not be used as the measure of a tax such as is here in question. 
See also Delaware, Lackawanna & Western Railroad Co. v. Penn- 
syhania, 198 U. S. 341. The reason is clear. The tax is, in 
effect, a tax on the property by which it is measured. A State 
cannot tax property outside its jurisdiction. The more diffi- 
cult question is whether such property should be deducted in 
computing the tax, or whether the statute should be regarded 
as unconstitutional as an attempt to tax property not within 
the jurisdiction of the Commonwealth. In my judgment, the 
former is the better view. Though the requirement of such a 
deduction may not be read into the statute except for good 
reason {American Glue Co. v. Commonwealth, 195 Mass. 528, 



DANA MALONE, ATTORNEY-GENERAL. 247 

130), there is, in the fact that otherwise federal constitutional 
equirements would be infringed, a sufficient reason for implying 
.uthority to make such deduction. Such a construction is in 
.ccord with the established principle stated in Pittsburg, etc., 
Railway Co. v. Backus, 154 U. S. 421, 428: — 

It is not to be assumed that a State contemplates the taxation of any 
iroperty outside its territorial limits, or that its statutes are intended 
operate otherwise than upon persons and property within the State, 
t is not necessary that every section of a tax act should in terms declare 
he scope of its territorial operation. Before any statute will be held to 
titend to reach outside property, the language expressing such intention 
Qust be clear. 

The conclusion which I have reached as to the second inquiry 
s in accord with an opinion given by my predecessor to the Tax 
I"ommissioner under date of Dec. 1, 1905. 



Taxation — Exemption — Woodland used for Educational 
Purposes — Forestry. 

4. tract of woodland, acqmred and used by Harvard University for the purpose of 
instruction in forestry, is owned and occupied for educational purposes, and 
is therefore exempt from taxation, under the provisions of R. L., c. 12, § 5, 
cl. 3, which exempt from taxation real estate owned and occupied by literary, 
charitable and scientific institutions for the purpose for which such institutions 
are incorporated. 

You have requested my opinion as to whether a tract of commiSfoner. 
ibout seventeen hundred acres of woodland, situated in the August i3. 
town of Petersham, acquired by Harvard University for the 
teaching of forestry, is subject to taxation. 

The woodland in question is taxable unless it is exempt be- 
cause owned and occupied by Harvard University, or its officers, 
tor the purposes for which the university was incorporated. 
R. L., c. 12, § 5, cl. 3. I am of opinion that it is exempt on 
this ground. No question is made but that the teaching of 
forestry is within the broad educational purposes for which 
Harvard University was incorporated. That woodland is as 



248 OPINIONS OF THE ATTORNEY-GENERAL. 

necessary for the teaching of forestry as is a farm for the teach- 
ing of agriculture, is apparent. As a farm is exempt from tax- 
ation if used in the teaching of agriculture {ML Hermon Boys' 
School V. Gill, 145 Mass. 139), so, in my judgment, woodland 
used in the teaching of forestry is likewise exempt from taxa- 
tion. To claim this exemption, of course, the officers of the 
university must, in their use of the woodland, be acting in good 
faith and reasonably. Emerson v. Trustees of the Milton 
Academy, 185 Mass. 414, 415. So far as disclosed by the facts 
submitted to me and agreed to by the assessors of the town and 
by the representative of the university, there is nothing to in- 
dicate that the use of the woodland in question is not in good 
faith and reasonable. It does not appear that the area is un- 
reasonably large. It appears that the sales of lumber from the 
woodland are considerable in amount, but this fact does not 
deprive the university of its exemption, if such sales are merely 
incidental to the main use of the woodland as a place and 
means of instruction. From the statement submitted, it is to be 
inferred that such sales are merely incidental to such main use. 
A part of the tract (whether of the seventeen hundred acres 
situated in the town of Petersham or of three hundred in the 
adjoining town of Phillipston is not stated) is poor farming 
land, on which are a dwelling house which is occupied and used 
by students, two barns and a few other buildings. This dwell- 
ing house is used as a dormitory and dining room and for lec- 
ture rooms; the resident superintendent lives in one wing of it. 
It is, by reason of this use, exempt from taxation. See Harvard 
College v. Cambridge, 175 Mass. 145. The barns and other 
buildings are exempt from taxation, since they are used for pur- 
poses incidental to instruction in forestry. See Mt. Hermon 
Boys' School v. Gill, supra; Emerson v. Trustees of Milton 
Academy, suyra. The farming land not occupied by buildings 
is not used for purposes inconsistent with the general use of the 
woodland. It would be difficult to acquire a large area of 
woodland without some open. Under authority of Wesleyan 
Academy v. Wilhraham, 99 Mass. 599, 604, it is exempt from 
taxation. 



DANA MALONE, ATTORNEY-GENERAL. 249 



Taxation — Business Corporation — Deductions — Stocks 
and b0nt)s subject to taxation if owned by a natural 
Person Resident in this Commonwealth. 

n the assessment of the franchise tax upon a business corporation under St. 1903, 
c. 437, or St. 1909, c. 49, part III, the value of stocks and bonds which 
would be subject to taxation if owned by a natural person in this Common- 
wealth should not be deducted from the value of the corporate franchise. 

You have requested mv opinion as to the method of deter- To th^ Tax 

Commissioner. 

nining the amount upon which the franchise tax upon domestic October 22 
msiness corporations is to be assessed. 

By St. 1903, c. 437, § 72, codified as St. 1909, c. 490, part 
.II, § 41, cl. 3, it is provided that there shall be deducted from 
;he value of the shares constituting the capital stock of a do- 
nestic business corporation the value "of its property situated 
n another state or country and subject to taxation therein," 
ind "of securities which if owned by a natural person resident 
n this commonwealth would not be liable to taxation." In 
5t. 1903, but not in the codification, it is further provided that 
'from such value there shall not be deducted securities which, 
f owned by a natural person resident in this commonwealth, 
(vould be liable to taxation." 

Your inquiry is whether there should be deducted from the 
value of the shares constituting the capital stock of such a cor- 
poration the value of "certain stocks and bonds, all of which 
*\'ould be subject to taxation if owned by a natural person resi- 
dent in this Commonwealth, which stocks and bonds upon the 
first day of May are situated in New York and Illinois." 

In determining the amount upon which the franchise tax upon 
a business corporation is to be assessed, no deductions are to be 
made other than those expressly authorized by statute. Com- 
momvealth v. New England Slate & Tile Co., 13 Allen, 391; Cf. 
Commomcealth v. Hamilton Mfg. Co., 12 Allen, 298; Manufac- 
tnrers' Insurance Co. v. Loud, 99 Mass. 146; Home Insurance 
Co. V. New York, 134 U. S. 594. 

In view of the express provision of St. 1903, it is clear that 
under that law the value of the stocks and bonds in question 



250 



OPINIONS OF THE ATTORNEY-GENERAL. 



should not be deducted from the value of the shares constitut- 
ing the capital stock of the corporation. The provisions of the 
codification, which took effect on the thirtieth day after June 
12, 1909 (R. L., c. 8, § 1), are to be construed as continuations 
of existing statutes (section 26). Such codification is not to be 
presumed to have changed the law unless the intention clearly 
appears. Wright v. Dresser, 140 Mass. 147, 149. The commis- 
sion which reported the codification expressly disclaim any in- 
tention to change the law (report of the Commission on Taxa- 
tion, .January, 1908, pp. 12, 79), and the same construction can 
reasonably be given to the law as codified as was given to the 
earlier law. It is, therefore, unnecessary for me to express an 
opinion as to which law governs, since, in my judgment, under 
either law the value of the stocks and bonds referred to is not 
to be deducted. 



To the Bank 
Commissioner. 

1909 
October 26. 



Corporation — Name or Title containing the Words 
"Bank" or "Banking." 

The provisions of St. 1909, c. 491, § 4. amending St. 1908, c. 590, § 16, that no 
person, partnership, corporation or association, except co-operative banks, 
savings banks and trust companies incorporated under the laws of this 
Commonwealth, and such foreign banking corporations as were doing business 
therein and were subject to the examination or supervision of the Bank 
Commissioner on June 1, 1906, should thereafter "transact business under 
any name or title which contains the word 'bank' or 'banking,' as descriptive 
of said business," are applicable to a corporation organized prior to the 
passage of such act. 

I have your letter of the 19th inst., in which you request my 
opinion as to whether or not it is in violation of chapter 491 
of the Acts of 1909 for any corporation chartered by this Com- 
monwealth prior to the passage of said act to continue to use 
the words "bank" or "banking" in connection with its busi- 
ness. Your reference is to section 4 of the act cited, which 
amends St. 1908, c. 590, § 16, by adding at the end thereof the 
words: "Nor shall any person, partnership, corporation or asso- 
ciation except co-operative banks incorporated under the laws 
of this commonwealth and corporations described in the first 
sentence of this section hereafter transact business under any 



DANA MALONE, ATTORNEY-GENERAL. 251 

ime or title which contains the words 'bank' or 'banking,' as 
?scriptive of said business." The corporations described in the 
•st sentence of the section are " savings banks and trust com- 
mies incorporated under the laws of this commonwealth," and 
such foreign banking corporations as were doing business in 
is commonwealth and were subject to examination or super- 
sion of the commissioner on June first, nineteen hundred and 
v. 

This statute is in the nature of a police regulation for the pre- 
•ntion of fraud. Its purpose is evidently to prevent persons, 
irtnerships, corporations and associations other than those 
ider the supervision of the Bank Commissioner from holding 
iCmselves out as banks or banking institutions. It is in- 
nded that any one dealing with a corporation which transacts 
isiness under a name or title containing the words "bank" 
• "banking" shall have the assurance that he is safeguarded 
such dealing by provisions of law and by State supervision, 
his purpose wholly fails if the prohibition in the statute under 
)nsideration be construed as not applying to corporations 
rmed prior to its enactment. 

The language of the statute, apart from other considerations, 
dicates that the Legislature meant that the prohibition should 
jply to corporations, whenever formed. If the Legislature had 
tended it to apply only to corporations formed after its enact- 
ent, it could readily have said so. If this had been the inten- 
on, the prohibition, in the case of corporations, would natu- 
.lly have been against incorporation rather than against the 
ansaction of business under such name or title. The prohi- 
tion, as applied to corporations, is the same as applied to 
arsons, yet no one would suggest that the prohibition as to 
arsons applied only to those commencing business after the 
issage of the act. 

The history of the statute, so far as it is of any assistance, 
ads to the same conclusion. The statute was passed at the 
stance of the Bank Commissioner, who recommended legisla- 
on prohibiting the doing of business under such name or title 
by organizations not incorporated under banking or trust 



252 OPINIONS OF THE ATTORNEY-GENERAL. 

company laws of this Commonwealth." There is here no sug- 
gestion of a limitation to corporations afterward formed. 

The hardship caused by the statute, construed in this man- 
ner, is not unreasonably severe. A change in the name of a 
corporation may readily be effected. See St. 1903, c. 437, § 40. 
Of course the name has a value which would be destroyed by a 
change, but to require a change in name imposes no greater 
hardship upon the corporation than upon a person, partnership 
or association. At any rate, the hardship is no greater than the 
Legislature may properly impose under a police regulation. No 
constitutional rights are invaded. 

These considerations lead me to the conclusion which I have 
stated, — that the prohibition in the statute applies to the cor- 
porations not expressly excepted therefrom, regardless of the 
time of formation. 



Insane Peeson — Guardian — Petition to sell Real 
Estate — Notice. 

Under the provisions of St. 1909, c. 504, § 102, that upon a petition of a guardian 
for license to sell property of a spendthrift or of an insane person a license to 
sell shall not be granted to such guardian unless "seven days' notice of the 
petition therefor has been given to the overseers of the poor of the city or 
town in which the spendthrift resides, or to the state board of insanity in 
the case of an insane person," such notice, in the case of an insane person, 
is to be given only to the State Board of Insanity. 

R. L., c. 145, § 41, providing that a conservator shall give bond as required of 
guardians of insane persons, and making all provisions of law relative to the 
management, sale or mortgage of the property of insane persons applicable 
to such conservator, is not repealed by St. 1909, c. 504, §§ 99-102, inclusive, 
providing for the appointment of guardians for insane persons and spend- 
thrifts, and is to be construed in connection with such statutes. 

To^t^hejtate You havc rcqucsted my opinion as to the construction of St. 

^"'%^- 1909, c. 504, §§ 99, 100, 101 and 102, with reference to the fol- 

Novemb_er 1. j^^^^j^^^ questions : — 

First: must notice of guardian's petition for license to sell property 
of an insane person be given only to the overseers of the poor of the city 
or town in which said insane person resides, or to the said overseers and 
to the State Board of Insanity or only to the State Board of Insanity ? 

Second: what effect does chapter 504, Acts of 1909, sections 99 to 



DANA MALONE, ATTORNEY-GENERAL. 253 

)2 inclusive, have upon Revised Laws, chapter 145, section 41, in re- 
ird to notices to be sent to the Board of Insanity ? 

The sections of the statute referred to are as follows: — 

Section 99. If the relatives or friends of an insane person, or the 

ayor and aldermen of a city or the selectmen of a town in which he is 
1 inhabitant or resident, or the state board of insanity, apply to the 
•obate court to have a guardian appointed for him, the court shall 
luse not less than seven days' notice of the time and place appointed 
r the hearing to be given to him and to the state board of insanity, 
;cept that the court may, for cause shown, direct that a shorter notice 
? given to liim and to the said board; and if after a hearing the court 
ids that he is incapable of taking care of himself, it shall appoint a 
lardian of his person and estate. A copy of such appointment shall be 
:nt by mail by the register to the said board. If in the opinion of the 
)urt additional medical testimony as to the mental condition of the person 
Jeged to be insane is desirable, it may require such person to submit to 
camination, and may appoint one or more physicians, expert in insanity, 
) examine such person and report their conclusions to the court. Reason- 
ble expense incurred in such examination, shall be paid out of the estate 
t such person, or by the county, as may be determined by the court. 

Section 100. Upon the petition of the mayor of a city, the select- 
ion of a town, the overseers of the poor of a city or town, the state board 
f insanity, or other person in interest, the court may, if it finds that the 
'elfare of a minor, insane person, or spendthrift requires the immediate 
ppointment of a temporary guardian of his person and estate, appoint 

temporary guardian of such minor, insane person, or spendthrift, with 
r without notice, and may in like manner remove or discharge him or 
snninate the trust. A temporary guardian may proceed and continue 
1 the execution of his duties, notwithstanding an appeal from the de- 
ree appointing him, until it is otherwise ordered by the supreme judicial 
ourt, or until the appointment of a peraianent guardian, or until the 
rust is otherwise legally terminated. 

Section 101. No final account or discharge of a guardian of an in- 
ane person shall be allowed under the provisions of chapter one hundred 
nd forty-five of the Revised Laws, unless at least seven days' notice of 
he petition therefor has been given to the state board of insanity. 

Section 102. A Hcense to sell shall not be granted to the guardian 
'f a spendthrift who resides in this commonwealth, or of an insane person, 
inless seven days' notice of the petition therefor has been given to the 
iverseers of the poor of the city or town in which the spendthrift resides, 
r to the state board of insanity in the case of an insane person. Such 
lotice may be served upon any one of said overseers or board. 



254 OPINIONS OF THE ATTOENEY-GENERAL. 

In my opinion, the statute, in section 102, provides that 
notice of a guardian's petition to sell property of an insane per- 
son who resides in this Commonwealth shall be given only to 
the State Board of Insanity. The provision as to notice to the 
overseers of the poor applies only to the case of a spendthrift. 
The language of the act seems to me clear, and the construction 
indicated is in accord with the general purpose of the act, to 
bring all matters relative to the care and support of the insane 
into the hands of State officials. 

In reply to the second question, my opinion is that since 
R. L., c. 145, § 41, has been neither repealed nor amended, it is 
to be construed as still in force and to be read with the statute 
above quoted. R. L., c. 145, § 41, is as follows: — 

Such conservator shall give bond as is required of guardians of in- 
sane persons, and all provisions of law relative to the management, sale 
or mortgage of the property of insane persons shall apply to such con- 
servator. 

Since St. 1909, c. 504, contains the present provisions of law 
relative to the management, sale or mortgage of the property of 
insane persons, the provisions of sections 99-102 are applicable 
to the cases of persons for whose property conservators have 
been appointed, and notice of petitions for the disposition of 
property in the hands of conservators must be given to the 
State Board of Insanity. 

While, however, this is in my opinion clearly the effect of the 
statutes as they stand, it would seem that the situation may 
have been the result of an oversight upon the part of the Legis- 
lature. St. 1909, c. 504, expressly provides that in the case of 
a spendthrift the guardian's ntttice shall be given to the over- 
seers of the poor of the city or town where the spendthrift re- 
sides. The position of an aged person whose property is in the 
hands of a conservator is more nearly analogous to that of a 
spendthrift than that of an insane person, and as a matter of 
administration it would seem that the law should be so amended 
as to require the conservator to give notice of his petitions to the 
overseers of the poor rather than to the State Board of Insanity. 



DANA MALONE, ATTORNEY-GENERAL. 255 



i'oREiGN Corporation — Usual Place of Business — Com- 
missioner OF Corporations. 

"he words "usual place of business," in R. L., c. 126, § 4, which provides that 
every foreign corporation which has a usual place of business within the 
Commonwealth, or is engaged therein, permanently or temporarilj', in the 
construction, erection, alteration or repair of a building, bridge, railroad, 
railway or structure of any kind, shall, before doing business in this Common- 
wealth, in writing appoint the Commissioner of Corporations and his successor 
in office to be its true and lawful attorney, include a foreign corporation 
which has executive offices within the Commonwealth where a considerable 
part of the management of the business of the company is carried on. 

You have requested my opinion as to whether certain for- To the Com- 
ign pubHc service corporations for which the Stone & Webster Corporations. 
lanagement Association acts as general manager may be said No vembe r 5. 
have usual places of business in this Commonwealth, and 
hus become subject to the provisions of chapter 126 of the 
levised Laws. 

A foreign public service corporation is subject to the provi- 
ions of this chapter if it "has a usual place of business in this 
commonwealth" (section 4). The language quoted is the 
ame as that used in R. L., c. 14, § 50, and in St. 1903, c. 437, 
i58. 

Under date of Oct. 26, 1908, I advised you that "the phrase 
usual place of business' used in the Revised Laws is broad 
nough to include corporations which had within this Common- 
i^ealth offices used solely for directors' meetings or transfer 
'ffices . . .", and that these words in section 58 of the business 
orporation act "are to be construed as they were to be con- 
trued under the earlier act." In this opinion I was interpret- 
ng the law relative to mining companies. I am, however, of 
•pinion that the words "usual place of business" are to be. 
onstrued in the same way in the section now under consider- 
tion as in the sections of the Revised Laws dealing with min- 
ng companies and in the statute dealing with business corpo- 
ations. Li my opinion, if the companies in question actually 
lave executive offices here, at which offices a considerable part 
'f the management of the companies' business is carried on, 
hey have usual places of business here within the meaning of 



256 



OPINIONS OF THE ATTORNEY-GENERAL. 



chapter 126 of the Revised Laws. Cf. People v. Horn Silver 
Mining Co., 105 N. Y. 76. 

I do not attempt to pass upon the specific cases submitted, 
since each case must be determined upon its special facts. 



To the Bank 
Commissioner. 

1909 
November 11. 



Savings Banks — Authorized Investments — First Mort- 
gages OF Real Estate — Notes secured by a Mort- 
gage OF Real Estate to a Trust Company. 

Notes secured by a mortgage of a tract of land with buildings thereon to a trust 
company as trustee, as security for an issue of notes made by the owners 
of the property, of which the notes in question are a part, are not a legal 
investment for savings banks, since they do not constitute an investment 
in "first mortgages of real estate," within the provisions of St. 1908, c. 590, 
§ 68, cl. 1, defining authorized investments for savings banks in this Com- 
monwealth. 

You ask my opinion as to whether it is lawful for a savings 
bank to invest in notes secured by a mortgage of a tract of land 
with buildings thereon to a trust company, as trustee, as secur- 
ity for an issue of notes made by the owners of the property of 
which the notes referred to are a part. These notes amount 
on the whole to less than 60 per cent, of the value of the real 
estate subject to the mortgage. 

St. 1908, c. 590, § 68, cl. 1, which defines authorized invest- 
ments for savings banks, is as follows: — 

First. In first mortgages of real estate located in this commonwealth 
not to exceed sixty per cent of the value of such real estate; but not more 
than seventy per cent of the whole amount of deposits shall be so in- 
vested. If a loan is made on unimproved and unproductive real estate, 
the amount loaned thereon shall not exceed forty per cent of the value 
of such real estate. No loan on mortgage shall be made except upon 
wi-itten application showing the date, name of applicant, amount asked 
for and security offered, nor except upon the report of not less than two 
members of the board of investment who shall certify on said application, 
according to their best judgment, the value of the premises to be mort- 
gaged; and such application shall be filed and preserved with the records 
of the corporation. 

At the expiration of every such loan made for a period of five or more 



DANA M ALONE, ATTORNEY-GENERAL. 257 

ears not less than two members of the board of investment shall certify 
I wTiting, according to their best judgment, the value of the premises 
lortgaged; and the premises shall be revalued in the same manner at 
iterv-als of not more than five years so long as they are mortgaged to 
:eh corporation. Such report shall be filed and preserved with the 
icords of the corporation. If such loan is made on demand or for a 
lorter period than five years, a revaluation in the manner above pre- 
iribed shall be made of the premises mortgaged not later than five years 
"ter the date of such loan and at least every fifth year thereafter. If at 
le time a revaluation is made the amount loaned is in excess of sixty per 
■nt, or in the case of unimproved and unproductive real estate in excess 
■ forty per cent, of the value of the premises mortgaged, a sufficient 
I duction in the amount of the loan shall be required, as promptly as 
I ay be practicable, to bring the loan within sixty per cent, or in the case 
' unimproved and unproductive real estate within forty per cent, of the 
ilue of said premises. 

Savings banks cannot invest in any notes of the kind de- 
mhed unless such investment is authorized by clause 1 of 
16 above section, which authorizes investments in "first mort- 
ages of real estate located in this commonwealth, not to ex- 
3ed sixty per cent, of the value of such real estate." The 
uestion is, therefore, whether the investment described is an 
ivestment in "first mortgages of real estate." 

A similar question was considered by Attorney-General 

Lnowlton. (1 Op. Atty.-Gen. 434.) St. 1894, c. 317, § 21, 

'as then in force. It did not differ materially, so far as this 

aestion is concerned, from the present statute. In that opinion 

le then Attorney-General said : — 

I am of opinion, however, that the purchase of bonds by a savings 
ank, which are a portion of a larger number secured by a mortgage 
ven by the obligor to a third person as trustee for the benefit of bond- 
elders, is not a "loan upon mortgage," within the meaning of the stat- 
ues relating to savings banks. . . . "Loans upon first mortgages of real 
■tate," as that expression is used in the statute, are loans made to an 
dividual or a corporation upon the security of a mortgage given by the 
)rrower to the savings bank. Certain rights attach to the holder of a 
ortgage which do not appertain to the holder of a bond secured by a 
ortgage in the hands of a trustee. It was, in my opinion, the inten- 
3n of the statute to authorize savings banks to loan upon mortgages only 



258 OPINIONS OF THE ATTORNEY-GENERAL. 

when the full and unrestricted rights of mortgagees are conferred upon 
the bank, to the end that the entire control and custody should be in the 
hands of the bank. (Page 435.) 

In an opinion of Attorney-General Parker (2 Op. Atty.- 
Gen. 593) the same provision of statute, then R. L., c. 113, 
§ 26, cl. 1, was under consideration, and it was pointed out that 
in the case of an assignment of a mortgage to a savings banlc 
the section contemplates one "which should have effect to vest 
in the latter (that is, the savings bank) the full and unrestricted 
rights of a mortgagee in the premises." 

The general propositions stated in these opinions were clearly 
correct, and no reason appears for now departing from them. 

It is true that certain of the specific objections existing in 
the case considered in the opinion of the Attorney-General first 
cited (1 Op. Atty.-Gen. 434) have been done away with. The 
trustee cannot require indemnity before foreclosing; he has no 
prior lien on the property for his charges; there is no express 
exemption from responsibility for the negligence of agents and 
the trustee has not discretion as to whether or not to foreclose. 
It is to be noticed, however, that any holder of a note may re- 
quest foreclosure. The result is that some other person holding 
a note secured by the mortgage in question might insist upon 
foreclosure, although the bank did not wish it, and the bank 
could not prevent such foreclosure. The bank has not, then, 
entire control and custody as it would have in the case of a 
mortgage held by it directly. 

It is not clear to me that it is contemplated to comply with 
the provisions of the first clause of section 68, which provides 
that "no loan on mortgage shall be made except upon written 
application showing the date, name of applicant, amount asked 
for and security offered, nor except upon the report of not less 
than two members of the board of investment who shall certify 
on said application, according to their best judgment, the value 
of the premises to be mortgaged." If this is not done, clearly 
the loan would not be one authorized by the statute. It is 
further provided in the second paragraph of the first clause of 
said section that at the expiration of every such loan there must 



DANA MALONE, ATTORNEY-GENERAL. 259 

)e a revaluation by the board of investment at intervals of not 
nore than five years so long as they are mortgaged; and also 
hat "If at the time a revaluation is made the amount loaned 
3 in excess of sixty per cent of the value of the premises mort- 
;aged, a sufficient reduction in the amount of the loan shall be 
equired, as promptly as may be practicable, to bring the loan 
,ithin sixty per cent, of the value of the premises." 

The deed of trust, a copy of which is submitted to me, 
lakes no provision for such a contingency; and from a careful 
onsideration of the statute I am of opinion that such a loan 
;'as not contemplated by the Legislature, but that the words 
so long as they are mortgaged to such corporation" mean a 
irect mortgage to the savings bank itself and not to a trustee. 

am, therefore, of opinion that such an investment in the case 
escribed is not an investment in "first mortgages of real es- 
ate." As pointed out in the opinion first quoted, such forms 
f loans are becoming more frequent, and it may be that the 
/Cgislature will authorize savings banks to purchase them; but 
ntil such time comes I am of opinion that savings banks can- 
ot legally invest therein. 



Trust Company — Reserve — Time Deposit. 

n agreement in -wTiting, payable thirty days after demand or notice, is a time 
deposit payable at a stated time, within the meaning of St. 1908, c. 520, § 8, 
which provides that "every trust company . . . shall at all times have on 
hand as a reserve an amount equal to at least fifteen per cent of the aggregate 
amount of its deposits, exclusive of savings deposits and of time deposits 
represented by certificates or agreements in writing and payable only at a 
stated time." 

You request my opinion as to whether an agreement in writ- J°j^^i^fo°n''er 
ig, payable thirty days after demand or notice, is a time de- j^.^vem'ber 12. 
osit payable at a stated time, and therefore exempt from the 
iserve requirements. 

St. 1908, c. 520, § 8, provides that: — 

Every trust company doing business within the commonwealth shall 
'■> all times have on hand as a reserve an amount equal to at least fifteen 



200 OPINIONS OF THE ATTORNEY-GENERAL. 

per cent of the aggregate amount of its deposits, exclusive of savings 
deposits and of time deposits represented by certificates or agreements in 
writing and payable only at a stated time, but whenever such time de- 
posits may be withdrawn within thirty days they shall be subject to the 
reserve requirements of this act; and every trust company doing business 
in the city of Boston shall at all times have on hand as a reserve an amount 
equal to at least twenty per cent of the aggregate amount of its deposits 
computed in the same manner. 

In my opinion, this law requiring a reserve does not apply to 
deposits of the character described in the question. The de- 
posits in question cannot be withdrawn within thirty days, but 
only thirty days after demand or notice, and therefore come 
within the terms of the statute which exempts deposits payable 
at a stated time from the reserve requirement. 



Official Bond — Surety — Married Woman 

Principal. 



^YIFE OF 



Under the provisions of R. L., c. 153, § 2, that "a married woman may make con- 
tracts, oral and written, sealed and unsealed, in the same manner as if she 
were sole, except that she shall not be authorized hereby to make contracts 
with her husband," a married woman may, as surety, sign the official bond 
of her husband. 



In answer to your communication, dated November 17, in 
which you inquire whether or not a wife is eligible as surety 



To the 
Controller 
of County 
Accounts. 

November 23. upon the official boud of her husband, I beg to refer you to the 
provisions of R. L., c. 153, § 2, which section is as follows: — 

A married woman may make contracts, oral and ■wi'itten, sealed and 
unsealed, in the same manner as if she were sole, except that she shall 
not be authorized hereby to make contracts with her husband. 



This statute "enables a married woman to 'make contracts, 
oral and written, sealed and unsealed, in the same manner as 
if she were sole,' and does not require that the consideration of 
her contracts should enure to her own benefit. The provision 
that nothing in this act shall authorize her 'to convey property 
to, or make contracts with, her husband,' is evidently not in- 



I DANA MALONE, ATTORNEY-GENERAL. 261 

[tended to impose any new restriction on her capacity, but 
merely to affirm the rule of the common law, so far as her 
husband is the other party to her grant or contract; and does 
not prevent both of them from binding themselves by a joint 
promise to a third person, within the authority conferred by the 
statute. Parker v. Kane, 4 Allen, 346," {Major v. Holmes, 124 
Mass. 108.) See also Binney v. Globe National Bank, 150 Mass. 
574. 

It follows, therefore, that a married woman may, as surety, 
, sign the official bond of her husband. 



[ndustrial Education — Independent Industrial Schools 
— State Board of Education — Public Schools — 
Cities and Towns. 

The provisions in sections 2 and 3 of chapter 505 of the Acts of 1906 for the establish- 
ment of independent industrial schools, for the maintenance of which the 
Commonwealth has in part to reimburse the municipalities by which such 
schools are established, do not create distinct classes of schools after establish- 
ment, but rather prescribe methods by which such schools may be created, 
and contemplate industrial schools, the establishment of which has been 
initiated and superintended by the Commission on Industrial Education, or 
by its successor, the State Board of Education, or has been provided for by 
the municipality in which such school is located. 

An independent industrial school, so established, must be in addition to, and not 
a part of, the public school system of the city or town where such school is 
located. 

You request my opinion upon the question whether or not To^thejtate 
schools which had been maintained in certain cities as evening Education. 
schools, in which industrial education had to some extent been Januarys. 
introduced, and which were abandoned by such cities and then 
established by the Commission on Industrial Education as in- 
dependent industrial schools, to be carried on in co-operation 
with the respective cities, are independent industrial schools 
within the meaning of St. 1906, c. 505, and acts in amendment 
thereof or addition thereto. 

St. 1906, c. 505, was inartificially drawn in the first instance, 
and has been frequently amended without apparent effort to 
bring such amendments into harmony with the existing pro- 



262 OPINIONS OF THE ATTORNEY-GENERAL. 

visions of law. It seems to me, however, that chapter 505 con- 
templated that the commission should initiate and superintend 
the establishment of, and the municipalities should provide, in- 
dustrial schools which should be independent of and in addition 
to the public or common schools required by law to be estab- 
lished and maintained by the various cities and towns of the 
Commonwealth, and that the commission should have a general 
superintendence over the whole field of industrial education, and 
should have full power with respect to the disbursement of all 
money, whether appropriated by a municipality or by the Com- 
monwealth, for industrial education. See St. 1908, c. 572. 

St. 1909, c. 540, amended section 5 of chapter 505 of the Acts 
of 1906, which now reads as follows: — 

Upon certification by the board of education to the auditor of the 
commonwealth that a city, to^vn or district, either by moneys raised by 
local taxation or by moneys donated or contributed, has maintained 
an independent industrial school, the commonweahh, in order to aid in 
the maintenance of such schools, shall pay annually from the treasury 
to such cities, towns or districts a smu equal to one half the sum 
raised by local taxation for this purpose: provided, that no payment to 
any city or town shall be made except by special appropriation by the 
legislature. 

Chapter 457 of the Acts of 1909 provides for the consoHda- 
tion of the Board of Education and the Commission on Indus- 
trial Education, and there appear to be no provisions in the 
statute which affect the powers of the Board of Education, as 
successor to the Commission on Industrial Education, with re- 
spect to that branch of its work. 

After some consideration of the subject, I am of opinion that 
the independent industrial schools for the maintenance of which 
the Commonwealth is in part to reimburse the municipalities by 
which such schools are established, are industrial schools the 
establishment of which has been initiated and superintended by 
the commission in the first instance, or by its successor, the 
State Board of Education, or has been provided for by the 
municipality in which it is located; and that the provisions of 
sections 2 and 3 of said chapter 505, with respect to initiating 



DANA MALONE, ATTORNEY-GENERAL. 263 

the establishment of and providing for such schools, do not 
refer to distinct classes of schools after establishment, but to 
the methods by which independent schools may be set in 
motion. I am further of opinion that our legislation clearly 
contemplates a course of instruction and a class of schools in 
addition to the public school system as established by law in 
this Commonwealth, and that an independent industrial school 
cannot be a part of the public school system of any munici- 
pahty. What was apparently done by the Commission on In- 
dustrial Education was to arrange with a municipality that a 
part of the public school system, in which more or less industrial 
education had been introduced, should be abandoned by the 
city and taken over by the commission as an independent indus- 
trial school. In no case does it appear that an independent 
school was established in addition to the educational facilities 
already maintained in any municipality, but, on the contrary, 
such municipality discontinued a branch of its public school 
system, which was then, with some changes in courses of in- 
struction, taken over as an independent school. This, in my 
opinion, was not the intent of the statute, since in no case was 
an independent school established. The only effect of the ac- 
tion so taken was to transfer the control and the responsibility 
for the maintenance of an existing school or educational institu- 
tion; and where the statute contemplated opportunities in the 
direction of industrial studies in addition to the educational 
opportunities offered by the public schools, it results that the 
industrial courses are offered more or less at the expense of the 
instruction in the public schools, as such. I am of opinion 
that this course was not what the statute contemplated when 
it authorized the commission to initiate and superintend the 
establishment of industrial schools. If schools such as you 
describe are independent schools within the meaning of the 
statute, the cities and towns by which they are maintained may, 
of course, be reimbursed, and this reimbursement would extend 
to section 4 of chapter 572 of the Acts of 1908. If they are not, 
and from the facts presented to me they appear not to be, no 
reimbursement can be had. 



264 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Bank 
Commissioner 

1910 
January 18. 



Savings Bank — National Bank or Trust Company — Con- 
nected Offices — Elevator or Dumb-waiter. 

A connection between a savings bank having an office upon the second floor of a 
building and a national bank or trust company upon the floor below by means 
of a small lift or dumb-waiter, is forbidden by the provision of St. 1908, 
c. 590, § 19, that "no savings bank shall occupy the same office or suite of offices 
with a national bank, trust company or other bank of discount, nor any office 
directly connected by means of doors or other openings in partitions with 
the office or suite of offices used or occupied by any such national bank, trust 
company or other bank of discount." 

You ask my opinion as to whether section 19 of chapter 590 
of the Acts of 1908 is violated where there is a connection be- 
tween a savings bank, having an office on the second floor of a 
building, and a national bank or trust company underneath, 
occupying the first floor, by means of a dumb-waiter or small 
lift, sufficiently large for the transportation of money or securi- 
ties by an opening through the floor, but not large enough for 
the use of a person. 

St. 1908, c. 590, § 19, is as follows: — 

No savings bank shall occupy the same office or suite of offices with a 
national bank, trust company or other bank of discount, nor any office 
directly connected by means of doors or other openings in partitions with 
the office or suite of offices used or occupied ty any such national bank, 
trust company or other bank of discount. Any such corporation \'io- 
lating the provisions of this section shall be punished by a fine of not 
more than five hundred dollars. 



The law provides that a savings bank shall not have an office 
directly connected by means of doors or other openings in parti- 
tions with the office occupied by a national bank or trust com- 
pany. 

I am of opinion that in the case described by you there is 
such a connection, and that the law was intended to, and does, 
prohibit such connection. I do not see how such an opening 
can be made in the ceiling of the room, so as to connect the 
two institutions, if it cannot be made in the sides. I think the 
word "partition" is broad enough to cover both cases, and such 
connection is therefore prohibited by the statute. 



DANA MALONE, ATTORNEY-GENERAL. 265 



iuiLDixG Regulations — City of Boston — Boston State 

Hospital. 

he Boston State Hospital, of which the custody, control and management are 
vested, under the provisions of St. 1909, c. 504, §§ 14-23, in the State Board 
of Insanity and the trustees of said institution, is not subject to the inspection 
and regulation of the officials of the city of Boston with relation to gas, electric 
Hghting and plumbing therein. 

You have requested mv opinion as to whether the Boston To the state 

, "^ . . . Board of 

tate Hospital is subject to the regulation and inspection of the ^'^^'^q'jq^- 
flficials of the city of Boston with relation to gas, electric light- Ja nuary 27. 
ig and plumbing connected wuth the institution. 

By the provisions of St. 1909, c. 504, §§ 14-23, the custody, 
lanagement and control of the Boston State Hospital are en- 
rusted to the State Board of Insanity and to the trustees of the 
ospital. Upon the State Board of Insanity are also imposed 
he duties of supervision, of approving plans and specifications 
or buildings, of making frequent visitations and careful inspec- 
ions. 

Since the Commonwealth has taken upon itself the entire 
ustody and management of the property in question, and has 
•y the provisions of the statute referred to regulated the con- 
luct of its officers and agents in that custody and management, 
fc must be considered to have retained these matters within its 
pecial and peculiar jurisdiction. 

The statutes providing for regulation and inspection by offi- 
ials of the city of Boston constitute a delegation of the police 
)Ower of the Commonwealth, and that delegation is to be 
trictly construed. It is a presumption of law^ that the Legis- 
ature, in delegating that power, had primarily in view the 
egulation of the conduct of the citizen and not that of the 
IJommon wealth. Therefore, while the provisions of the statutes 
vith reference to regulation and inspection by city officials are 
general in their terms, and do not expressly exclude from their 
cope any property within the limits of the city, there is an 
mplied exception of the property owned and controlled by the 
Tommonwealth itself, and retained, through the provisions of 
he special statute cited, under its own jurisdiction. See 1 Op. 



266 OPINIONS OF THE ATTORNEY-GENERAL. 

Atty.-Gen. 290; Teasdale v. Newell, etc., Construction Co., 192 
Mass. 440. 

I am therefore of opinion that your question is to be answered 
in the negative. 



Taxation — Property omitted from Annual Assessment — 
Removal of Taxpayer from the Commonwealth. 

Under the provisions of St. 1909, c. 490, part I, § 85, an assessment of taxes upon 
property omitted from the annual assessment may be made, although the 
person assessed has removed from the Commonwealth prior to December 15. 

commi^foner. You requcst HIV Opinion as to whether the assessment 
Febma°ry7. of taxes authorized by St. 1909, c. 490, part I., § 85, upon 
property omitted from the annual assessment, may be made 
if the person assessed has removed from the Commonwealth 
prior to December 15. I assume, of course, that such person 
was a resident of the Commonwealth on the preceding 1st of 
May. 

The statute is as follows : — 

If the real or personal estate of a person, to an amount not less than 
one hundred dollars and liable to taxation, has been omitted from the 
annual assessment of taxes in a city or town,, the assessors shall between 
the fifteenth and twentieth days of December next ensuing assess such 
person for such estate. The taxes so assessed shall be entered on the 
tax list of the collector who shall collect and pay over the same. Such 
additional assessments shall not render the tax of such city or tovm 
invaUd although its amount, in consequence thereof, shall exceed the 
amount authorized by law to be raised. 

In my opinion, the assessment may be made. It is made as 
of May 1, and "is not to be considered as a new and inde- 
pendent assessment, but simply as the correction of a mistake 
in the regular taxation; . . . the tax of a tax-payer for the 
year is but a single tax, and a single assessment." Noyes v. 
Hale, 137 Mass. 266, 271; Harwood v. North Brookfield, 130 
Mass. 561. I find no jurisdictional objection to the correction 
of a tax assessment in the fact of a change of residence by the 
person assessed. 



DANA M ALONE, ATTORNEY-GENERAL. 267 

Constitutional Law — Constitution of the United 
States — Amendment — Income Tax. 

proposed amendment to the Constitution of the United States, vesting in Congress 
the "power to lay and collect taxes on incomes, from whatever source derived, 
■nathout apportionment among the several States, and without regard to any 
census or enumeration," was intended to empower Congress to lay and collect 
taxes on incomes without the restriction imposed by the Constitution of the 
United States in article I., § 8, that "all duties, imposts and excises shall be 
uniform throughout the United States," and § 9, that "no capitation, or 
other direct tax, shall be laid, unless in proportion to the census or enumera- 
tion hereinbefore directed to be taken." 

I am in receipt of a communication from you, dated Feb- committee on 
lary 7, in which, by direction of the committee on federal Refat^lns. 
•lations, you submit certain questions with relation to a February 9. 
lint resolution of the Congress of the United States proposing 
1 amendment to the Constitution of the United States, which 
nendment is now before that committee, and is as follows : — 

Article XVI. The Congi'ess shall have power to lay and collect 
ixes on incomes, from whatever source derived, without apportionment 
nong the several States, and without regard to any census or enumera- 
on. 

I Your communication states that the committee on federal 
'lations requires my opinion upon the "interpretation of the 
hraseology of the proposed amendment," and also requests me 
to furnish an outline of the probable effect and operation of 
leh tax, if levied, especially with reference to the existing laws 
I this Commonwealth on the subject." I am advised that the 
recise point to which your inquiry is directed is to so much of 
le proposed amendment as purports to authorize Congress to 
Ly and collect taxes on incomes "without apportionment 
mong the several States, and without regard to any census or 
numeration." 

The Constitution of the United States, in article I., section 8, 
mong other provisions, empowers Congress "to lay and collect 
ixes, duties, imposts and excises," but imposes a limitation 
lat "all duties, imposts and excises shall be uniform through- 
ut the United States." Bv section 9 of the same article it is 



26S OPINIONS OF THE ATTORNEY-GENERAL. 

provided that "No capitation, or other direct tax, shall be 
laid, unless in proportion to the census or enumeration herein- 
before directed to be taken." By section 2 of article I. it is 
provided that : — 

Representatives and direct taxes shall be apportioned among the 
several states which may be included Tvnthin this Union, according to their 
respective numbers, which shall be determined by adding to the whole 
number of free persons, including those bound to service for a term of 
years, and excluding Indians not taxed, three-fifths of all other persons. 
The actual enumeration shall be made within three years after the first 
meeting of the congress of the United States, and within every subsequent 
term of ten years, in such manner as they shall by law direct. 

Taxes levied by Congress, therefore, if direct taxes, must be 
levied in proportion to the census or enumeration provided for 
in section 2 of article I. of the Constitution of the United 
States; and if indirect taxes, they must be subject to the quali- 
fication imposed by section 8 of the same article, — that they 
shall be uniform throughout the United States. The distinc- 
tion between the two classes of taxes is well expressed in the 
case of Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 
where, in an opinion by Chief Justice Fuller (page 557), it is 
stated : — 

Thus, in the matter of taxation, the Constitution recognizes the two 
great classes of direct and indirect taxes, and lays down two rules by 
which their imposition must be governed, namely : the rule of apportion- 
ment as to direct taxes; and the rule of unifonnity as to duties, imposts 
and excises. 

The first question to be considered is whether a tax on the rents or 
income of real estate is a direct tax witliin the meaning of the Constitution. 
. . . but a tax upon property holders in respect of their estates, whether 
real or personal, or of the income yielded by such estate, and the payment 
of which cannot be avoided, are direct taxes. 

The court, in this case, decided that a tax levied by Congress 
upon the income from real estate, like a tax upon the realty 
itself, was a direct tax, and that the statute under considera- 



DANA MALONE, ATTORNEY-GENERAL. 209 

ion (28 Stat. 509, c. 349), so far as it purported to levy a tax 
ipon income so derived, was unconstitutional. 

Upon a rehearing of the same case (158 U. S. 601), the court 
leld that the tax laid by the statute above referred to, upon 
ncome derived from real estate and from invested personal 
)roperty, was invalid, for the reason that it constituted a direct 
ax, which could not be levied without apportionment among 
he several States, as provided in the Constitution. 

The purpose of the proposed amendment to the Constitution 
s, therefore, as it expressly states, to empower Congress to lay 
md collect taxes on incomes, without the restriction imposed 
Dy the constitutional provisions above stated, — that there 
)hall be an apportionment among the several States, according 
to their inhabitants, to be determined by an enumeration made 
by the United States. 

The effect and operation of an income tax laid by Congress 
under authority of the proposed amendment, if adopted, must 
be matter of pure conjecture, and must remain such until the 
passage of an act upon which an opinion may be based. It 
may be said, however, that the only effect which such an act 
could have with reference to the existing laws of this Common- 
wealth on the subject, would be the imposition of an added 
burden of taxation upon those persons w^ho fell within its pro- 
visions. 

Hours of Labor — Mercantile Establishment — Employ- 
ment OF Women — Manager of Department. 

St. 1909, c. 514, § 47, which provides that " no child and no woman shall be employed 
in laboring in a mercantile establishment more than fifty-eight hours in a 
week," does not prohibit the employment in such establishment of a woman 
as the manager of a large department, entrusted with the control and super- 
vision of numerous persons employed therein, and whose duties require the 
exercise of judgment and discretion, and do not necessarily involve either 
manual labor or labor performed within fixed hours. 

In your letter dated February 3 you request my opinion on To.t^he^^ ^^^ 
the question whether or not section 47 of chapter 514 of the ■^?^^','5^|"^„^,Vce. 
Acts of 1909, which, so far as material, provides that "no child Febru^y h. 
and no woman shall be employed in laboring in a mercantile 



270 OPINIONS OF THE ATTORNEY-GENERAL. 

establishment more than fifty-eight hours in a week," extends 
to and includes "a woman employed by a mercantile establish- 
ment as the manager and superintendent of a special depart- 
ment in such establishment, said woman being the buyer for 
such department, and having, at times, as many as four hun- 
dred employees under her direction, consisting of men, women 
and minors; she having no special hours for arriving at or leav- 
ing such establishment, the times necessary for her to be present 
being determined by herself." 

I have no hesitation in advising you that the statute to which 
you refer is not applicable to a woman w^ho is a manager and 
superintendent of a large department, entrusted with the con- 
trol and supervision of numerous persons employed therein, and 
whose duties require the exercise of judgment and discretion, 
and do not necessarily involve either manual labor or labor per- 
formed within any fixed and definite hours. 



Civil Service — State Boards, Departments or Commis- 
sions — Authority to require Special Qualifications 
IN Applicants for Appointment qr Employment. 

No State board, department or commission is authorized to require of applicants 
for appointment or employment qualifications other than those required by 
the civil service law and rules, and the Civil Service Commission in its dis- 
cretion may or may not accede to a requisition calling for special qualifications. 

J°Repr"°"'^ I have the honor to acknowledge the receipt of an order 
^"'f^Vo*"'" adopted by the House of Representatives, which reads as fol- 

February21. l^^^^. _ 

Ordered, That the Attorney-General inform the House of Represen- 
tatives what boards, departments and commissions, if any, of the Com- 
monwealth can specially require of applicants for positions under them 
qualifications other than required by the Civil Service Commission, and 
to what extent they may go in those quaUfications; also, to what extent 
the Civil Service Commission are bound to accede to requisitions made 
for certain qualifications by boards, departments and commissions in 
making up or advertising notices of examinations for applicants for 
positions so qualified by departments, boards and commissions. 



I 



DANA MALONE, ATTORNEY-GENERAL. 271 

In reply thereto I would inform the Honorable House of Rep- 
sentatives that section 6 of chapter 19 of the Revised Laws 
ovides : — 

The commissioners shall from time to time prepare rules regulating 
e selection of persons to fill appointive positions in the government of 
e conunonwealth and of the several cities thereof and the selection of 
rsons to be employed as laborers or otherwise in the service of the 
mmonwealth and said several cities, and altering, rescinding, amending 
adding to the rules now estabhshed. Such rules may be of general 
Umited application and shall take effect only when approved by the 
vemor and comicil. 

In pursuance of the authority given the Civil Service Com- 
ission by said section, said commission has adopted certain 
des. The rule relating to special qualifications, under which 
16 commission acts, is Rule 22, section 1: — 

Whenever any appointing officer shall make requisition not expressly 
illing for women, the commission shall certify from such list as it shall 
3em suitable only the names of all veterans who have passed the examina- 
on for the position sought, in the order of the respective standing of 
! ich veterans upon the eligible list, and the position, if filled, must be 
'< lied by the appointment and employment of some veteran so certified, 
ad in case there is no such veteran upon the fist, then the commission 
lall certify, from such list as it shall deem suitable, the names of the 
iree persons most ehgible. If in any requisition a request shall be made 
)r the certification of persons possessing a special qualification or experi- 
ace, the commission may in its discretion include in the list of names 
irtified the name of one or more persons possessing such special 
ualification or experience. 

I am informed that the practice of the Civil Service Commis- 
lon is as follows: when a requisition is received from an ap- 
ointing official to fill a vacancy, the commission certifies from 
ach list as it deems most suitable, first certifying the names 
f all veterans, and if there are no veterans, next the names of 
he three persons standing highest on the list, who have signi- 
ed a willingness to accept such position at the rate of pay 
tated in the requisition. If the appointing official states in his 



272 OPINIONS OF THE ATTORNEY-GENERAL. 

requisition that he desires persons possessing special qualifica- 
tions, the commission acts upon his request, either granting or 
refusing it, after consideration of the reasonableness of the re- 
quest, the public needs in general, the special needs of the 
vacant position, the respective rights of the other eligibles on 
the list, and the question whether such request appears to be 
an attempt to reach some particular person on the list, in eva- 
sion of the intent of the civil service law. If appointing officials 
ask for more extreme special qualifications than the commission 
considers reasonable, or than it is advised by its experts are 
reasonable, it prepares its examinations irrespective of such 
requests. Examination papers, when upon technical subjects, 
are prepared by experts, or persons technically or specially fitted 
by training or experience to perform the task. Thus, civil 
engineering papers are prepared largely by civil engineers out- 
side of the oflfice of the commission; visitors' papers are prepared 
by persons specially trained in charitable work; papers for 
architectural positions are prepared by architects. 

In reply to the specific questions asked by the Honorable 
House of Representatives, as to what boards, departments and 
commissions, if any, of the Commonwealth, can specially re- 
quire of applicants for positions under them qualifications other 
than required by the Civil Service Commission, and to what 
extent they may go in those qualifications, I would say that no 
boards, departments and commissions of the Commonwealth 
can specially require of applicants qualifications other than 
those required by the civil service law and rules; and as to what 
extent the Civil Service Commission is bound to accede to 
requisitions made for certain qualifications by boards, depart- 
ments and commissions in making up or advertising notices of 
examinations for applicants for positions so qualified by depart- 
ments, boards and commissions, I would inform the Honorable 
House of Representatives that the civil service law and rules do 
not in any case bind or make it compulsory upon the Civil 
Service Commission to accede to such requisitions. The law 
and rules give the commission the right and authority to so 
accede at its discretion; and in the exercise of its discretion it 



I DANA M ALONE, ATTORNEY-GENERAL. 273 

lould be governed by the needs of the pubHc service, as pre- 
?nted by the appointing officials or by others specially fitted 
) advise with it in the matter. 



ONSTITUTIONAL LaW — GrEAT PoND — RiGHT OF LEGISLA- 
TURE TO DETERMINE HEIGHT AT WHICH ^YATER SHALL BE 
MAINTAINED. 

is within the constitutional power of the Legislature to pass an act establishing 
a point upon the shores of a great pond below which the waters therein shall 
not be drawn by persons entitled to the use thereof, if adequate provision 
is made for compensation if the condition thus established interferes with 
vested rights of riparian owners, or affects prescriptive or granted rights to 
lower the waters of such ponds. 

You inquire, on behalf of the joint standing committee on To the Com- 
mittee on 
arbors and public lands, whether or not a proposed act, en- pybH°''Land3 

1910 



tied "x\n Act relative to establishing a low-water mark in 
ake Attitash in the towns of Amesbury and ]Merrimac," would 
5 legal and constitutional. 
This bill provides, in section 1, that: — ■ 

The low-water mark in Lake Attitash, situated in the towns of Ames- 
ary and Merrimac, is hereby estabUshed at the low-water mark where 
le lake originally discharged into Powow river at the flume at Tuxbrny's 
3nd; the low- water mark being the bed of the brook at the bridge, so 
illed, the original discharge of the lake into Tuxbury's pond. 

In sections 2 and 3 it is in substance provided that the Board 
:' Harbor and Land Commissioners shall fix the elevation of 
ich low-water mark with reference to some suitable base, and 
uly record the same; and that such Board, subject to the ap- 
roval of the Governor and Council, shall take, by eminent do- 
lain or otherwise, such land at the outlet of the lake as may be 
ecessary, and shall construct a suitable dam to prevent the 
rawing of the water below the mark so estabhshed. 

Section 4 provides, in part, that: — 

The commonwealth shall pay all damages to property sustained by 
'ny pQrson or corporation by the taking of any land, right of way, water 
ght or easement or by any other thing done under the authority of this act. 



March 10. 



274 OPINIONS OF THE ATTORNEY-GENEEAL. 

and due provision is made for the determination of such damage 
and for the vesting of title of the property so taken in the Com' 
monwealth. 

By section 6 it is provided that all expenses incurred by said 
Board under the provisions of this act shall be reimbursed to 
the Commonwealth by the towns of Amesbury and Merrimac, 
the proportion to be determined apparently by the Board of 
Harbor and Land Commissioners. 

Your letter further states that the passage of this act is op 
posed by the Hamilton Woolen Company, located in the town 
of Amesbury, on the ground that it is the owner and assignee 
of a grant made by said town of the right to draw the waters 
of Lake Attitash below the level to be established, and that it 
has acquired further rights in the premises by prescription. 

The form of the proposed act appears to have been copied 
from chapter 539 of the Acts of 1909, which was an act to eS' 
tablish a low-water mark in Lake Quannapowitt in the town of 
Wakefield. The determination of the precise location of the 
"low-water mark" upon the shores of a great pond, in its or- 
dinary signification, is ordinarily a question of fact as to where 
upon such shores may be found the point below which the 
waters are not accustomed to fall. See Paine v. Woods, 108 
IMass. 160, 171; Wcderman v. Johnson, 13 Pick. 261, 265; West 
Roxhiiry v. Stoddard, 7 Allen, 158, 167; East Boston Co. v. Com- 
monwealth, 203 Mass. 68. 

It appears, however, from section 3 of the proposed act, that 
its real purpose is to establish a point upon the shores of Lake 
Attitash below which the waters therein shall not be drawn by 
persons entitled to the use thereof. This, in my opinion, is 
within the power of the Legislature. See Attorney-General v. 
Jamaica Pond Aqueduct, 133 Mass. 361. It follows, therefore, 
that the passage of an act establishing the height at which the 
water in a great pond must be permanently maintained, so far 
as concerns the use thereof, which is, in my opinion, the true 
purpose and eftect of the act under consideration, is within the 
constitutional power of the Legislature, if adequate provision is 
made for compensation if the condition thus established inter 



DANA MALONE, ATTORNEY-GENERAL. 275 

res with vested rights of riparian owners, or affects prescrip- 
/e or granted rights to draw lower the waters of the pond. 
■e Attorney-General v. Revere Copper Co., 152 Mass. 444; R. S., 
I 119, § 12; St. 1867, c. 275. In this instance the proposed act 
idoubtedly contains a clause which provides compensation for 
t mage occasioned by anything which may be done under its 
ovisions, which would apply if private rights in land or water 
;hts were affected by the establishment of the so-called "low- 
iter mark." 

I desire to point out, however, that if, as I am advised, the 
amilton Woolen Company claims to have prescriptive or other 
^hts to draw the water of Lake Attitash below the low-w^ater 
ark now to be designated, the Commonwealth would undoubt- 
ly be required to engage in extensive litigation for the deter- 
ination of such claim, which, if established, might require the 
wns of Amesbury and Merrimac to reimburse to the Common- 
salth a very considerable sum as damages for the interference 
erewith. In view of the fact that the existing rights of the 
amilton Woolen Company, or of an\^ other persons who may 
aim the right to use the waters of Lake Attitash, might be 
itermined by an information brought by the Attorney-Gen- 
al, and any unwarranted use thereof be terminated (Attorney- 
jneral v. Jamaica Pond Aqueduct, supra; Attorney-General v. 
evere Copper Co., supra), it should be carefully considered 
hether or not it is expedient to pass statutes like St. 1909, 
539, or the act now proposed, which provide compensation for 
images, without ascertaining to what extent the Common- 
ealth or the several towns interested therein may be called 
)on to reimburse persons or corporations for damages to prop- 
ty sustained by anything done under the authority of their 
i'ovisions. 



276 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the House 
Committee on 
Bills in the 
Third Read- 
ing. 

1910 
April 11. 



Constitutional Law — Constitution of the Unitei 
States — Discrimination — Proposed Act forbiddin( 
Women under Twenty-one to enter Chinese Res 
taurants. 

A bill providing that "it shall be unlawful for any woman under twenty-one year 
of age to enter a Chinese restaurant or hotel or to be served with food o 
drink therein," and that "it shall be unlawful for the proprietor of any sue 
hotel or restaurant to admit any woman under twenty-one years of ag 
thereto or to serve her with food or drink therein," and further providin 
that "violations of this act shall be punished by fine or imprisonment, 
the discretion of the court," is in effect a discrimination against the Chines 
by reason of their nationality, and therefore, if enacted, would be in \aolatio 
of the Fourteenth Amendment to the Constitution of the United States, an 
therefore unconstitutional and void, i 

I have to acknowledge the receipt of a communication i: 
which you state that the committee on bills in the third reac 
ing desires my opinion upon the constitutionality of Hous 
Bill 1372, entitled, "An Act relative to the admission of wome: 
under twenty-one to certain restaurants." This act provide; 
in section 1, that: — 

It shall be unlawful for any woman under twenty-one years of age t 
enter a Chinese restaurant or hotel, or to be served with food or drin 
therein; and it shall be unlawful for the proprietor of any such hotel 
restaurant to admit any woman under twenty-one years of age thereto 
or to serve her with food or drink therein. 

Section 2 is as follows : — 

Violation of this act shall be punished by fine or imprisonment, at th' 
discretion of the court. 

The proposed act does not define what constitutes " a Chines 
restaurant or hotel," but I assume that by the words quoted i 
was intended to designate a restaurant or hotel maintained b. 
Chinese, in which food is prepared and served in the Chines 
manner, and that it does not extend to or include restaurants oi 
hotels kept by others than Chinese. 



' See Opinion of the Justices, 207 Mass. 601. 



DANA MALONE, ATTORNEY-GENERAL. 277 

If the proposed act is to be sustained, it must be as an exer- 
se of the police power, which includes all matters "which 
feet the lives, limbs, health, comfort and welfare of all in their 
arsons and their property" {Covimoniuealth v. Bearse, 132 
' [ass. 542) ; and of these matters the Legislature must, in 
! le first instance, be the judge. As was said by Chief 
istice Shaw, in Commonwealth v. Alger, 7 Cush. 52, at page 
)2: — 

Having once come to the conclusion that a case exists, in which it is 
mpetent for the Legislature to make a law on the subject, it is for 
' em, under a high sense of duty to the public and to individuals, with a 
cred regard to the rights of property and all other private rights, to 
ake such reasonable regulations as they may judge necessarj' to protect 
iblic and private rights, and to impose no larger restraints upon the 
ie and enjoyment of private property than are in their judgment strictly 
;cessary to preserve and protect the rights of others. 

The exercise of this power is, however, subject to certain limi- 
tions. The purpose for which it is invoked must fall within 
lose above enumerated, and the means and manner of its ap- 
ication must be reasonable, and must affect equally all persons 
id property under the same circumstances and conditions, 
he Legislature may not, under the guise of the police power, 
lact statutes which operate for or against any particular per- 
•ns within the same general class and under the same circum- 
ances. Darbier v. Connolly, 113 U. S. 27; Soon Tling v. 
\rowley, 113 U. S. 703. Legislation which discriminates against 
ly person in respect of his freedom of action or enjoyment of 
'operty is in violation of that part of the Fourteenth Amend- 
ent of the Constitution of the United States which pro- 
des: — 

' )r shall any state deprive any person of life, lil^ert)', or property, without 
10 process of law, nor deny to any person within its jurisdiction the 
|ual protection of the laws. 

The protection afforded by this provision extends to all per- 
•ns within the Commonwealth, and may be enforced by ap- 



278 OPINIONS OF THE ATTORNEY-GENEKAL. 

propriate legislation of Congress. As was stated in Yick Wo v. 
Hopkins, 118 U. S. 356, at page 369: — 

These provisions are universal in their application to all persons within 
the ten-itorial jurisdiction, without regard to any differences of race, of 
color or of nationality; and the equal protection of the laws is a pledge 
of the protection of equal laws. It is accordingly enacted by § 1977 of 
the Revised Statutes, that "all persons within the jurisdiction of the 
United States shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evidence, and to the 
full and equal benefit of all laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, and shaU be subject 
to like punishment, paina, penalties, taxes, licenses, and exactions oi 
every kind, and to no other." 

If the proposed act results in an unfair or unreasonable limi- 
tation upon the rights and privileges of Chinese w'ithin tht 
Commonwealth to hold property and to do business therein, oi 
unjustly discriminates against them as a class, it is in contra- 
vention of the amendment above quoted, and is, therefore, void 

To justify the bill now before me, it would be necessary t( 
show that restaurants or hotels kept by Chinese may, as f 
class, be distinguished from all other restaurants or hotels, witl 
respect to the danger to women under the age specified whi 
may resort to them for food or entertainment. It is not enougl 
that in individual cases restaurants or hotels kept by Chinese 
by reason of the manner in which they were maintained, hav( 
been found to be dangerous to the morals of such women, aiK 
therefore, to the public; for without doubt as much may b( 
said of some hotels or restaurants kept by others than Chinese 
The statutes already require innholders and common victualer: 
to secure a license before transacting business, and in individua 
cases this license may be withheld if the public good does no 
require its issuance. R. L., c. 102, §§ 1, 2. In order to justif: 
a restriction applicable alone to restaurants or hotels kept b; 
Chinese, it must appear that such restaurants or hotels, as ; 
class, by reason of being maintained by Chinese, are more dan 
gerous to the morals of the public than all other restaurants o 
hotels. If such is not the fact, the proposed act in operatioi 



I 



' DANA M ALONE, ATTORNEY-GENERAL. 279 

Ind effect discriminates against the Chinese as such, and is un- 
DHstitutional. There are no facts before me from which such 
distinction may properly be drawn; and I am constrained to 
le opinion that the proposed bill, in effect, discriminates 
gainst the Chinese by reason of their nationality, and there- 
)re, if passed, would be unconstitutional and void. 



iremen's Relief Fund — Injuries suffered in the Per- 
formance OF Duty — Drill or Exercise of Horses. 

. L., c. 32, § 73, as amended by St. 1903, c. 253, creating a firemen's relief fund, 
to be used "for the relief of firemen . . . who may be injured in the perform- 
ance of their duty at a fire or in going to or returning from the same," does 
not authorize the use of such fund for the relief of firemen who may be injured 
while taking part in drill, or while exercising the horses of the department 
by order of the superior officers. 

You have asked my opinion as to whether section 73 of chap- To the Com- 

„..._ Ill 1 r>-oPi missioners of 

iT 32 01 the Revised Laws, as amended bv chapter 2o3 or the the Firemen's 

' . " . Relief Fund. 

cts of 1903, may properly be interpreted to authorize pay- ^ i^w^^ 
lents from the firemen's relief fund for the relief of firemen who 
re injured, not in the performance of their duty at a fire or in 
Ding to or returning from the same, but in the performance of 
leir duty at a fire drill, which has been instituted for the pur- 
ose of increasing the efficiency of the fire department, or in 
xercising the horses of the department, or in doing similar 
lings by order of the superior officers of the department. 
The statute provides as follows : — 

Such fund shall be used for the relief of firemen, whether members 
:'. said association or not, who may be injured in the performance of their 
uty at a fire or in going to or returning from the same, and for the relief 
' the widows and children of firemen killed in the perfonnance of such 
uty, in the manner and to the amount determined by a board of five 
ersons, . . . 

In my opinion, the statute may not be so interpreted. Its 
nguage is clear, and the scope of its provisions is definitely 
mited by that language. 



280 OPINIONS OF THE ATTORNEY-GENERAL. 

Firemen who are injured while taking part in a drill, or 
while exercising the horses of the department by order of the 
superior officers, may undoubtedly be considered as having been 
injured in the performance of their duties as firemen; but the 
statute, as it stands, makes provision for the relief of those only 
who are injured in the performance of certain specified duties, 
namely, duties performed at a fire or in going to or returning 
from the same. 

Constitutional Law' — Taxation — Boston Railroad Hold- 
ing Company — Excise — Bonds — Exemption from 
Local Taxation. 

A bill which establishes a special and distinct method for the taxation of the Boston 
Railroad Holding Company, incorporated under the provisions of St. 1909, 
c. 519, for the sole purpose of acquiring and holding the capital stock, bonds 
and other evidences of indebtedness of the Boston & Maine Railroad, and 
of voting upon the stock and collecting and receiving dividends and interest 
upon the stock, bonds and other evidences so acquired and held, by imposing 
an excise tax upon such corporation and exempting its bonds from local 
taxation, is objectionable upon constitutional grounds; first, because the 
franchise to acquire and hold stock, bonds and other securities, exercised by 
such corporation, is not to be distinguished from the franchises of other cor- 
porations which have been or may be organized for similar purposes, and the 
imposition of such excise upon a single corporation, therefore, would not be 
reasonable, within the meaning of article IV., section I., chapter I., part the 
second of the Constitution of Massachusetts, which authorizes the Legislature 
to impose and le^'y^ reasonable duties and excises; and second, because there 
is no valid distinction between the bonds of such corporation and the bonds 
of any other business corporation which may hold securities of like character, 
and the exemption from taxation of such bonds would have an effect to render 
the general tax on property throughout the Commonwealth unequal and 
disproportionate, and so be obnoxious to the Constitution; and the creation 
of such exemption, therefore, would exceed the constitutional authority of 
the Legislature "to impose and levy proportional and reasonable assessments, 
rates, and taxes, upon all the inhabitants of, and persons resident, and estates 
lying, within the said Commonwealth," as defined in the Constitution of 
Massachusetts, part the second, chapter I., section I., article IV. 

To the House J am in receipt of vour communication of April -i, which is as 

ivOmmittee on x » i- ^ 

^^^7o follows: — 



Committee on 
Rules. 
1910 
April 22. 



The committee on rules on the part of the House has decided to submit 
to you the enclosed bills. They wish your opinion upon their constitu- 
tionality. If these particular bills are not constitutional, can you suggest 
such modification, carrying out the purpose of the bills, as will render them 
constitutional, either by making the bills general, or in any other way? 



DANA MALONE, ATTORNEY-GENERAL. 281 

The bills to which you refer are alternative drafts of an act 
elating to the taxation of the Boston Railroad Holding Com- 
any. This company was incorporated under the provisions of 
it. 1909, c. 519, "for the sole purpose of acquiring and holding 
he whole or any part of the capital stock, bonds and other evi- 
ences of indebtedness of the Boston and Maine Railroad, and 
f voting upon all certificates of stock so acquired and held, and 
f receiving and collecting dividends and interest upon said 
tock, bonds and other evidences of indebtedness." (Section 1.) 

The corporation so organized was expressly made subject to 
ubstantially all the provisions of St. 1903, c. 437, known as the 
business Corporation Law, and acts in amendment thereof, so 
ar as applicable to domestic corporations, including the provi- 
ions therein which relate to taxation, which now appear in St. 
909, c. 490, part III. The act of incorporation above cited 
mposes certain limitations upon the powers of the Boston Rail- 
oad Holding Company which do not apply generally to busi- 
less corporations. Such are the provisions that a majority of 
he officers and directors of the Boston Railroad Holding Com- 
)any shall be citizens of Massachusetts, that the principal office 
md place of business of such corporation shall be in the city of 
Boston, and that all meetings of the directors shall be held in 
his Commonwealth (section 2); that the stock of the Boston & 
Maine Railroad which may be acquired by the Boston Railroad 
lolding Company shall not be sold by it without express au- 
hority from the Legislature, and that the bonds, notes or 
)ther evidences of indebtedness of such railroad acquired by 
uch company shall not be disposed of without the approval of 
he Board of Railroad Commissioners (section 3); and that the 
;hares of stock of such company shall not be sold or transferred 
nitil they have been guaranteed by a railroad corporation in- 
•orporated under the laws of the Commonwealth (section 4). 
rhe Boston Railroad Holding Company is therefore a corpora- 
:ion organized under special law for a specific and limited pur- 
pose, subject to substantially all the provisions of the Business 
corporation Law and to certain further express restrictions; and 
:he single purpose for which it was organized is doubtless one 



282 OPINIONS OF THE ATTORNEY-GENERAL. 

for which, apart from the prohibition in St. 1907, c. 585, § 1, 
which in my opinion, does not affect the question herein under 
consideration, a corporation might have been organized .under 
the Business Corporation Law. 

The bills submitted to me make special provision for the tcixa- 
tion of the Boston Railroad Holding Company by name, and 
cannot apply to any other corporation now existing or which 
may hereafter be created. I quote them in full. 

One draft is as follows : — 

Section 1. The Boston Railroad Holding Company shall annually 
between the first and tenth days of April make a return to the tax com- 
missioner, under oath of its treasurer, setting forth as of the first day of 
April of the year in which the return is made: — 

First, the total authorized amount of the capital stock of said Boston 
Railroad Holding Company; the amount issued and outstanding and 
the amomit then paid thereon; the classes, if any, into which it is divided; 
the par value and number of its shares; the market value of the shares of 
its stock and of each class of its stock, if there are two or more classes; 

Second, the total amount outstanding of the bonds, notes and other 
evidences of indebtedness of said Boston Railroad Holding Company; 

Third, the market value of all the shares of stock in other corporations 
held by said Boston Railroad Holding Company which, if owned by a 
natural person resident in tliis commonwealth, would not be liable to 
taxation. 

Sec;TI0N 2. The tax commissioner shall estimate from the returns 
or otherwise the fair cash value of all of the shai-es constituting the capital 
stock of said Boston Railroad Holding Company. To such value there 
shall be added the total amount outstanding of the bonds, notes and other 
evidences of indebtedness of said Boston Railroad Holding Company, 
and from the sum thereof there shall be deducted the market value of 
securities o^\Tled by it which if owned by a natural person resident in this 
commonwealth would not ])e liable to taxation. The remainder shall 
be taken for the purposes of this act as the true value of the corporate 
franchise of the said Boston Raihoad Holding Company. 

Section 3. The said Boston Railroad Holding Company shall annually 
pay an excise upon the value of its corporate franchise as detennined 
above at the rate determined in the manner provided in section forty- 
three of part HI. of chapter four hundred and ninety of the acts of the 
year nineteen hundred and nine; provided, however, that the total amount 
of tax to be paid by the said Boston Railroad Holding Company in any 
year shall amount to not less than one-tenth of one per cent of the fair 



DANA MALONE, ATTORNEY-GENERAL. 2S3 

■ cash value of its capital stock at the time of said assessment as found by the 
tax commissioner. 

Section 4. No taxes shall be assessed in a city or town upon the 
shares in the capital stock, bonds or other evidences of indebtedness of 
the said Boston Railroad Holding Company for state, county, city, town 
or other purposes, for any year for which the said Boston Railroad Hold- 
ing Company shall pay to the treasurer and receiver general the excise 
upon its corporate franchise as herein provided. 

Section 5. This act shall take effect upon its passage. 

The other draft, which contains a more detailed method of 
valuation, is as follows: — 

Section 1. The Boston Railroad Holding Company shall annually 
between the first and tenth days of April make a return to the tax com- 
missioner under oath of its treasurer setting forth as of the first day of 
April of the year in which the return is made : — 

First, The total authorized amount of the capital stock of the corpora- 
tion; the amount issued and outstanding and the amount then paid 
thereon; the classes, if any, into which it is divided; the par value and 
number of its shares; the market value of the shares of its stock or of 
each class of its stock if there are two or more classes. 

Second, The total amount of the bonds, notes and other evidences 
of indebtedness of said Boston Railroad Holding Company and a state- 
ment of the market value of such bonds, notes or other evidences of in- 
debtedness upon the said first day of April. 

Tliird, A statement in such detail as the tax commissioner may re- 
quire of the market value as of said first day of April of all the shares of 
stock of other corporations owned by said Boston Railroad Holding Com- 
pany wliich shares if owned by a natural person resident in this common- 
wealth would not be liable to taxation. 

Section 2. The tax commissioner shall ascertain from the returns 
or otherwise the true market value of the shares of said Boston Railroad 
Holding Company and shall estimate therefrom the fair cash value of all 
of said shares constituting its capital stock on the preceding fu'st day of 
April. The tax commissioner shall also ascertain from the returns or 
otherwise the true market value of all the bonds, notes and other evi- 
dences of indebtedness of said Boston Railroad Holding Company and shall 
estimate therefrom the fair cash value of all of such bonds, notes and other 
evidences of indebtedness as of the preceding first daj^ of April. The 
sum of such fair cash value of the shares of stock and such fair cash value 
of the bonds, notes and other evidences of indebtedness of the Boston 
Railroad Holding Company shall for the purposes of this act be taken as 



284 OPINIONS OF THE ATTORNEY-GENERAL. 

the true value of its corporate franchise. From the value of the cor- 
porate franchise determined as above there shall be deducted the value as 
found b}^ the tax commissioner of the securities o\vned by the Boston 
Railroad Holding Company which securities if owned by a natural person 
resident in this Commonwealth would not be liable to taxation. The 
value remaining after making the deduction herein provided shall be 
taken for the purposes of this act as the true value of the corporate excess 
of the Boston Railroad Holding Compan5^ 

Section 3. Said Boston Railroad Holding Company shall annually 
pay to the treasurer and receiver-general an excise upon the value of its 
corporate excess as determined above at the rate provided for in section 
forty-three of part III. of chapter four hundred and ninety of the acts of 
the year nineteen hundred and nine; provided, however, that the total 
amount of the tax to be paid by said Boston Railroad Holding Company 
in any year shall amount to not less than one-tenth of one per cent of the 
value of the corporate franchise determined as is herein provided. 

Section 4. No taxes shall he assessed in a city or town for State, 
county or town purposes upon the shares in the capital stock or upon 
the bonds, notes and other evidences of indebtedness of said Boston 
Railroad Holding Company in any year in which said company shall pay 
to the treasurer and receiver-general the tax provided for by this act. 

Section 5. This act shall take effect upon its passage. 

The material difference between the two bills is that the mini- 
mum limit of taxation under the second is one-tenth of one per 
cent, of the value of the corporate franchise, which is the sum 
of the fair cash value of the shares of stock and the fair cash 
value of the bonds, notes and other evidences of indebtedness of 
the corporation. The minimum limit in the first bill is one- 
tenth of one per cent, of the fair cash value of the capital stock 
alone. It would result from this difference that if the Boston 
Railroad Holding Company should issue large amounts of bonds, 
the minimum limit of taxation under the second bill would be 
much higher than under the bill first quoted; and this difference 
is important, for the reason that it is unlikely, under either bill, 
that the tax will be in excess of the minimum therein estab- 
lished. 

It is to be observed that neither bill provides a method for 
the collection of the tax imposed; but I assume that this defect 
will be remedied, and that the question may be considered as if 



I 



DANA MALONE, ATTORNEY-GENERAL. 285 

due provision therefor had been made. It is to be further ob- 
served that no express provision is made in either bill for the 
repeal of existing provisions of law relating to taxation to which 
the Boston Railroad Holding Company is now subject. In the 
event that either bill was enacted in its present form, the court 
would doubtless hold, however, that the taxes were not cumu- 
lative, and that the existing provisions of law were repealed by 
implication. See Metropolitan Life Insurance Co. v. Common- 
■ nlth, 198 Mass. 466. 

The proposed act, under either draft, will accomplish two re- 
sults: first, it will impose an excise upon the Boston Railroad 
Holding Company; and second, it will exempt from local taxa- 
tion the bonds issued by that company. The question sub- 
mitted involves a consideration of the constitutionality both of 
the excise and of the exemption from local taxation. I con- 
sider first the ciuestion of the constitutionality of the excise. 

The burden sought to be estabhshed by the proposed act is 
clearly not proportional, and does not fall within the constitu- 
tional requirement that taxes be "proportional and reasonable." 
Constitution of Massachusetts, part the second, chapter I., sec- 
tion I., article IV. It can be sustained, if at all, only under the 
provision of the Constitution authorizing the Legislature to " im- 
pose and levy reasonable duties and excises." Constitution of 
Massachusetts, part the second, chapter I., section I., article IV. 
The power to impose an excise upon corporations under this 
provision is well settled. Portland Bank v. Apthorp, 12 Mass. 
252; Commonicealth v. Hamilton Manufacturing Co., 12 Allen, 298; 
Minot V. Winthrop, 162 Mass. 113, 120. The only limitation 
upon the power of the Legislature in the premises is that the 
excise must be "reasonable". As was said in Connecticut In- 
surance Co. V. Commonwealth, 133 Mass. 161, at page 163: — 

The power to determine what caUings, franchises or privileges, or, to 
use the langiiage of the Constitution, " commodities," shall be subjected 
to an excise, and the amount of such excise, belongs exclusively to the 
Legislature. The provision that it must be "reasonable " was not designed 
to give to the judicial department the right to revise the decisions of the 
Legislature as to the policy and expediency of an excise. Great latitude 



286 OPINIONS OF THE ATTORNEY-GENERAL. 

of discretion is given to the Legislature in determining not only what 
"commodity" shall be subjected to excise, but also the amount of the 
excise and the standard or measure to be adopted as the foundation 
of the proposed excise. The court cannot declare a tax or excise illegal 
and void, as being unreasonable, unless it is unequal, or plainly and 
grossly oppressive, and contrary to common right. 

In my opinion, the basis of computation provided for in the 
draft submitted to me furnishes a fair and proper method of 
valuing the franchise. See Connecticut Insurance Co. v. Com- 
viomcealth, supra, p. 166; see also Commonwealth v. Berkshire 
Life Insurance Co., 98 Mass. 25. And, apart from the question 
of inequahty, it would seem to be unobjectionable. 

The test of equality, which must be satisfied in order that an 
excise may be reasonable, is that it " operates alike upon all cor- 
porations or associations which exercise the franchise or function 
which is intended to be taxed." Connecticut Insurance Co. v. 
Commomcealth, supra. As was said by Chief Justice Parker in 
Portland Bank v. Apthorp, supra: — 

Taxes of this sort must undoubtedly be equal; that is, they must 
operate upon all persons who exercise the employment which is so taxed. 
A tax upon one particular moneyed capital would unquestionably be 
contrary to the principles of justice, and could not be supported; but 
a tax upon all banks we think justifiable, upon the grounds we have stated. 

See Oliter v. Washington Mills, 11 Allen, 268. 

The franchise or function exercised by the Boston Railroad 
Holding Company upon which the proposed excise is to be 
based is the power to acquire and hold as a corporation the 
stock, bonds and other evidences of indebtedness of a single 
corporation, the Boston & Maine Railroad. The power to 
acquire and hold stock, bonds and other securities, as I am 
advised, is now enjoyed by many corporations formed under 
the Business Corporation Law, and may be contained in the 
articles of incorporation of any corporation hereafter formed 
under such law. There is no reason why a corporation might 
not be organized for the sole purpose of acquiring and holding 
this form of property; and, as I have already said, the Boston 



DANA MALONE, ATTORNEY-GENERAL. 287 



lailroad Holding Company might have been incorporated 
nder the general law. See, however, St. 1907, c. 585, cited 
•I pro. 
I am constrained to say that I can perceive no valid distinc- 
on between the Boston Railroad Holding Company and other 

; orporations organized for similar purposes, which would serve 

' D justify a distinction in the method of taxation. The ques- 
on in this case, as in all similar cases, is one of degree. Dif- 
'rent classes of corporations have been subjected to different 
)rms of excise without contravening the constitutional require- 
lents hereinbefore referred to; thus, for example, one form of 
vccise is applicable to savings banks, another to insurance com- 

, anies and a third to business corporations. In each case, 
owever, the difference has been based upon some distinction in 

I iie extent or character of the franchise or function which it was 
itended to tax. In the case before me I am unable to discover 
uch a distinction- between this corporation and others which 
ave been or may be formed with like powers, as to justify a 

' istinct method of taxation. 

It remains to consider the provision to be found in the fourth 
ection of each of the bills, exempting the bonds of the Boston 
lailroad Holding Company from local taxation. 

All taxes must be proportional and reasonable in their appli- 
ation, under the constitutional authority of the Legislature "to 
npose and levy proportional and reasonable assessments, rates, 
nd taxes, upon all the inhabitants of, and persons resident, and 
states lying, within the said commonwealth" (Constitution of 
■lassachusetts, part the second, chapter I., section I., article 
v.); and if an exemption from taxation of this nature did not 
ave the effect to "render the general tax on property through- 
ut the Commonwealth unequal and disproportionate" {Com- 
wmcealth v. The People's Five Cents Savings Bank, 5 Allen, 
28, 437), it would be unobjectionable. As was pointed out in 
he Opinion of the Justices, 195 Mass. 607, at page GU: — 

If a reasonable excise tax is lawfully imposed upon a conwration, 
ccording to the amount of its property or business, it is in the power 
f the Legislature, for the purpose of avoiding double taxation, to exempt 



2S8 OPINIONS OF THE ATTORNEY-GENERAL, 

its property held and used in the business for which the excise tax is paid, 
and to exempt tlie stockholders or owners of the beneficial interest in 
this property, from liability to a property tax upon it. 

The exemption must, however, apply to and include all prop- 
erty of the same general class, for otherwise similar property which 
is not exempted will be unequally and disproportionally taxed. 

If the excise upon the Boston Railroad Holding Company to 
be established by the proposed act is held to be unconstitu- 
tional, in accordance with the view which I have already ex- 
pressed, I am unable to distinguish between the bonds of that 
corporation and the bonds of any other business corporation 
which may hold or be authorized to hold securities under like 
circumstances. Even if such excise is held to be constitutional, 
it will not, in my opinion, furnish a sufficient justification for 
the exemption of the bonds from local taxation. As has already 
been pointed out, the excise to be levied upon the Boston Rail- 
road Holding Company will not exceed the minimum amount, 
which is one-tenth of one per cent., in the one case, of the fair 
market value of the aggregate shares of stock and bonds, and 
in the other, the fair market value of the capital stock. The 
burden so imposed, which alone distinguishes the bonds of this 
corporation from bonds issued by other business corporations 
of the class already mentioned, cannot, it seems to me, justify 
an exemption of the bonds from a local taxation which is many 
times greater in amount, and to which the bonds of such other 
business corporations will be subjected. In other words, apart 
from the imposition of the excise, I am unable to discover any 
valid distinction between the bonds of the Boston Railroad 
Holding Company and the bonds of any other business corpo- 
ration which may hold securities of like character; and, even if 
constitutional, I do not deem that the imposition of such an 
excise is sufficient to create a distinction which would warrant 
the exemption provided for in the bills submitted to me. 

The communication from the committee on rules contains a 
request that, if in the opinion of the Attorney-General the 
drafts of legislation submitted are unconstitutional, he suggest 



DANA M ALONE, ATTORNEY-GENERAL. 289 

Lich modification, to accomplish the purpose of the bills by 
laking them of general application or otherwise, as may over- 
3me the objection. In this respect I am unable to comply 
ith the desire of the committee, for the reason that, in my 
pinion, the only method by which the purpose of the bills may 
e constitutionally accomplished would be by the enactment of 
meral legislation applying to all business corporations author- 
ed to hold securities which have been directly or indirectly 
ibjected to taxation; and such legislation would, as I am 
ivised and believe, work fundamental changes in the present 
IX laws of the Commonwealth, which I assume cannot be 
ithin the contemplation of the committee at this time. 



vSANE Person — jMental Disease — Temporary Care and 
Treatment — Certificate of Physician — Oath — Nat- 
ural Guardian. 

ader St. 1909, c. 504, § 44, providing for the temporary care, treatment and 
observation at the McLean Hospital of any person suffering from mental 
disease, "on the written application of his natural or legal guardian . . . 
together with the certificate of a physician qualified as pro^aded in section 
thirty-two, that such temporary care is necessary by reason of mental disease," 
the physician must set forth, under oath, the same qualifications as those 
required under section 32. 

16 term "natural guardian," as used in section 44 of chapter 504 of the Statutes 
of 1909, includes the father, and, upon the death of the father, the mother 
until she remarries. 

By vour communication dated April 20 you submit to me two To the 

, . . „ . p , State Board 

iiestions relative to the construction of section 44 ot chapter of insanity. 
)4 of the Acts of 1909. April 25 . 

(1) "Whether it is necessary that the physician should take 
ith to the certificate of mental disease which he makes under 
le provisions of said section?" 

Section 44 provides for the temporary care, treatment and 
)servation at the McLean Hospital, for a period not exceeding 
ven days, of any person suffering from mental disease, "on 
e written application of his natural or legal guardian, or, if 
ere be none, upon the written application of a chief or captain 
pohce, any member of the district police, a selectman, the 



290 OPINIONS OF THE ATTORNEY-GENERAL. 

state board of charity or the state board of insanity, together 
with the certificate of a physician quahfied as provided in sec- 
tion thirty-two, that such temporary care is necessary by rea- 
son of mental disease." Section 32 provides that the physician 
who makes the certificate thereunder shall make oath that he 
possesses certain qualifications set forth in the statute. It fol- 
lows, therefore, that in preparing a certificate under section 44 
the physician must set forth under oath the same qualifications 
as those required under section 32. 

(2) " What is the meaning of 'natural guardian' in this con- 
nection? May it be construed as referring to the person who ij 
most interested or is concerned in the reception of a mental pa- 
tient for temporary care under the provisions of said section?' 

When applied to a minor, the term "natural guardian" in- 
cludes the father, and, upon the death of the father, the mother 
at least until she remarries. See Worcester v. Marchant, 1- 
Pick. 510. It was doubtless intended that it should have th( 
same signification when applied to an insane person under th( 
provisions of section 44 above referred to. 



Clerks of Court — Money paid into Court — Interest 

A clerk of the courts may not appropriate to his own use interest upon mone; 
which under a rule of court or under a statute has been paid into court fo 
the benefit of the prevailing party in a suit brought to determine the righ 
to the possession of such money, and such interest is to be added to th 
principal sum so deposited. 

ControUer ^'^^ huxe requested my opinion as to whether a clerk of th 

AcTOu"nte^ courts may properly appropriate to his own use the interes 

April 26. upon money which has been paid into court, and which, unde 

the rules of the court, has been deposited by the clerk in hi 

name in a bank or trust company. 

I understand your question to have reference not to th 
money to which R. L., c. 21, § 22, applies, but to money whicl 
under the rules of the court or under a statute, has been pai 
into court for the benefit of the party who prevails in the sui 
brought to determine the right to the possession of the mone^ 



DANA MALONE, ATTORNEY-GENERAL. 291 

In my opinion, a clerk of courts may not properly appropriate 
16 interest upon such deposits to his own use. There is no 
atute and no rule of court which would authorize or justify 
ich appropriation. The duties of the clerk of courts with ref- 
•ence to such deposits are fixed by the rules of both the 
apreme Judicial Court and the Superior Court. Common Law 
ule XI. of the Supreme Judicial Court provides that: — 

In all cases in which monej^ is paid into court, the money shall be 
nsidered in the custody of the clerk, who shall receive it, and pay it to 
e party entitled thereto, on request. And if such party is not ready 
receive the same of the clerk as soon as paid, the clerk shall deposit 
in some bank, and not draw it, except for the purpose of paying it over 
the party entitled thereto; and in such case the money shall be deemed 
be at the risk of the person entitled thereto, from the time of the deposit 
the time when the same is drawn for. And in all such cases the clerk 
all be entitled to a fee of one dollar, together with a commission of one 
T cent on sums not exceeding five hundred dollars, and one half of one 
T cent on any amount beyond that sum, as a compensation for receiving 
id paj-ing out the money, to be paid by the party paying the money 
to court. 

Common Law Rule XXVI. of the Superior Court provides 
follows : — 

In cases in which money is paid into court, the money shall be in the 
stody of the clerk, whose dutj^ it shall be to receive it, and to pay it to 
e party entitled thereto, on request. If such party is not ready to 
3eive the same of the clerk as soon as paid, it shall be the duty of the 
;rk to deposit it in some bank in his name as clerk and not to draw it, 
cept for the purpose of paying it over to the party entitled thereto 
Jess otherwise specially ordered by the court; and in such case the 
Dney shall be deemed to be at the risk of the person entitled thereto, 
)m the time of such deposit to the time when the same shall be so drawn. 

The statutes and the rules of court, therefore, make the re- 
iving and depositing of money paid into court part of the 
ficial duties of the clerk of courts. The rule of the Supreme 
idicial Court provides for a special compensation for the per- 
rmance of this particular duty. The rule of the Superior 
3urt does not provide for special comi:^nsation. In the ab- 



292 OPINIONS OF THE ATTORNEY-GENERAL. 

sence of provision for special compensation, full force must be 
given to R. L., c. 165, § 37, which provides as follows: — 

The annual salaries of clerks shall be in full compensation for all ser\ices 
rendered by them in the civil or criminal coiu-ts, to the county commis- 
sioners, in making any returns required by law or in the performance of 
any other official duty except for such clerical assistance as may be allowed 
under the provisions of the following section. 

The statutes, therefore, make it clear that a clerk of courts is 
not entitled to the interest in question. 

You have also asked my opinion as to who is entitled to the 
interest, if the clerk of courts is not entitled to it. That is a 
question which is not strictly within your province to decide, 
since it is a question of private rights, which properly should be 
raised by the persons interested in the fund, and should be pre- 
sented by them to the court for determination. 

Without assuming to pass upon the question with reference to 
the rights of the parties in any particular case, however, it may 
be of assistance to you in the performance of your duties if I 
state that, in my opinion, a clerk of courts is to be considered as 
holding the deposit of money paid into court as trustee of the 
person who is finally determined to be entitled to it, and that as 
fast as interest accumulates it becomes impressed with the same 
trust and belongs to the same beneficiary as the principal. 



Fees — State Board of Health — Food and Drug Inspec- 
tors — Employees of Commonwealth — Witness Fees 
and Allowances for Travel. 

Food and drug inspectors appointed by the State Board of Health are employees 
of the Commonwealth within the meaning of R. L., c. 204, § 47, as amended 
by St. 1910, 0. 311, providing in part that "any employee recei^dng regdar 
compensation from the commonwealth shall not be entitled to a witness fee 
before any court or trial justice ... in a cause in which the commonwealth 
is a party," and are not entitled to witness fees for attendance at court oi 
allowances for travel in any cause in which the Commonwealth is a party. 

s°atc Board "^ ^u havc requcstcd my opinion upon the questions whether or 

"S"™'*'*' not, under the provisions of St. 1910, c. 311, food and drug in- 

•^^ ■ spectors of the State Board of Health are forbidden to receive th( 



I 



DANA MALONE, ATTORNEY-GENERAL. 293 

itness fees provided for by R. L., c. 204, § 21, for attendance 
t the various courts; and whether, if they are forbidden to re- 
iive the prescribed amount of 50 cents per day for attendance 
efore a trial justice, or poHce, district or municipal court, they 
lay properly receive 5 cents per mile for travel out and home, 
; provided by said section 21. 

R. L., c. 204, § 47, as amended by St. 1910, c. 311, provides 
; follows : — 

A district police officer or an officer of the commonwealth whose salary 
fixed by law, or any employee of the commonwealth receiving regular 
■mpensation from the commonwealth shall not be entitled to a witness 
e before any court or trial justice of this commonwealth in a cause in 
liich the commonwealth is a party. An officer whose compensation is 
•rived solely from fees shall not be entitled to receive more than one fee 
a witness for a day's attendance on court under one or more summonses 
behalf of the commonwealth, and the said fee shall be apportioned by 
.6 clerk among the cases in which he is so summoned. 

The food and drug inspectors of the State Board of Health 
•e paid a regular compensation, fixed by the State Board of 
ealth, and they devote all their time to the performance of 
leir duties as inspectors. Although appointed by the Board, 
id although their salaries are fixed in amount by the Board, 
ley are none the less the employees of the Commonwealth, 
ceiving their compensation from the Commonwealth. They 
I'e, therefore, by the provisions of St. 1910, c. 311, not entitled 
I witness fees for attendance at court in a cause in which the 
ommonwealth is a party. 

The allowance of 5 cents a mile for mileage, as provided in 

ction 21, is a part of the fees of the witness, and the receiving 

it is therefore forbidden by the same statute. That it was 

, )t the intention of the Legislature that any distinction should 

15 made as to the receiving of the fee for attendance and the 

ceiving of the allowance for mileage, is evidenced by the 

lactment of section 48 of said chapter 204, which provides for 

le reimbursement of the officers of the Commonwealth who 

^■e forbidden by section 47 to receive fees, to the extent of the 

nount by which their necessary expenses have been increased 

■ attendance at court. 



294 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Taxation — Unifokm Rate upon 
All Personal Estate within the Commonwealth. 

A proposed act designed to tax personal estate at a uniform rate throughout the 
Commonwealth, such uniform rate being the average of the annual rates 
for the preceding three years, is objectionable upon constitutional grounds, 
because it subjects personal estate to taxation at a rate different from the 
rate applicable to real estate, and because the rate so established does not 
bear any relation to the amount to be raised by taxation. 

To the Com- The Committee on taxation desires my opinion upon the 

mittee on . 

Taxation. constitutionality of a proposed act which shall tax personal 
May3^ estate at a uniform rate throughout the Commonwealth, such 

uniform rate being the average of the annual rates for the pre- 
ceding three years. 

The last decision on the subject of proportional taxation is 
contained in the Opinion of the Justices, 195 Mass. 607, which 
deals with the question of the constitutionality of a uniform tax 
of three mills upon certain classes of intangible personal prop- 
erty, and the opinion was expressed that such tax would be un- 
constitutional. The proposed tax differs, first in applying to 
all personal property; and second, in imposing a tax at a rate 
not fixed by statute, but obtained by finding the average of 
three annual rates throughout the Commonwealth, and conse- 
quently, a rate which approximates the local rate, although it 
may differ materially from such rate. 

In my judgment, the principals stated in the Opinion of the 
Justices are as applicable to a tax upon all personal property as 
upon the classes referred to in the opinion; and I believe that 
the method of finding the rate according to the proposed act 
does not differentiate it from the act considered by the justices. 
The effect of the act is to subject personal estate to taxation at 
a rate different from the rate applicable to real estate, in most 
instances. This, in itself, is objectionable under the cases cited 
in the opinion, where the proposition is clearly stated that the 
requirement that taxes be proportional forbids the imposition 
of a tax upon one class of property at a different rate from that 
which is applied to other classes. Another objection is that the 
rate imposed by this act does not bear a relation to the amount 



DANA MALONE, ATTORNEY-GENERAL. 295 

' tax to be raised. In Oliver v. Washington Mills, 11 Allen, 
38, 275, it was pointed out that : — 

In assessing the needful amount it should be laid on property, real 
id personal, within the Commonwealth, so that, taking "all the estates 
ing within the Commonwealth" as one of the elements of proportion, 
ich taxpayer should be obliged to bear only such part of the general 
arden as the property owned by him bore to the whole sum to be 
.ised. 

It will be noticed that the tax under the proposed act bears 
3 relation to the amount to be raised during the tax year, the 
ite being just as arbitrary as if the Legislature had prescribed a 
xed rate, not by the amount to be raised in a given year, but 
y the average of the rates for the preceding years. For in- 
;ance, suppose in a given town the expenses for a given year 
re very low; the result is a low tax rate for that year upon the 
jal estate. The tax rate upon personalty, however, being fixed 
y the average rate throughout the Commonwealth for the pre- 
?ding three years, would probably be much higher. If in the 
)llowing year the expenses of the town were greatly increased, 
le local tax rate would necessarily be increased ; but this would 
ot affect the rate on personalty, which would have been fixed 
y the Commonwealth rates for the preceding three j'ears. The 
)llowing year the Commonwealth rate would be slightly in- 
reased, because of the increase in the local rate; but, unless 
le increase in the local rate extended throughout the Common- 
ealth, the increase in the rate of taxation for personal estate 
ould be hardly noticeable. Not only would the burden of the 
reater increased expenses of the town fall almost entirely upon 
?al estate, but the rate upon personalty would hardly be af- 
'cted either in the year when the expenses were increased or 
1 any subsequent year. 

An act might prescribe the place in which personal property 
lay be taxed, within reasonable limits. See Northampton v. 
'aunty Commissioners, 145 Mass. 108. But this act cannot, in 
ly opinion, be said to deal merely with the place at which per- 
)nal property is to be taxed, and, even if it could, the objec- 



296 OPINIONS OF THE ATTORNEY-GENERAL. 

tion is still valid that the rate of tax bears no relation to the 
amount to be raised. 

In my opinion, therefore, the proposed act is unconstitutional. 



Statutes — General and Particular — Repeal — Civil 
Service — Heads of Departments — Sealers of 
Weights and Measures — City Charter of the City 
OF Boston. 

St. 1909, c. 486, which established a new charter for the city of Boston, pro\iding, 
in section 9, that heads of all departments of such city shall be recognized 
experts in such work as may devolve upon the incumbents of such oflSces, 
or persons specially fitted by education, training or experience to perform 
the same, and shall be appointed without regard to party affiliation; and, 
in section 10, that in making such appointments the mayor shall sign a certifi- 
cate of appointment and file the same with the city clerk, who shall thereupon 
forward a certified copy to the Civil Service Commission, who shall make 
a careful inquiry into the qualifications of the nominee under such rules as 
they may establish, with the consent of the Governor and Council, and, 
if they find such qualifications sufficient to meet the requirements of the law, 
such commission shall file a certificate with the city clerk stating that they 
have made the requisite examination and that they approve the appointment; 
and, in section 62, that all acts and parts of acts so far as inconsistent with 
such act are repealed, — does not repeal the provisions of St. 1909, c. 382, 
authorizing the Civil Service Commissioners to prepare a rule, to be approved 
by the Governor and Council, for including within the classified service all 
principal or assistant sealers of weights and measures holding office by appoint- 
ment under any city or town of over ten thousand inhabitants, "whether 
such officers are heads of principal departments or not; " and the latter 
statute is still applicable to sealers of weights and measures in the city of 
Boston. 

To the The Civil Service Commission asks mv opinion on the fol- 

Civil Service " '■ 

Commission. lowing: — 



Under chapter 382 of the Acts of 1909, the Civil Service Conaniis- 
sioners are authorized to prepare a rule, which shall take effect when 
approved by the Governor and Council in the manner provided bj-- law, 
for including within the classified service all principal or assistant sealers 
of weights and measures, etc., "whether such officers are heads of principal 
departments or not." This act was approved May 13, 1909, and took 
effect on its passage. 

Under this act the commission prepared a rule, as follows, which went 
into operation Sept. 1, 1909: — 



m 



DANA MALONE, ATTORNEY-GENERAL. ' 297 



Rule 7. 



'lass 6. All principal or assistant sealers of weights and measures holding office 
by appointment under any city, or any town of over ten thousand inhabit- 
ants, whether such officers are heads of principal departments or not, and 
also the inspectors of weights and measures of the Commonwealth. 

By decision of the Supreme Judicial Court, the civil service rules, 
^hen duly in force, have the effect of statute law. 

Under section 9 of chapter 486 of the Acts of 1909 (the city charter 
f Boston), it is provided that heads of all departments of the city of 
loston shall be recognized experts in such work as may devolve upon the 
neumbents of the offices, or persons specially fitted by education, training 
r experience to perform the duties; that they shall be appointed without 
jgard to party affiliations or residence at the time of appointment. 

Under section 10 of the act, it is provided that in making appointment 
tie mayor shaU sign a certificate, etc., and that the Civil Service Com- 
lission shall make careful inquiry into the qualifications of the nominee, 
nder such rules as they may with the consent of the Governor and Council 
stabUsh; and if the applicant is qualified under the requirements of the 
iw, the commission shall file with the city clerk a certificate, signed by 
t least a majority of the commissioners, that thej^ have made careful 
iquirj'' into the qualifications of the appointee, and that in their opinion 
e is qualified by education, training or experience, etc., for said office. 

By the provisions of section 62 of the city charter, it is provided that 
U acts and parts of acts, so far as inconsistent with this act, are hereby 
epealed. 

Sections 1 to 14 (including sections 9 and 10), by the provisions of 
ection 63 of the city charter act, took effect on the first Monday of 
ebruary, 1910. 

Section 62 of the city charter took effect June 11, 1909. 

Questions. — First: are the provisions of said chapter 382 of the Acts 
f 1909 inconsistent with the provisions in the city charter above referred 
D, and is said chapter 382, and the civil service rule prepared thereunder, 
jpealed so far as relates to the principal sealer of weights and measures 
f Boston? 

Second: if not, is it sufficient if the commission, in filling a vacancy 
1 the position, shall hold a competitive examination of apphcants under 
he pro\'isions of the civil service rules, or is the commission obliged also 
D make careful inquiry and certificate of quahfications, as required by 
3Ction 10 of the city charter? 

The question submitted is, whether section 9 of chapter 486 
f the Acts of 1909 repealed chapter 382 of the Acts of 1909. 



298 ' OPINIONS OF THE ATTORNEY-GENERAL. 

The general rule relative to repeal of acts is stated in Black 
on the Interpretation of Laws, p. 116. See also Endlich on 
Interpretation of Statutes, §§ 223, 225, 228. Chief Justice Shaw, 
in Broicn v. Lowell, 8 Met. 172, summarizes the rule as fol- 
lows : — 

In general, we should think it would requhe pretty strong terms in the 
general act, showing that it was intended to supersede the special acts, 
in order to hold it to be such a repeal. 

See, also, Copeland v. Springfield, 166 Mass. 498, and cases 
cited. 

In Brooks v. Fitchburg & Leominister Ry. Co., 200 Mass. 8, 
17, Mr. Justice Rugg says: — 

The principle of interpretation is well established that statutes alleged 
to be inconsistent with each other, in whole or in part, must be so con- 
strued as to give reasonable effect to both, unless there be some positive 
repugnancy between them. 

The force of this rule is not diminished even when the general 
act contains a clause repealing acts inconsistent with it. See 
Endlich on Interpretation of Statutes, § 223. 

With this rule in mind, I am of opinion that section 9 of 
chapter 486 of the Acts of 1909 did not repeal chapter 382 of 
the Acts of 1909. Both acts were under consideration by the 
Legislature at the same time. The act to include sealers and 
inspectors of weights and measures within the classified civil 
service -was approved INIay 13, while the act for the city charter 
of Boston was approved June 11, 1909, to take effect on the 
first Monday of February, 1910, so far as section 9 is concerned. 
Section 62 of chapter 486 of the Acts of 1909 repealed all acts 
and parts of acts so far as inconsistent with that act; but it 
does not seem to me that by these words it was intended to 
repeal a general act which had been enacted less than a month 
before the approval of this special act, without expressly repealing 
it. Chapter 382, being a general law applying to all cities and to 
towns having a population of more than ten thousand, it seems 



I , 



DANA MALONE, ATTORNEY-GENERAL. 299 

:o me is still in force; and that the rule made by your commis- 
5ion, which went into operation Sept. 1, 1909, is still in force, 
ind applies to the city of Boston as well as to other cities and 
meh towns, and is not inconsistent with the provisions of the 
nty charter, and must be construed so as to give reasonable 
jJGfect to both that statute and to chapter 382, I think it suf- 
icient if the commission, in filling a vacancy in the position, 
lold a competitive examination of applicants under the pro- 
visions of the civil service rules, and proceed as is usual in such 
?ases. 



Constitutional Law — Taxation — Income Tax. 

A general income tax, imposed upon the income from real and personal propertj^ 
as well as upon income from annuities and from professions, trades and 
employments, which is in addition to and not in substitution for existing 
taxes, would probably be held unconstitutional as a property tax, as not 
being within the requirement of the Constitution of Massachusetts, part II., 
section I., Article IV., that taxes shall be "proportional and reasonable," 
upon the ground that thereby a greater burden is imposed upon property 
from which income is derived than upon property of equal value from which 
no income is derived, and would be unconstitutional as an excise tax for the 
reason that the mere right to own and hold property cannot be made the 
subject of an income tax. 

In behalf of the committee on taxation, you submit for mv TotheCom- 

. 1 . . . . . p "^ mittee on 

consideration the following question: ''Is it possible to frame "^^^^J'""- 
a general income tax bill that will be compatible with our State ^^^y " • 
Constitution?" 

I assume that by a "general income tax" you mean a tax 
upon the income from real and personal property, as w^ell as 
upon income from annuities and from professions, trades and 
employments. I further assume that you desire my opinion as 
to the validity of such a tax in addition to existing taxes, and 
not in substitution therefor. 

There are undoubtedly certain forms of income which are, by 
reason of our federal form of government, exempt from taxa- 
tion by the State. I refer to salaries of federal officials (Dob- 
hins v. Commissioners of Erie County, 16 Pet. 435) and interest 
upon federal securities. See Weston v. City Council of Charles- 



300 OPINIONS OF THE ATTORNEY-GENERAL. 

to7i, 2 Pet. 449; Pollock v. Farmers' Loan & Trust Co., 157 
U. S. 429; 158 U. S. 601. Such income would be exempt 
from a general income tax, though not expressly excepted there- 
from. 

The Constitution of this Commonwealth contains two provi- 
sions authorizing taxation, which are to be found in Part IL, 
chapter 1, section 1, article IV. The General Court is author- 
ized to ''impose and levy proportional and reasonable assess- 
ments, rates and taxes, upon all the inhabitants of, and persons 
resident, and estates lying, within the said commonwealth; and 
also to impose and levy reasonable duties and excises upon any 
produce, goods, wares, merchandise, and commodities, whatso- 
ever, brought into, produced, manufactured, or being within the 
same; ..." In substance, the first provision authorizes pro- 
portional and reasonable taxes upon property; the second, rea- 
sonable excises upon privileges. 

The statutes now provide that "personal estate for the pur- 
pose of taxation shall include : — ... The income from an 
annuity, and the excess above two thousand dollars of the in- 
come from a profession, trade or employment" during the pre- 
ceding year, but that "incomes derived from property subject 
to taxation shall not be taxed." St. 1909, c. 490, part I., § 4. 
This provision in substantially the same form is found in all the 
codifications of the general tax laws of the Commonwealth. 
R. S., c. 7, § 4; Gen. Sts., c. 11, § 4; Pub. Sts., c. 11, § 4; R. L., 
c. 12, § 4. Prior to the passage of a general tax act, both 
before and after the adoption of the Constitution, a similar pro- 
vision was usual to the annual tax acts. 

The constitutionality of the existing provision for taxation of 
incomes has not been expressly affirmed, but the justices of the 
Supreme Judicial Court, in the Opinion of the Justices, 195 
Mass. G07, seemed to assume its validity'. They say, at page 
610:—. 

It is proper that one's income, to a reasonable amount, should be 
treated as necessarily consumed for the support of himself or of his 
family, so thot only the excess above such amount should be regarded as 
property increasing his ability to pay taxes. 



DANA MALONE, ATTORNEY-GENERAL. 301 

But on page 612 say further that: — 

The constitutionahty of some of the statutes to which we have referred 

IS not been affirmed, and may be questionable. But nearlj- all of them 

•e consistent wuth the view that all available property should be taxed 

;cording to its value, for the purpose of estabhshing the proportional 

I oility and duty of individual owners to bear their burdens as citizens. 

The natural conclusion from this language of the justices is 
ot only that the tax is constitutional, but that it is constitu- 
onal as a tax upon property. This conclusion is in accord 

ith the form of the statute which provides, as I have stated, 
lat personal property shall include certain incomes. In two 
ases (Melcher v. Boston, 9 Met. 73, and Wilcox v. County Com- 
lissioners, 103 Mass. 544) the income tax was before the court, 
ut the decisions do not help us in this inquiry. 

If the existing tax on incomes is a property tax, there is even 
lore reason for considering a tax upon incomes derived directly 
rem property to be a property tax. A majority of the United 
itates Supreme Court, in the Income Tax Cases (Pollock v. 
yarmers' Loan & Trust Co., supra), held the federal tax on in- 
omes from real and personal property to be a direct tax on 
uch real and personal property. 

Assuming that a general income tax is a tax on property, its 
onstitutionality depends, of course, upon whether it is propor- 
ional and reasonable. I see no reason why a general income 
ax bill could not be framed which would be reasonable. 
Vhether such a tax would be proportional is a more difficult 
luestion. If the property, real or personal, has once been taxed 
is such, a tax on the income therefrom will result in double 
axation. This, of itself, though perhaps theoretically objec- 
ionable, is not necessarily constitutionally objectionable. 
'^rothingham v. Shaiv, 175 Mass. 59, 61. Where, however, 
louble taxation results in disproportionate taxation, it is con- 
titutionally objectionable. There is much reason to' believe, 
dthough there is no decision thereon, that the imposition of a 
ax on incomes from property otherwise taxable would be re- 
garded as unconstitutional, on the ground that thereby a greater 



302 OPINIONS OF THE ATTORNEY-GENERAL. 

burden is imposed upon property from which income is derived 
than upon property of equal intrinsic value from which no in- 
come is derived. 

If a general income tax cannot be sustained as a tax on prop- 
erty, it probably cannot be sustained at all. It was pointed out 
in the Opinion of the Justices, 195 Mass. 607, 614, that "the 
mere right to own and hold property such as is referred to in the 
question [the question being in regard to certain forms of per- 
sonalty] cannot be made the subject of an excise tax." The 
same principle must apply to the right to own and hold realty 
and other forms of personalty. A tax upon income from prop- 
erty construed as an excise, it seems to me, would be nothing 
more than an excise on the privilege of holding such property, 
and, in accordance with this expression of opinion of the jus- 
tices, would be unconstitutional. 

I have stated to you certain conclusions, but there is no au- 
thoritative decision upon this question in this Commonwealth, 
and, before the enactment of so important a measure, it would 
be most desirable that the opinion of the justices of the Supreme 
Judicial Court be asked. 



Water Supply — Great Ponds — State Board of Health — 
Control and Regulation — Wright's Pond and Ash- 
ley's Pond in the City of Holyoke — Regulation of 
Public Rights. 

The State Board of Health, under the provisions of R. L., c. 75, § 112, and § 113 
as amended by St. 1907, c. 467, vesting in such board the "oversight and care 
of all inland waters and of all streams and ponds used by any city, town or 
public institution ... as sources of water supply," and pro%ading that it 
may regulate and control the exercise of the pubHc rights of fishing, boating, 
skating or taking ice, and may delegate the power of granting or witholding 
permits to the local authority, — may regulate the exercise of such public 
rights on Wright's Pond and Ashley's Pond in the city of Holyoke, used by 
said city as a source of water supply under the provisions of St. 1872, c. 62, 
provided such regulation or prohibition is reasonably necessary to secure the 
sanitary protection thereof. 

mHteeo^n°"' ^u behalf of the committee on water supply, you inquire 
Water Supply, ^^hcther Or uot, uudcr existing laws, the State Board of Health 
-^^' now has authority to regulate or prohibit the public use of a 



I 



DANA M ALONE, ATTORNEY-GENERAL. 303 

jreat pond, and to delegate the enforcement of such regulation 
)r prohibition to the authorities of a city or town. In connec- 
ion with such inquiry you have submitted to me a draft of a 
jroposed act, entitled, "An Act relative to public rights in 
Vshley's Pond and Wright's Pond in the city of Holyoke," and 
lave directed my attention to the second section of such draft 
vhich is as follows : — 

Fishing, boating, skating or riding upon the ice, taking water for domes- 
ic purposes or the arts, the cutting or harvesting of ice, and all other uses 
)f the waters of said ponds, except under such regulations as may be 
!StabHshed by the board of water commissioners of said city of Holj'-oke 
ifter the passage of this act, shall be unlawful; and any person who shall 
38 found guilty of fishing, boating, skating or riding upon the ice, taking 
ivater for domestic purposes or the arts, or cutting or harvesting ice, shall 
ye liable to a fine of not less than ten nor more than fifty dollars for each 
offence. 

By section 2 of chapter 62 of the Statutes of 1872, the town 
of Holyoke was authorized "to take and hold the entire waters 
of Ashley's and Wright's ponds, so called" (which I assume to 
be great ponds), "and the waters which flow into and from the 
same, and also the waters of such brooks as may be conven- 
iently diverted and conducted into said ponds," with other 
powers necessary or convenient for the purpose of supplying 
such town with pure water. It is fair to assume, although it 
does not appear, that the authority so conferred was exercised 
by the town, and that all the rights or interests acquired there- 
under are now held and enjoyed by the city of Holyoke. 

The authority of the State Board of Health in the premises 
is derived from R. L., c. 75, § 112, and § 113 as amended by St. 
1907, c. 467. Section 112 vests in the State Board of Health 
the general oversight and care of all inland waters, and of all 
streams and ponds used by any city, town or public institution 
or by any water or ice company in this Commonwealth, as 
sources of water supply, and of all springs, streams and water 
courses tributary thereto. 

The power and authority of the State Board of Health to pro- 
tect sources of water supply by reasonable rules and regulations 



304 OPINIONS OF THE ATTORNEY-GENERAL. 

is both comprehensive and conclusive, and often has been exer- 
cised under this or similar provisions of law. Sprague v. Dorr, 
185 Mass. 10; Nelson v. State Board of Health, 186 Mass. 330. 

If, in the discretion of that Board, the proper protection of 
the purity of a source of water supply requires that the public 
be regulated and controlled in its use of a great pond whqse 
waters form a part of such source of supply, or that the public 
use be discontinued altogether, it would undoubtedly be within 
the authority of such Board to make reasonable rules and regu- 
lations for that purpose. See Sprague v. Minon, 195 Mass. 581. 
In other words, the Board may take such measures as are rea- 
sonably necessary to secure the proper sanitary protection of a 
source of water supply, notwithstanding that thereby the use 
by the public of a great pond which is a part of such water 
supply may be greatly impaired and restricted, or even entirely 
destroyed. 

Replying specifically to the question of the committee, there- 
fore, it is my opinion that, under the provisions of R. L., c. 75, 
§ 113, as amended by St. 1907, c. 467, the State Board of 
Health may regulate and control the exercise of the public 
rights of fishing, boating, skating on or taking ice from Ashley's 
Pond and Wright's Pond, even to the extent of prohibiting 
them altogether; and may delegate the power of granting or 
withholding any permits which may be required by the rules 
and regulations made for such purpose to the board of health, 
or the water board, or the water commissioner, as the case may 
be, of the city of Holyoke. This authority, however, must be 
predicated upon a determination by the State Board of Health 
that the exercise of the public rights regulated or prohibited en- 
dangers the purity of the waters of such ponds as a source of 
water supply and that such regulation or prohibition is reason- 
ably necessary to secure the sanitary protection thereof. 



I 



DANA MALONE, ATTORNEY-GENERAL. 30i 



I'ONSTIXrTIONAL LaW — MONEY RAISED BY TAXATION — PUB- 
LIC Purpose — Relief of Persons out of Employment 
BY Construction of Highways in Times of Industrial 
Distress. 

The expenditure of money raised by taxation must be limited to a public purpose 
and it is not, therefore, within the power of the Legislature to authorize the 
Governor and Council to issue and sell bonds and to expend the proceeds in 
the construction of highways, where the primary purpose of such construction 
was to furnish relief to persons out of employment in times of industrial 
distress. 

You have submitted to me, on behalf of the Senate com- To the Senate 

Committee on 

nittee on ways and means, an inquirv as to whether or not "it ways and 

^ '■ Means. 

s within the power of the Legislature to authorize the Governor ju^g 9^ 
md Council to issue bonds and to construct public highways 
'or the purpose of creating employment in times of industrial 
distress;" or, in other words, whether or not it is constitutional 
:o undertake public work, not primarily because such work 
s required for the public safety or convenience, but in order 
:o provide employment for those whose circumstances re- 
quire it. 

It is well established that the expenditure of money raised by 
taxation must be limited to a public purpose. Lowell v. Oliver, 
S Allen, 247, 253; Mead v. Acton, 139 Mass. 341, 344; Kingman 
?t al., petitioners, 153 Mass. 566. And the relief of persons who 
bave suffered loss by fire or by any other great and general 
calamity has been held not to be a public purpose. Lowell v. 
Boston, 111 Mass. 454; ante p. 151. 

It is clear, therefore, that the Legislature may not employ 
money raised by taxation for the relief of persons who have suf- 
fered loss either by some great calamity or by industrial condi- 
tions which have deprived them of employment, unless the 
relief so provided is in the nature of pauper aid; and, in my 
opinion, the fact that the contemplated relief is to be furnished 
by means of employment upon public works, as for instance, 
public highways, does not serve to render constitutional an 
appropriation therefor of money raised by taxation, if the 
primary purpose of such appropriation was to furnish relief to 



306 OPINIONS OF THE ATTORNEY-GENERAL. 

persons out of employment, rather than the construction of 
highways required by pubhc convenience or safety. In such a 
case the construction of highways is only incidental to the pur- 
pose of affording relief by means of an appropriation of public 
money. 

You have further requested me to examine House Bill No. 
403, with a view to determining whether such bill "is free from 
objectionable provisions of any other nature." You have not 
sought my opinion as to w^hether the bill is objectionable upon 
the ground set forth in the inquiry which I have already an- 
swered, and I therefore express no opinion upon the application 
of the principle above stated thereto. 

The second section of House Bill No. 403 contains provisions 
for the issuance of bonds, to be described as "The State High- 
W'ay Emergency Fund Loan," and provides for their sale at 
such times and prices, and in such amounts and at such rates 
of interest, not exceeding 4 per cent., as may be deemed best. 
It then continues : — 

The sinking fund established by chapter four hundred and ninety- 
seven of the acts of the year eighteen hundred and ninety-four shall also 
be maintained for the purpose of providing for the payment of the bonds 
issued under authority of this act, and the treasurer and receiver-general 
shall apportion thereto from year to year an amount sufficient with the 
accumulations of said fund to extinguish at maturity the debt incurred 
by the issue of said bonds. The amount necessary to meet the annual 
sinking fund requirements and to pay the interest on said bonds shall be 
raised by taxation from year to year. 

If this section is to be construed as imposing any new liability 
or obligation upon a sinking fund already established to meet 
bonds issued under the provisions of St. 1894, c. 497, I am of 
opinion that it is objectionable as constituting an interference 
with the obligations of a contract already established and in 
force. See 2 Op. Atty.-Gen. 505. 

Section 5 provides that in case the Highw^ay Commission is 
directed to undertake the work of constructing highways in any 
city or town, "they shall employ as laborers and mechanics such 



DANA MALONE, ATTORNEY-GENERAL. 307 

ersons as shall be recommended to them by the mayor of the 
ity or the selectmen of the town, giving preference to men out 
f work, and especially to men having persons dependent upon 
hem for support," provided that such employees are citizens of 
lassachusetts. This preference, which is based upon the neces- 
ity of the employee rather than of the public service, cannot be 
ustained upon the ground that it is a reward for distinguished 
ublic service in the past, or will serve as encouragement for 
Lich service in the future. It is therefore, in my opinion, objec- 
ionable for constitutional reasons, in that it purports to fix as a 
asis for employment something which does not bear such a 
Nation to the duties to be performed as to show special fitness 
3r the performance of those duties. Broion v. Russell, 166 
lass. 14; Opinion of the Justices, 166 Mass. 589. 
A further provision which is at least of doubtful validity is 
hat contained in section 1, which in effect requires the Gover- 
or and Council to determine when a time of industrial distress, 
rising from scarcity of work, exists among laborers, and to 
irect the Treasurer and Receiver-General to issue bonds, scrip 
r certificates of indebtedness to an amount not exceeding the 
um of S100,000 in any one year. The powers and duties of the 
ilxecutive are prescribed by the Constitution, and the Legisla- 
ure is not authorized to impose upon him duties which do not 
iroperly fall within the executive functions vested in him under 
he Constitution. With respect to the power here sought to 
>e conferred, the authority of the Legislature in the premises 
nay well be questioned. See 1 Op. Atty.-Gen. 172. 



308 OPINIONS OF THE ATTORNEY-GENERAL. 

i 

Massachusetts Agricultural College — State Ixstitu- l 
TioN — Trustees — Sale of Land to Institution at a ^ 
Profit. 

To be a state institution implies that the institution, and the work it carries on, 
is directly under the control of the Commonwealth ; that its officers are the 
agents of the Commonwealth, and that its property is the property of the 
Commonwealth; and the Massachusetts Agricultural College at Amherst, 
a public charitable corporation organized under the provisions of St. 1863, c. 
220, for educational purposes, and having a distinct corporate existence, 
does not answer these requirements, and is not, strictly speaking, a State 
institution. 

The trustees of the Massachusetts Agricultural College may not legally, as individ- 
uals, purchase land and later sell it to such institution at an increased cost 
over the original price. 

Jf°Re''r^°"^^ I have the honor to acknowledge the receipt of an order 

aentatives. 

1910 
June 13. 



adopted by the Honorable House of Representatives on the 
9th day of June, 1910, which is as follows: — 

Ordered, That the Attorney-General give his opinion ... to the 
House of Representatives whether or not in his judgment the Massa- 
chusetts Agricultural College at Amherst is a State institution; also, 
whether the trustees of the Massachusetts Agricultural College, as m- 
dividuals, have a legal right to purchase land and later sell it to the 
Massachusetts Agricultural College at an, increased price over the 
original cost. 

The first question as to which my opinion is desired is, 
whether the INIassachusetts Agricultural College at Amherst is 
a State institution. 

The ^Massachusetts Agricultural College was incorporated by 
St. 1863, c. 220. By that act certain persons were " constituted 
a body corporate, by the name of the Trustees of the ]\Iassa- 
chusetts Agricultural College, the leading object of which" 
should be "without excluding other scientific and classical 
studies, and including military tactics, to teach such branches 
of learning as are related to agriculture and the mechanic arts, 
in order to promote the liberal and practical education of the 
industrial classes in the several pursuits and professions of 
life;" and it was provided that "they and their successors, and 



DANA MALONE, ATTORNEY-GENERAL. 309 

ach as shall be duly elected members of said corporation, shall 
e and remain a body corporate by that name forever." The 
ower of removing trustees from the corporation was given to 
16 trustees, but vacancies in the board of trustees were to be 
lied by the Legislature. The Governor of the Commonwealth, 
le secretary of the Board of Education, the secretary of the 
■card of Agriculture, and the president of the faculty were 
lade ex officio members of such corporation (section 1). The 
jrporation was given the usual powers in regard to taking and 
olding of property, making by-laws, saving a common seal, 
ling and being sued (sections 2, 3). The Legislature reserved 
le right to alter, limit, annul or restrain the powers vested in 
le corporation, and especially to "appoint and establish over- 
jers or visitors of the said college, with all necessary powers 
)r the better aid, preservation and government thereof" (see- 
on 5). The corporation was required to report to the Legis- 
iture, and it was provided that its location, plan of organ- 
;ation, government and course of study should be subject to 
le approval of the Legislature (sections 5, 6). The purchase 
I a site was authorized, and one-tenth part of the moneys 
jceived from the State Treasurer from the sale of land scrip 
y virtue of the provisions of the 130th chapter of the Acts 
f the Thirty-seventh Congress was appropriated therefor, on 
le condition that the further sum of $75,000 should be sub- 
bribed for the purpose of erecting suitable buildings thereon 
jeetions 6, 7). When the college was established, two-thirds 
f the annual income from the fund created by the sale of such 
md scrip was to be paid to its treasurer (section 8). This land 
-rip represented public land, and was granted by the United 
tates, by the act of Congress above referred to, to the several 
tates, to be invested by them (see sections 4, 5), other than 10 
er cent, thereof, and the interest in each State to be appro- 
riated "to the endowment, support and maintenance of at 
■ast one college where the leading object" should be "without 
^eluding other scientific and classical studies, and including 
lilitary tactics, to teach such branches of learning as are re- 
ited to agriculture and the mechanic arts." It was further 



310 OPINIONS OF THE ATTOKNEY-GENERAL. 

provided by the act of incorporation of the college (section 9) 
as follows : — 

In the event of a dissolution of said corporation, by its voluntarj- 
act at any time, the real and personal property belonging to the corpora- 
tion shall revert and belong to the commonwealth, to be held by the same, 
and be disposed of as it may see fit, in the advancement of education, in 
agriculture, and the mechanic arts. The legislatm-e shall have authority 
at any time to withhold the portion of the interest or income from said 
fund provided in this act, whenever the corporation shall cease or fail to 
maintain a college within the provisions and spirit of this act and the . 
before-mentioned act of congress, or for any cause which they deem 
sufficient. 

Since the original act of incorporation there has been consid- 
erable legislation in regard to the college. By St. 1864, c. 223, 
its corporate name was changed to " The INIassachusetts Agricul- 
tural College," and it was provided that the location, plan of 
organization, government and course of study should be subject 
to the approval of the Governor and Council, instead of to the 
approval of the Legislature. The power to fill vacancies in the 
board of trustees was, by St. 1871, c. 378, conferred upon such 
board, but by the Resolves of 1884, chapter 50, the power of 
appointment and removal was conferred upon the Governor, 
with the advice and consent of the Council, and the term of 
service was fixed at seven years. By St. 1866, c. 263, the Board 
of Agriculture was constituted a board of overseers of the col- 
lege, with powers and duties to be defined and fixed by the 
Governor and Council. (See P. S., c. 20, § 5; R. L., c. 89, 
§ 10). By St. 1894, c. 143 (see St. 1895, c. 57), the Massachu- 
setts Agricultural Experiment Station was consolidated with 
the experiment department of the Agricultural College, and it 
was provided that the property of the former should be ac- 
cepted by the trustees of the college "for said college in behalf 
of the commonwealth" (section 2). Other acts contain pro- 
visions in regard to the reports of the trustees of the college, in 
R. L., c. 9, § 7, such reports being classified under "reports of 
public institutions." Many appropriations in favor of the 
Massachusetts Agricultural College have been made, and free 



I 



DANA MALONE, ATTORNEY-GENERAL. 311 

cholarships have been established there by the State. See, for 
xample, St. 1909, c. 436. It has been provided that the books 
nd accounts of the college shall be kept under the direction of 
he Auditor of the Commonwealth, who shall audit the expendi- 
ures and receipts at least twice a year. (See, for example, 
;t. 1909, c. 436, § 3.) St. 1889, c. 45, provides that such trus- 
ees shall be allowed and paid from the treasury of the Com- 
Qonwealth "such sum as is necessary for their personal and 
ncidental expenses incurred in the discharge of their duties, in 
he same manner as the trustees of other public institutions are 
low paid and allowed." 

From these statutes it appears that the Massachusetts Agri- 
lultural College is not a mere agency of the Commonwealth, 
t has a distinct corporate existence. It is a public charitable 
•orporation organized for educational purposes. The right to 
;ontrol its character and location was reserved by the Legisla- 
ure. The Legislature expressly reserved the right to amend 
md repeal the charter, though this right was undoubtedly re- 
erved by the general law. Gen. Sts., c. 68, § 41. It also ex- 
)ressly reserved the visitorial power, though such power was 
mdoubtedly in the Legislature apart from statute. Amherst 
icademy v. Cowls, 6 Pick. 427, 433. Under these and other 
)owers the Legislature has to a considerable extent controlled 
;he affairs of the college. Much of the property which the cor- 
Doration holds has come to it by appropriation by the Com- 
nonwealth, either from moneys raised by taxation or from 
property granted to the State by the general government to be 
Used for such purposes. See Massachusetts Agricultural College 
/. Marden, 156 Mass. 150, 156. All the original deeds of the 
•eal estate run to the Massachusetts Agricultural College, and 
n one or more of them it is described as a corporation created 
3y law. The property transferred from the Massachusetts 
(Agricultural Experiment Station is, by express statutory provi- 
.ion, held "in behalf of the commonwealth." Generally speak- 

ng, however, it is apparent that under the form of organization 
3f the college, property is held by it upon trust for the benefit 
3f the public, subject to revision to the Commonwealth in the 



312 OPINIONS OF THE ATTORNEY-GENERAL. 

event of a voluntary dissolution of the corporation. Except 
for this limited reversion, the situation is that existing in the 
ordinary case of a public charitable corporation. As to whether 
the Commonwealth has any additional rights over the property, 
by reason of the fact that it was acquired by the expenditure 
of public moneys, I express no opinion. 

Though these facts characterize the Massachusetts Agricul- 
tural College as a public charitable corporation, it does not fol- 
low that the college is a State institution. The words "State 
institution" are susceptible of various meanings. Very likely 
the college is such an institution w^ithin the meaning of some 
statutes. In the strict sense of the words, however, it is not, 
in my opinion, a State institution. To be a State institution 
implies that the institution, and the work it carries on, is 
directly under the control of the State, that its officers are 
agents of the State, and that its property is the property of the 
State. The Massachusetts Agricultural College does not an- 
swer these requirements. The fact that it is subject to legisla- 
tive government and control, and the fact that the Common- 
wealth has contributed to its support, do not constitute it a 
State institution. Chalfont v. State, 37 Ohio St. 60. 

Although, as I have said, the Massachusetts Agricultural Col- 
lege is not strictly a State institution, the Legislature, as ap- 
pears from statutes to which I have referred, seems often to 
have treated it as such. Whether action on the part of the 
Commonwealth and of the corporation, which shall establish 
the position of the college as a State institution, in the strict 
sense, and shall beyond question vest the title to its property 
in the Commonwealth, is desirable, is not for me to determine. 

The second question as to which my opinion is desired is, 
whether the trustees of the Massachusetts Agricultural College, 
as individuals, have a legal right to purchase land and later sell 
it to the INIassachusetts Agricultural College at an increased 
price over the original cost. 

My opinion is not sought as to the rights or liabilities of the 
trustees upon any specific state of facts. I can therefore merely 
state the general principle of law which is applicable. The trus- 



DANA M ALONE, ATTORNEY-GENERAL. 313 

ees of the college are substantially directors of the corporation, 
nd, like directors generally, stand in a fiduciary relation to the 
orporation. The rule which applies to fiduciaries is stated in 
^arker v. Nickerson, 112 Mass. 195, 196, as follows: — 

As a general rule, a trustee or agent cannot purchase on his own ac- 
ount what he sells on account of another, nor purchase on account of 
nother what he sells on his own account. He cannot unite in himself 
iie opposite characters of buyer and seller. And if he does so, the ceshd 
lie trust or principal, unless upon the. fullest Icnowledge of all the facts he 
lects to confu'm the act of the trustee or agent, may repudiate it, or he 
lay charge the profits made by the trustee or agent with an implied 
rust for his benefit. 

See, also, Parker v. Nickerson, 137 Mass. 487, 497; Old Do- 
'linion Copper Co. v. Bigelow, 188 Mass. 315, 321, 329; S. C, 
:03 Mass. 159, 177, 178; Hayes v. Hall, 188 Mass. 510, 511; 
imerican Circular Loom Co. v. Wilson, 198 jNIass. 182, 206. 



vVestbokough State Hospital — Trustee — Appointment 
OF Officees — Compensation — Governor and Council. 

I It. 1909, c. 504, § 18, providing that the trustees of the Westborough State Hospital 
I "shall appoint or make provision . . . for appointing such officers as . . . 

may be necessary for conducting . . . the business of the institution; and 
shall determine, subject to the approval of the governor and council, the 
salaries of all the officers . . . ," includes all persons who hold positions in 
such institution which are created by the trustees, and who are paid salaries, 
as distinguished from persons who do not hold distinct positions and are 
emploj-ed for wages, and requires that the proposed compensation of a person 
holding such position shall be approved by the Governor and Council. 

You have requested mv opinion as to what appointees of the xotheTrus- 

^ "^ ^ 1 • ^ 1 tees of the 

;rustees, or of a superintendent by authority oi the trustees, ^y^''/J'g"°g"«i^j 
)f the Westborough State Hospital are persons whose salaries j^'^j'^'^^o. 
iiust be approved by the Governor and Council under the fol- 
owing provisions of St. 1909, c. 504, § 18: — 

They [the trustees] shall appoint a superintendent who shall be a 
physician and who shall constantly reside at the institution, assistant 



314 OPINIONS OF THE ATTORNEY-GENERAL. 

physicians, one of whom in each institution for the insane in which women 
are received as patients and in which more than two assistant physicians 
are employed shall be a woman, and a treasm-er who shall give bond for 
the faitliful performance of his duties; shall appoint or make provision in 
by-laws for appointing such officers as in their opinion may be necessary 
for conducting efficiently and economically the business of the institution; 
and shall determine, subject to the approval of the governor and council, 
the salaries of all the officers. . . . 

It is evident that the Vv^ord "officers" is used in the statute 
in a special sense, and that for a position in the hospital to be 
an "office," within the meaning of the statute providing that 
the trustees shall appoint " such officers as in their opinion may 
be necessary for conducting efficiently and economically the 
business of the institution," it is not necessary that the position 
should have all the attributes of an office considered as a public 
office. 

In my opinion, the intent of the statute is that the Governor 
and Council shall have submitted to them for their approval 
the proposed compensation of all persons who hold positions in 
the institution which are created as positions by the trustees, 
and who are paid salaries, as distinguished from those persons 
who do not hold distinct positions and are employed for wages. 



DANA MALONE, ATTORNEY-GENERAL. 315 

ndependent industrial schools — non-resident pupils — 
Tuition Fees — Maintenance Fund — Disposition of 
Revenue — Cities and Towns — Money received from 
Fees for granting Licenses for the Sale of Intoxi- 
cating Liquor. 

F| t. 1908, c. 572, § 4, which permits the attendance of non-resident pupils at an 
independent industrial school "upon payment by the city or town of his 
residence of such tuition fee as may be fixed by the" State Board of Educa- 
tion, authorizes such Board to establish a tuition fee for such attendance 
which in the view of the Board is fair and reasonable under all the circum- 
M stances of the case. Tuition fees received from non-resident pupils, and 

^ revenue arising from compensation for the work of pupils or from a sale of 
the products of an independent industrial school, should be applied to the 
maintenance of such school, 
loney received by a city or town from fees for the granting of liquor Hcenses and 
appropriated to the maintenance fund of an independent industrial school 
is not "money raised by local taxation" or "money donated or contributed," 
within the meaning of St. 1906, c. 505, § 5, as amended by St. 1909, c. 540, 

a providing that where "a city, town or district, either by moneys raised by 

local taxation or by moneys donated or contributed, has maintained an 
independent industrial school, the commonwealth, . . . shall pay ... to 
such cities, towns or districts a sum equal to one half the sum raised by local 
taxation," and no account should be made thereof in the reimbursement 
provided for in such section. 

You have submitted to me for mv opinion certain questions To the state 

" Board of 

nvolving the construction of St. 1906, c. 505, as amended by Education. 
5t. 1908, c. 572, and St. 1909, c. 457, to which I reply as fol- J ^"<^ ^7 . 
ows: — 

1. "May the Board fix the tuition for non-resident pupils as 
)er section 4, chapter 572, xA.cts of 1908, at that figure in each 
•ase which seems to it fair and reasonable under all the circum- 
itances, or is it bound to determine that tuition fee upon any 
)articular principle?" 

The attendance of pupils at industrial schools established in 
•ities or towns other than that in which such pupils reside is 
Drovided for by section 4 of chapter 572 of the Statutes of 1908, 
-vhich permits such attendance "upon payment by the city or 
:own of his residence of such tuition fee as may be fixed by said 
commission," the commission being the Commission on Indus- 
:rial Education, whose powers and duties, by the provisions of 
5t. 1909, c. 457, devolved upon the commission created thereby 



316 OPINIONS OF THE ATTORNEY-GENERAL. 

by a consolidation of such commission with the Board of Educa- 
tion. No particular principle upon which tuition fees may be 
determined for non-resident pupils is provided by the act, and I 
am of the opinion that such tuition fee should be a sum which 
in the view of the Board is fair and reasonable under all the 
circumstances of the case. 

2. "Should the receipts from non-resident pupils be applied 
to the maintenance fund, the construction fund or the equip- 
ment fund of independent industrial schools?" 

By section 5 of chapter 505 of the Statutes of 1906 it is pro- 
vided that: — 

Wlienever any city or town , . . shall appropriate money for the 
establishment and equipment and maintenance of independent schools 
for industrial training, the commonwealth, in order to aid in the main- 
tenance of such schools, shall pay annually from the treasury to such 
cities, towns, ... a sum proportionate to the amount raised by local 
taxation and expended for the support of schools for each thousand dol- 
lars of valuation, as follows: . . . 

I am of opinion that this provision of law does not contem- 
plate that the Commonwealth should contribute toward the ex- 
pense of construction or equipment of independent industrial 
schools, and that the tuition fee so received should be applied 
to the expenses of maintenance. 

3. "Should the revenue arising from compensation for the 
work of pupils or from a sale of the products of a school be ap- 
plied to the maintenance fund, the construction fund or the 
equipment fund?" 

As I have already said, the law does not contemplate that the 
Commonwealth should share in any of the expenses of estab- 
lishing, constructing or equipping an independent industrial 
school, and its responsibility in the premises begins when a city 
or town has appropriated money raised by taxation for the pur- 
pose of maintenance. It seems to me that the proper view to 
take of receipts of this character is to apply them to the main- 
tenance of the school, so that they, together with tuition fees 
and other receipts which do not represent money raised by tax- 



DANA MALONE, ATTORNEY-GENERAL. 317 

ition, may serve to diminish both the amount to be raised by 
he city or town by taxation and the amount to be reimbursed 
)y the Commonwealth. Thus, the expense of purchasing raw 
naterials to be worked by the pupils into a salable product 
night well be charged against the sums received therefor, and 
he net profit be applied to the maintenance of the school. 

4. " In the case of one independent industrial school, the city 
uthorities have transferred liquor license money to the mainte- 
lance fund of the school. Does such money constitute a part 
)f the sum raised by local taxation for the maintenance of the 
chool, within the meaning of chapter 540, Acts of 1909, for 
^hich reimbursement should be made by the State?" 

It is provided in St. 1906, c. 505, § 5, as amended by St. 1909, 
;. 540, that: — 

Upon certification by the board of education to the auditor of the 
■ommonwealth that a city, town or district, either by moneys raised by 
ocal taxation or by moneys donated or contributed, has maintained an 
ndependent industrial school, the commonwealth, in order to aid in the 
naintenance of such schools, shall pay annually from the treasm-y to 
uch cities, towns or districts a sum equal to one half the sum raised by 
ocal taxation for this purpose : 'provided, that no payment to any city or 
own shall be made except by special appropriation by the legislature. 

Money received by a city or town from fees for liquor licenses 
s neither "money raised by local taxation" nor "money do- 
lated or contributed," and therefore no account should be 
uade thereof in the reimbursement provided for under the sec- 
ion quoted. 



318 OPINIONS OF THE ATTORNEY-GENERAL. 



Massachusetts Highway Commission — Motor Vehicles 
OWNED BY United States Government — Certificate 
OF Registration — Fees. 

Under St. 1909, c. 534, which in section 2 requires the registration of motor vehicles, 
and in section 29 fixes the fees to be collected therefor, with the further pro- 
vision that the Massachusetts Highway Commission "may issue certificates 
of registration for motor vehicles and licenses to operate the same to any 
member of the foreign diplomatic corps without the paj^ment of the fees 
therefor," such commission is not authorized to issue a certificate of registra- 
tion without the payment of fees for motor vehicles owned by the government 
of the United States. 

ML^sachusetta ^ou Tcquest my opinion as to whether the Massachusetts 
Commfssion. Highway Commission has the power to issue for motor vehicles 
June 28. owned by the United States government certificates of registra- 

tion and number plates without the payment of fees. 

On May 8, 1908, I advised your commission as follows: — 

I am of opinion that the motor vehicles in question are exempt from 
registration. They are means employed by the government of the 
United States to execute its constitutional powers, and therefore are 
exempt from taxation and registration in this Commonwealth. 

St. 1909, c. 534, requires the registration of motor vehicles 
(section 2), and fixes the fees to be collected therefor (section 
29). The only provision for furnishing certificates of registra- 
tion for motor vehicles without the payment of fees is contained 
in the last paragraph of section 29, which provides that "the 
commission may issue certificates of registration for motor vehi- 
cles and licenses to operate the same to any member of the for- 
eign diplomatic corps without the payment of the fees therefor." 
There is, therefore, no express authority for the issuing of cer- 
tificates of registration for motor vehicles owned by the United 
States government without the payment of fees. Since the 
statute requires the payment of fees in the case of all persons 
except members of the foreign diplomatic corps, there is no 
authority in the commission to issue, without the payment of 
fees, certificates of registration to the United States government. 
In view of the express provision in favor of members of the for- 



DANA MALONE, ATTORNEY-GENERAL. 319 

:ign diplomatic corps, no such provision can be implied in favor 
if the United States government. 

According to the earlier ruling, certificates of registration are 
lot required for motor vehicles owned by the United States gov- 
rnment. If, however, certificates are desired as a matter of 
onvenience, they must be paid for. 

Of course the rule as to number plates follows the rule as to 
ertificates, since the commission is required (see section 2) to 
iirnish, without charge, number plates to persons whose auto- 
Qobiles are registered according to statutory provisions. 



LICENSE — Intoxicating Liquors — Licensed Premises — 
Certificate of Inspector of Factories and Public 
Buildings — Hotel — Lodging House — Ten or More 
Rooms above the Second Story. 

'he provisions of R. L., c. 104, § 49, requiring that the certificate of an inspector 
of factories and public buildings shall be obtained before an innholder's 
license or a license to sell intoxicating liquors may be granted for any premises, 
is not applicable, under R. L., c. 104, § 25, as amended by St. 1905, c. 347, 
and St. 1907, c. 503, § 1, to a hotel in which not more than ten persons lodge 
or reside above the second story. 

n section 33 of chapter 104 of the Revised Laws, providing in part, that "the 
owner, lessee, proprietor or manager of a hotel, which is not otherwise suitably 
provided with fire escapes, or a lodging house which contains ten or more 
rooms above the second story, shall place ... a knotted rope ... for use 
as a fire escape in every room of said hotel or lodging house used as a lodging 
room, except rooms on the ground floor," the words "which contains ten or 
more rooms above the second story" apply to and describe a lodging house, 
and have no reference to the word "hotel" in said section. 

Your letter of Mav 27 submits for my consideration certain To the 

" Chief of the 

nquiries, of which the first is as follows: — oisu^ct Police. 

Juno 29. 



Is a certificate of an inspector of factories and public buildings required 
efore an innholder's license or a license to sell intoxicating liquors can 
e granted by the city or town authorities (excepting city of Boston) for 
hotel which is less than three stories in height, or has less than ten rooms 
bove the second story, or in which less than ten persons lodge or reside 
bove the second story? 



J20 OPINIONS OF THE ATTORNEY-GENERAL. 

I am advised that the certificate to which you refer is that 
required under the provisions of R. L., c. 104, § 49, which is as 
follows : — 

A license which is required by law, ordinance or by-law to authorize 
any premises to be used for any purpose specified in section twenty-five 
shall not be granted until a certificate for such building or portion thereof 
shall fii'st have been obtained from an inspector as above pro^^ded, and, 
when issued, shall not continue in force after the expiration of such certifi- 
cate. 

Section 25 of that chapter, as amended by St. 1905, c. 347, 
and St. 1907, c. 503, § 1, provides, so far as is material, that: — 

a hotel, family hotel, apartment house, boarding house, lodging house or 
tenement house in which ten or more persons lodge or reside above the 
second story, . . . shall be provided with proper egresses or other means 
of escape from fu'e, sufficient for the use of all persons accommodated, 
assembled, employed, lodged or resident therein; . . . 

Your question, in substance, requires my opinion as to whether 
the words "in which ten or more persons lodge or reside above 
the second story" apply to hotels, family hotels, apartment 
houses, boarding houses, lodging houses and tenement houses, 
or are limited in their application to tenement houses only. 

The earliest legislation relating to the inspection of factories 
and public buildings is to be found in St. 1877, c. 214, which, in 
section 5, provided that all churches, schoolrooms, hotels, halls, 
theatres and other buildings used for public assemblies should 
have such means of egress as the inspectors of factories and 
public buildings should approve; and this provision appears in 
Pub. Sts., c. 104, § 20. By St. 1882, c. 266, § 2, Pub. Sts., 
c. 104, § 20, was amended by adding thereto the follo^nng 
words : — 

Every building three or more stories in height, in whole or in part used, 
occupied, leased or rented, or designed to be used, occupied, leased or 
rented for a tenement to be occupied by more than four families, or a 
lodging house, shall be provided with a sufficient means of escape in case 
of fire, to be approved by the inspector of factories and public buildings. 



I 



DANA MALONE, ATTORNEY-GENERAL. 321 

The following year an act (St. 1883, c. 251) was passed "to 
cure better provisions for escape from hotels and certain other 
lildings, in case of fire." This provided, in part, in section 1, 
at the keeper of a hotel, boarding or lodging house containing 
le hundred or more rooms, "and being four or more stories 
gh," should maintain at least two competent watchmen, prop- 
ly assigned, and on duty between the hours of 9 o'clock at 
gilt and 6 o'clock in the morning; and the keeper of a hotel, 
)arding or lodging house containing more than fifty but less 
an one hundred rooms, "and being three stories high," should 
aintain at least one competent watchman on duty during the 
me hours. Section 2 provided that: — 

Hotels used and occupied as public houses, for the reception and en- 
'tainment of guests, boarding or lodging houses and school buildings, 
ing three or more stories high, and accommodating or ha\'ing the means 

accommodating thirty or more persons, . . . shall be supplied inside 
ereof with proper and sufficient means or appliances for escape, in case 

fire, ... 

In 1888 the law regulating ways of egress and means of escape 
om fire was codified in St. 1888, c. 426, in which section 1 con- 
ins the following provision: — 

Every building now or hereafter used, in whole or in part, as a public 
lilding, public or private institution, schoolhouse, church, theatre, 
ibUc hall, place of assemblage or place of public resort, and evcrj' build- 
g in which ten or more persons are employed above the second story in 
factory, workshop or mercantile or other establishment, and every 
)tel, family hotel, apartment house, boarding house, lodging house or 
nement house in which ten or more persons lodge or reside above the 
cond story, and every factory, workshop, mercantile or other estab- 
hment the owner, lessee or occupant of which is notified in writing by 
e inspector hereinafter mentioned that the provisions of this act are 
■emed by him applicable thereto, shall be provided with proper ways 
egress, or other means of escape from fire, sufficient for the use of all 
■rsons accommodated, assembling, employed, lodging or residing in 
ch building; . . . 

And the same provision, that "every hotel, family hotel, 
)artment house, boarding house, lodging house or tenement 



322 OPINIONS OF THE ATTORNEY-GENERAL. 

house in which ten or more persons lodge or reside above the 
second story," is repeated in St. 1894, c. 481, § 24, and, with the 
single change from "every hotel," etc., to " a hotel," etc., is 
to be found in R. L., c. 104, § 25, as amended by St. 1907, 
c. 503, § 1. 

It appears, therefore, that the regulation of means of escape 
in hotels and boarding or lodging houses originally applied only 
to hotels and boarding or lodging houses which were three or 
more stories in height (St. 1883, § 251), and that such regula- 
tion so limited had been in force for five years when laws rela- 
tive to the inspection of buildings were codified in St. 1888, 
c. 426, where substantially the same language was employed in 
section 1 with reference to hotels and boarding or lodging houses 
that is to be found in existing provisions of law. I see no rea- 
son to believe that by this codification the Legislature intended 
to extend the application of the law to a class of buildings 
w^hich up to that time had been excepted from its provisions, 
or to limit the application of the qualifying words to tenement 
houses, so as to create a distinction between a tenement house 
and a hotel, family hotel, apartment house, boarding house and 
lodging house. The conclusion which I have reached is sup- 
ported by the language of the court which considered this sec- 
tion (then St. 1888, c. 426, § 1), in Perry v. Bangs, 161 Mass. 
35. 36, where the court said: — 

Section 1 of St. 1888, c. 426, fii'st describes the buildings to be subject ■ 
to the provisions of the act, and this description includes "every hotel, 
family hotel, apartment house, boarding house, lodging house, or tene- 
ment house in which ten or more persons lodge or reside above the second 
story." The description ends as follows: "and every factory, workshop, 
mercantile or other establishment the owner, lessee, or occupant of which 
is notified in writing by the inspector hereinafter mentioned that the 
provisions of this act are deemed by him applicable thereto, shall be 
provided with proper ways of egress or other means of escape from fire, 
sufficient for the use of all persons accommodated, assembling, employed, 
lodging, or residing in such building." We assume that the words re- 
quiring a notice in writing from the inspector that he deems the provisions 
of the act applicable to certain establishments apply only to the buildings 
or establishments mentioned in the last clause of the description, and that 



DANA MALONE, ATTORNEY-GENERAL. 323 

hotel in which more than ten persons lodge or reside above the second 
Dry is subject to the provisions of the act, even if no such notice has been 
;^en by an inspector. 

I am constrained to advise you, therefore, that a certificate of 
I inspector of factories and public buildings is not required be- 
re an innholder's license or a license to sell intoxicating liquors 
ay be granted by the city or town authorities for a hotel in 
hich not more than ten persons lodge or reside above the 
cond story. 

Your communication contains certain other inquiries, as fol- 
ws: — 

Does section 33, chapter 104, Revised Laws, apply to any hotel more 

an one story in height outside of Boston? 

Does section 34, chapter 104, Revised Laws, require an annual inspec- 

m by the city or town (except Boston) inspector of buildings, or the 

ief engineer of the fire department, in May, of every hotel of less than 

a rooms above the second story? 

Does section 34, chapter 104, Revised Laws, require knotted ropes or 

tter appUances in every hotel which is not otherwise suitably provided 

th fire escapes, and which is more than one story in height? 

These inquiries relate to sections 33 and 34 of chapter 104 of 
le Revised Laws, and in slightly different phrase present the same 
|iestions. Section 33, so far as it is material, is as follows: — 

The owner, lessee, proprietor or manager of a hotel, which is not othcr- 
ise suitably provided with fire escapes, or of a lodging house which 
■ntains ten or more rooms above the second story, shall place or cause 
be placed a knotted rope or better appliance for use as a fire escape in 
ery room of said hotel or lodging house used as a lodging room, except 
cms on the ground floor. 

Your inquiries, in substance, require my opinion upon the 
uestion whether or not the words "Avhich contains ten or more 
)oms above the second story" qualify the word "hotel," as 
ell as the words "lodging house." 

I am of opinion that a consideration of the history of this 
articular provision makes it clear that the words "which con- 
lins ten or more rooms above the second story" apply to and 



524 OPINIONS OF THE ATTORNEY-GENERAL. 

describe a lodging house, and have no reference to the word 
"hotel" which precedes them. Thus, the provision with re- 
spect to hotels was originally enacted in 1890, and is to be 
found in chapter 307 of that year, and required that : — 

Every owner, lessee, proprietor or manager of a hotel . . . shall . . . 
place or cause to be placed a knotted rope or other better appliance for 
use as a fire escape in every room of said hotel used as a lodging room, 
except rooms on the ground floor. 

The provision with respect to lodging houses containing ten 
or more rooms above the second story was enacted in 1894 (St, 
1894, c. 341); and in the same year the two provisions were 
combined in St. 1894, c. 481, § 44, which is identical with sec- 
tion 33 of chapter 104 of the Revised Laws, except that in the 
latter section the w^ords "for the protection of human hfe ir 
case of fire" are omitted after the words "fire escapes" in the 
third line. 

It follows, therefore, that the description with respect tc 
rooms above the second story is applicable only to a lodging 
house, and does not describe or limit the word "hotel." 



Civil Service — Assistant Commissioner of the Penal 
Institutions Department of the City of Boston. 

The assistant commissioner of the penal institutions department of the city ol 
Boston appointed by the penal institutions commissioner under the provision; 
of St. 1897, c. 395, § 5, is within the classification of "superintendents, assist- 
ant and deputy superintendents, deputies, executive officers and person; 
other than the chief superintendent of departments ..." in civil service 
rule 7, section 1, clause 1, and is subject to the provisions of the civil service 
law and rules. 

cfviflervice ^ ^'^ Fcquest my opinion as to wdiether the position of assist- 

*^'i9io''^^*°°' ^^^* commissioner of the penal institutions department of Bos- 
Juiyu. ^^j^ jg within the classified civil service. 

The penal institutions department is a department of th( 
city of Boston. See opinion of Feb. 16, 1910. The assistant 
commissioner is within the classification of civil service rule 7 
section 1, clause 1, of "superintendents, assistant and deput} 



DANA MALONE, ATTORNEY-GENERAL. 325 

uperintendents, deputies, executive officers and persons other 
han the chief superintendent of departments performing any of 
he duties of a superintendent in the service of any city." The 
act that the position is described as that of "assistant commis- 
ioner" instead of "assistant superintendent" is immaterial, 
ince the duties must be analogous, and in my opinion such as- 
istant commissioner is within the classified service of the city. 
The only remaining question is, whether the position is by 
tatute exempt from civil service rules. It is not so exempt by 
L L., c. 19, § 9, which is the general provision for exemptions, 
lor, in my opinion, is it exempt by any special statutory provi- 
ion. St. 1895, c. 449, § 14, provides that "the institutions de- 
)artment shall be under the charge of one institutions commis- 
ioner." Section 20 provides that: — 

The officer or board in charge of any department created by this act 

. . may, with the approval of the mayor, appoint not exceeding three 

issistants . . . ; and such appointment shall be exempt from the laws re- 

ating to civil service in the commonwealth and the cities and towns thereof. 

St. 1897, c. 395, § 5, after changing the name of the depart- 
nent, provides that "the penal institutions commissioner may, 
.vith the approval of said mayor, appoint one assistant." St. 
1909, c. 486, § 15, repeals St. 1895, c. 449, § 20, except as to the 
election department. The office of assistant commissioner is, 
:herefore, created by St. 1897, c. 395, and as to it there is no 
specific provision for exemption from the civil service. 



Civil Service — Officers whose Appointment is subject to 
Confirmation by City Council — Constables. 

C"onstable3 whose appointments must be confirmed by the city council of the city 
of Boston are "officers . . . whose appointment is subject to confirmation 
by the . . . city council" within the meaning of R. L., c. 19, § 9, providing 
that such officers, among others, shall not be affected as to their selection or 
appointment by the civil service rules. 

You have requested mv opinion as to whether constables To the 

^ ' ^ •IP Civil Service 

\vhose appointments must be confirmed by the city council ot Commission, 
the city of Boston are officers within the provisions of R. L., J"'y 2i . 



326 OPINIONS OF THE ATTORNEY-GENERAL. 

c. 19, § 9, and therefore exempt from civil service classifica- 
tion. 

R. L., c. 19, §§ 6 to 8, inclusive, authorize the making of rules 
regulating the selection of officers and employees in the service 
of the cities of the Commonwealth. Under authority of these 
sections certain rules have been made, one of which places 
within the classified service ** constables in the service of any 
city receiving pay other than the statutory fees." Civil service 
rule 7, class 18. Constables in the service of the city of Boston 
receiving pay other than the statutory fees, are, therefore, 
within the civil service classification, unless expressly excepted 
therefrom by statute. 

R. L., c. 19, § 9, provides that: — 

Judicial officers and officers elected by the people or by a city council, 
or whose appointment is subject to confirmation by the executive council 
or city council of any city, . . . police and fire commissioners and 
chief marshals, or chiefs of police and fu-e departments, shall not be 
affected as to their selection or appointment by any rides made as afore- 
said; but, with the above exception, such rules shah apply to members 
of police and fire departm.ents. 

The constables in question are not expressly excepted from 
the application of the rules unless they 'are "officers . . . whose 
appointment is subject to confirmation by the . . . city 
council." 

In towns, "the selectmen may appoint as many constables 
... as in their opinion may be necessary." R. L., c. 25, § 87. 
In cities, the mayor and aldermen have the powers of select- 
men. R. L., c. 26, § 2. When an appointment is to be made 
by the mayor and aldermen, the mayor has "the exclusive 
power of nomination, subject to confirmation or rejection by 
the aldermen." R. L., c. 26, § 8. In the city of Boston, the 
mayor and city council have the powers of a board of alder- 
men. St. 1909, c. 486, § 1. 

The principal duty of a constable is the service of process, 
both criminal and civil. A constable may, however, serve civil 
process only if he has given the statutory bond. R. L., c. 25, 
§§ 88 to 93, inclusive. 



DANA MALONE, ATTORNEY-GENERAL. 327 

In view of the statutory provisions referred to, I am of opin- 
m that a constable is an officer within the meaning of the 
,ord as used in R. L., c. 19, § 9. See Leavitt v. Leavitt, 135 
lass. 191, 193; Brown v. Russell, 166 Mass. 14, 26; Attorney- 
ieneral v. TiUinghast, 203 INIass. 539. "His appointment is 
ubject to confirmation by the . . . city council" of Boston. 
[itorney-General v. Douglass, 195 Mass. 35, 38. The constables 
Q question are, therefore, in my judgment, exempt from civil 
ervice classification. 

The opinion which I have expressed applies to constables, but 

, lot to members of the pdlice department. Police officers are, in 

j ;eneral, classified within civil service rules. See rule 7, classes 

' A to 17, inclusive. The statute which provides for exemptions 

rem the application of the civil service rules further provides 

hat "such rules shall apply to members of police . . . depart- 

nents." R. L., c. 19, § 9. Moreover, in the city of Boston not 

)nly regular and reserve police, but also special police, are ap- 

Dointed by the police commissioner and not by the mayor and 

:ity council. St. 1887, c. 177; St. 1898, c. 282; St. 1906, c. 291, 

MO. 



City or Town — Money borrowed in Anticipation of 
Taxes — Limit of Authority to issue Notes in Payment. 

I Under the provisions of R. L., c. 27, § 6, authorizing a city or town, by a majority 
vote, to "incur debts for temporary loans in anticipation of the taxes of the 
municipal year in which such debts are incurred and expressly made payable 
therefrom by such vote," a town may not legally issue notes for debts incurred 
in anticipation of taxes in any one year when such debts exceed in the aggregate 
the total amount which the town has by vote authorized to be so borrowed. 

A town may not, under the provisions of R. L., c. 27, § 6, authorize an amount to 
be borrowed in anticipation of taxes which exceeds the amount of the tax 
assessed or to be assessed for the year within which the debt is contracted. 

By your letter of July 29 you desire to be advised as to xotho 
whether or not a town has authoritv "to legally issue notes the Bureau 

.of Statistics. 

m anticipation of taxes for any one year to an amount m the ^^'^J^^^g 
aggregate in excess of the total amount which the town b\- vote 
has authorized may be borrowed. For example: if a town is 
authorized to borrow S50,000 in anticipation of taxes, may it 



328 OPINIONS OF THE ATTORNEY-GENERAL. 

borrow in excess of that sum, provided at any one time it has 
not more than S50,000 outstanding?" 

I assume that you refer to money borrowed in anticipation of 
taxes under the provisions of R. L., c. 27, § 6, which is as fol- 
lows : — 

Cities and towns may by a majority vote incur debts for temporary 
loans in anticipation of the taxes of the municipal year in which such 
debts are incurred and expressly made payable therefrom by such vote. 
Such loans shall be payable within one year after the date of their incur- 
rence, and shall not be reckoned in determining the authorized Umit of 
indebtedness. 

Under this provision of law I am of opinion that the amount 
of the debt which the town has by vote duly authorized to be 
incurred may not in any case be exceeded, and that the au- 
thority of the town officers in the premises is exhausted when 
they have once contracted a debt to the extent of the sum set 
forth in such vote. It follows, therefore, that notes may not be 
legally issued for debts incurred in anticipation of taxes in any 
one year when such debts in the aggregate exceed the total 
amount w^hich the town has by vote authorized to be so bor- 
row'ed. See 1 Op. Atty.-Gen. 24, 65, 418; Agaivam National 
Bank V. Inhabitants of South Hadley, 128 Mass. 503; Smith v. 
Dedham, 144 Mass. 177. 

You also desire to be advised "as to what is the limit, if any, 
upon the amount which can be borrowed by a municipality in 
anticipation of taxes." 

Section 6, above quoted, imposes no express limitation upon 
the authority of a town to incur debts for temporary loans, but, 
by its implication, such authority must be limited to the 
amount of the tax assessed or to be assessed in the year during 
which such debt is incurred. Thus, if the debt is incurred be- 
fore the tax has been actually assessed, its amount must not 
exceed the amount of taxes to be levied for the year within 
which such debt is contracted. If the debt is incurred after the 
taxes have been assessed and before they are collected, it must 
not in any event exceed the amount of tax money assessed for 
that year remaining uncollected. 



DANA MALONE, ATTORNEY-GENERAL. 329 



STREET Railway Company — Issue of Bonds — Board of 
Railroad Commissioners — Approval — Sale at Less 
THAN Par Value. 

The pro%'ision of St. 1906, c. 463, part III., § 103, that for the purposes therein 
specified a street railway company "may . . . increase its capital stock or 
issue bonds, ... to such an amount, ... as the board of railroad com- 
missioners shall determine will realize the amount which has been properly 
expended or will be properly required ... for such of the purposes aforesaid 
as are set out in its petition to said board," authorizes the Board of Railroad 
Commissioners to approve an issue of bonds and the sale thereof by a street 
railway company at less than par value, provided that the price realized by 
such sale furnishes a fair and reasonable equivalent for the securities so 
disposed of. 

The Board of Railroad Commissioners, having acted upon the petition of a street 
railway company and determined the amount of bonds which, if sold at par, 
would realize the amount properly expended or properly required, as set 
forth in the petition, upon a subsequent petition may take into consideration 
the fact that the petitioner has been unable to dispose of the bonds so 
authorized at par, and may approve a further issue of bonds for the same 
purpose in order to meet the deficit so created. 

5t. 1910, c. 536, amending St. 1906, c. 463, part III., § 103, and providing that 
the Board of Railroad Commissioners, in authorizing an issue of bonds under 
section 103, "may prescribe the minimum price at which such bonds shall 
be sold, and may modify such price from time to time," and where the mini- 
mum price so established is less than par, may provide for the establishment 
of a sinking fund which at the maturity of the bonds will amount to the 
difference between the selling price and the par value thereof, is applicable 
to a petition pending at the time of its passage. 

By a communication dated September 23 you have requested J°Rafiroad'^'^ 
ny opinion upon certain questions arising under the provisions Comnwsioners. 
|)f St. 1906, c. 463, part III., § 103, as amended by St. 1910, o<=!f^2i. 
p. 536. Your communication states that under the statute first 
nentioned, and prior to the enactment of the amendment, the 
Board approved : — 

m issue by a street railway companj- of bonds of a par or face value 
, 'qual to the amount of certain floating indebtedness properly incurred 
jy the company in the construction and equipment of its railway and in 
he purchase of property necessary for its operation. The company 
?old the bonds, and realized therefrom an amount less than their par 
>'alue and less than the amount of floating indebtedness which it was 
:>roposed to pay. After applj'ing the proceeds of the sale of said bonds 
said floating indebtedness, the company filed its petition with the 
Board for approval of the issue of additional bonds to an amount sufficient 



530 OPINIONS OF THE ATTORNEY-GENERAL. 

to pay the balance of tlie floating indebtedness not paid with the proceeds 
of the bonds previously approved by the Board and issued and sold by 
the company. During the pendency of this petition, the General Court 
enacted chapter 536 of the Acts of 1910. 

Upon these facts, and upon the assumption that the Board is 
satisfied that the petitioning street railway company acted in 
good faith in the sale of the bonds first approved and obtained 
a fair market value therefor, the following specific questions are 
asked: — 

1. Can the Board now, under the authority conferred upon it by said 
section 103 of Part III. of chapter 463 of the Acts of 1906, as amended 
by chapter 536 of the Acts of 1910, approve, upon the company's pending 
petition, the issue of such additional bonds as this Board may deem to be 
reasonably necessary to realize the balance of the amount of floating 
indebtedness, previously found by the Board to have been properly 
incurred, and which the bonds previously approved by it had not been 
sufficient entirely to pay? 

2. Can the Board now, under said statutes, and on the company's 
pending petition, if the Board approves the issue of any additional bonds 
as prayed for in said petition, require the company to establish a sinking 
fund, as provided in said chapter 536 of the Acts of 1910? 

3. Is it necessary for said company to authorize and file a new petition 
subsequent to the enactment of chapter 536 of the Acts of 1910, in order 
to give this Board jurisdiction under said act to require the company to 
establish a sinking fund under the provisions thereof? 

Section 103 of part III. of chapter 463 of the Acts of 1906 
provides as follows : — 

A street railway company, for the purpose of building an extension, 
or of acquiring land for pleasure resorts, or of acquiring or building power 
houses or car houses or park buildings, or of acquiring or equipping addi- 
tional rolling stock, or of changing its motive power, or of furnishing 
electricity to a town for light, or of abolishing grade crossings, or of paying 
betterment assessments for widening or otherwise altering streets, or of 
complying with any requirements lawfully imposed, or of making perma- 
nent investments or improvements, or of acquiring any additional real 
or personal property necessary or convenient for its corporate objects, or 
of refunding its funded debt, or for the payment of money borrowed or 
indebtedness incurred for any of the foregoing purposes, or for other 



^ 



DANA MALONE, ATTORNEY-GENERAL. 331 

imilarlj'- necessary and lawful purposes, may, in accordance with the 
)rovisions of sections one hundred and seven, one hundred and eight, one 
lundred and eleven and one hundred and twelve of Part III, and of 
ections forty-eight to fifty-six, inclusive, of Part II, increase its capital 
tock or issue bonds, secured by mortgage or otherwise, to such an amount, 
)eyond the amounts fixed and limited by its agreement of association 
ir its charter, or bj' any special law, as the board of railroad commissioners 
hall determine will realize the amount which has been properly expended 
ir will be properly required, and as said board shall approve for such of 
he purposes aforesaid as are set out in its petition to said board. 

To the purposes for which a street railway company might in- 
•rease its capital stock, as thus set forth, St. 1909, c. 485, added 
he further purpose of supplying itself with w^orking capital. 

Sections 107 to 112 of part III. of the chapter last quoted 
'ontain certain directions and restrictions upon the issuance of 
-tocks, bonds, coupon notes and other evidences of indebtedness 
)y street railway companies, which are not pertinent to the 
present inquiry. 

Sections 48 to 56 of part II. regulate the issuance by a rail- 
•oad corporation of coupon or registered bonds, coupon notes or 
)ther evidences of indebtedness payable at periods of more than 
:welve months from the date thereof to provide means for fund- 
ing its floating debt, or for the payment of money borrowed for 
my lawful purpose, or authorize the mortgage of a part or all of 
its railroad, equipment or franchise, or a part or all of its real 
)r personal property, together with provisions for the operation 
md management of the railroad in case there is a default in the 
performance of the conditions of the mortgage. 

St. 1910, c. 536, is as follows: — 

Section one hundred and three of Part III of chapter four hundred 
md sixty-tln-ee of the acts of the year nineteen hundred and six is hereby 
imended by adding at the end thereof the following: — Said board, in 
luthorizing the issue of any bonds under this section may prescribe the 
ninimum price at which such bonds shall be sold, and may modify such 
price from time to time, as the board may deem proper. Whenever said 
Joard authorizes or has approved the issue or sale of bonds of a face 
\-alue in excess of the amount determined by it to have been properly 
expended or to be properly required, it may, in its order of approval, or 



332 OPINIONS OF THE ATTORNEY-GENERAL. 

at any time thereafter, require the company issuing such bonds to estab- 
lish a sinking fund, estimated to realize at the maturity of said bonds a 
sum equal to the difference between the amount or amounts for which 
such bonds were authorized or approved, and the face value of the bonds 
so authorized or approved therefor, and may designate some Massachu- 
setts trust company as trustee and custodian of such fund, and may from 
time to time change such trustee. The provisions of any agreement 
relative to said sinking fund, made between the street railway company 
and the trust company selected as such trustee, shall be submitted to said 
board and shall not be valid until approved by it. 

This statute created no new purpose for which, subject to the 
approval of the Board of Railroad Commissioners, bonds may 
be issued. Its only effect is to confer upon the Board authority 
to prescribe a minimum price at which bonds may be sold, and, 
where such minimum price is less than par, to provide for the 
establishment of a sinking fund which will at maturity amount 
to the difference between the selling price and the par value of 
the bonds. It follows, therefore, that the first question to be 
decided is, whether or not section 103, without reference to the 
amendment passed in 1910, either expressly or by implication, 
places a limitation upon the sale of bonds issued under its pro- 
visions for the purpose of raising money to pay for work of con- 
struction or to fund floating indebtedness or for any other law- 
ful purpose. 

I am of opinion that there is nothing in section 103, or in 
the other sections therein referred to, which limits the power of 
a street railway company to dispose of bonds, lawfully issued, 
at less than par if the price obtained is the fair market value of 
the securities sold. Generally speaking, a corporation, in the 
absence of statutory prohibition or restriction, may issue its 
bonds or other evidences of indebtedness at a discount, or may 
dispose of them at less than par, provided that the price realized 
or the work or materials furnished give a reasonable equivalent 
for the securities disposed of. Gamble v. Queens County Water 
Co., 123 N. Y. 91; Coe v. Columbus, etc., Railroad Co., 10 Ohio, 
372; Northside Railway Co. v. Wonhington, 88 Tex. 562. And 
this power in railroad or street railway corporations has been 
uniformly recognized by the Legislature of this Commonwealth. 



N 



DANA MALONE, ATTORNEY-GENERAL. 333 

3o in St. 1854, c. 286, which provided that a railroad corpora- 
tion established by the laws of the Commonwealth might issue 
bonds for " the purpose of funding its floating debt or for money 
«hich it may borrow for any purpose sanctioned by law," and 
v\hich, in Commonicealth v. Smith, 10 Allen, 448, was held to 
prohibit the issuance of bonds for any purpose and in any man- 
ner other than that therein provided, it was expressly enacted 
in section 5 that "all bonds or notes which have been, or which 
may hereafter be, issued by any railroad corporation, shall be 
binding and collectible in law, notwithstanding such notes or 
bonds were negotiated and sold by such corporation, or their 
agents at less than par." And this provision is re-enacted in 
section 51 of part II. of chapter 463 of the Statutes of 1906, 
and is by reference applicable to bonds issued under section 103 
of part III. of such chapter. 

I see nothing in the language of section 103 itself which either 
directly or by implication negatives the power so recognized. 
On the contrary, it expressly provides that a street railway 
company for the purposes specified " may . . . issue bonds . . . 
to stick an amount ... as the board of railroad commissioners 
shall determine icill realize tlie amount which has been properly 
expended or will he properly required, and as said board shall ap- 
prove for such of the purposes aforesaid as are set out in its 
petition to said board," — a choice of words by which, in my 
opinion, the Legislature clearly intended to recognize that, if 
bonds cannot be disposed of for their par value after an effort 
so to do made in good faith and with due diligence, the amount 
to be authorized by the Board, computed upon the basis of a 
sale at par, will not realize an amount equal to that which has 
been properly expended or will be properly required for the pur- 
poses specified, and to authorize the Board to determine the 
amount, expressed in the par value of the bonds, which icill 
realize such amount. This view is confirmed by the language 
of St. 1910, c. 536, which could only have been adopted upon 
the theory that section 103 already recognized that it might be 
necessary to dispose of bonds at less than par and authorized 
them to be so disposed of; for such statute does not confer 



334 OPINIONS OF THE ATTORNEY-GENERAL. 

upon either the street railway company or the Board of Rail- 
road Commissioners any new power in the premises, but pro- 
vides simply that the Board, in authorizing the issue of bonds 
under section 103, may prescribe a minimum price at which 
they may be sold, and where such minimum price is established 
may provide for a sufficient sinking fund for their redemption 
at par. INIoreover, the Legislature must be deemed to have 
been well aware that, from the condition of the market or from 
other causes entirely beyond the control of the petitioning street 
railway company, it might often be that such company would 
be unable to dispose of its bonds at par, and, if restricted to an 
issue of an amount which in par value did not exceed the in- 
debtedness to be met, would be forced to make the deficit good 
by other means, and would be left with a floating indebted- 
ness originally incurred for a purpose for which bonds might be 
issued, but which could no longer be bonded, and must be met 
from earnings or carried as a permanent floating debt. 

Adopting this construction of the provisions of section 103 of 
part III. of chapter 463 of the Acts of 1906, I reply specifically 
to the questions submitted by your communication as fol- 
lows : — 

1. In view of the conclusion above reached, the first inquiry 
of the Board is reduced in substance to an inquiry whether the 
Board, having acted upon a petition of a street railway com- 
pany and determined the amount of bonds which if sold at par 
value would realize the amount properly expended or properly 
required, as set forth in the petition, may, upon a subsequent 
petition, take into consideration the fact that, after an effort 
made in good faith and with all diligence to dispose of the 
bonds so authorized at par, the petitioner had failed to do so, 
and that the amount realized by actual sale upon the market 
was insufficient to accomplish the whole purpose for which the 
bonds were issued, and approve a further issue of bonds for the 
same purpose in order to meet the deficit so created. To this 
question I am of opinion that the reply should be in the affirm- 
ative. If the Board might have approved the issue of the ad- 
ditional bonds in the first instance, I see no reason why they 



DANA MALONE, ATTORNEY-GENERAL. 335 

night not subsequently approve them upon a presentation of 
ill the facts showing failure to realize a sufficient amount by 
:he sale of the bonds first approved for the same purpose. 

2. St. 1910, c. 536, goes no further than to require the Board 
:o make certain additional regulations and restrictions with ref- 
erence to any issue of bonds which it may authorize under the 
Drovisions of section 103, and I am of opinion that it may apply 
IS well to a pending petition as to one brought after its passage, 
[t interferes with no vested rights of the petitioning company, 
ind, therefore, is not subject to any objection upon constitu- 
;ional grounds. 

3. The conclusion reached in replying to the second question 
requires that the third question of the Board be answered in 
the negative. 



Taxation — Domestic Corporation — Minimum Limit of 
Tax — Local Taxation — Deductions — Mortgage on 
Real Estate. 

I In determining the minimum limit of tax upon a domestic corporation under the 
provisions of St. 1909, c. 490, part III., § 43, that " the total amount of tax 
to be paid by such corporation in any year upon its property locally taxed 
in this commonwealth and upon the value of its corporate franchise shall 
amount to not less than one tenth of one per cent of the market value of its 
capital stock at the time of said assessment as found by the tax commissioner," 
a mortgage on real estate taxable as real estate to the mortgagor, and held 
by a, domestic corporation, is not included within "its property locally taxed 
in this commonwealth," and the tax paid by the mortgagor on such real 
estate may not be used to reduce the amount of the franchise tax to be paid 
by the corporation holding such mortgage. 

You have requested mv opinion upon a question which is To the Tax 

! ^ ^ t I ^ ^ ^ Commissioner. 

substantially as follows: in determining the minimum limit of q^^^^^JJ 27. 
tax upon a domestic corporation, is a mortgage on real estate 
taxable as real estate to the mortgagor, held by such corpora- 
tion, included within "its property locally taxed in this Com- 
monwealth"? 

St. 1909, c. 490, part IIL, § 43, relative to the taxation of 
domestic corporations, provides in part that : — 

the total amount of tax to be paid by such corporation in any year upon 
its property locally taxed in this commonwealth and upon the value of 



336 OPINIONS OF THE ATTORNEY-GENERAL. 

its corporate franchise shall amount to not less than one tenth of one 
per cent of the market value of its capital stock at the time of said assess- 
ment as found by the tax commissioner. 

In my opinion, a mortgage on real estate, taxable as real 
estate to the mortgagor, held by a domestic corporation, is not 
included within "its property locally taxed in this Common- 
wealth;" in other words, the tax paid by the mortgagor on such 
real estate is not to be used to reduce the amount of the fran- 
chise tax to be paid by the corporation holding such mortgage. 

In determining the minimum franchise tax to be paid by a 
domestic corporation, both the amount ''to be paid by such cor- 
poration in any year upon its property locally taxed in this 
Commonwealth" and the amount to be paid by it "upon the 
value of its corporate franchise" are to be considered. Taxes, 
if any, to be paid by anybody else upon the property of the 
corporation are not to be included. It follows that the tax to 
be paid upon mortgaged real estate is not to be included when 
it is not to be paid by the corporation holding the mortgage. 
The interest of a mortgagee in real estate may be assessed to 
him as real estate, or the whole estate may be assessed to the 
mortgagor in possession. St. 1909, c. 490, part I., §§ 15-18, 
inclusive, § 45. Abbott v. Frost, 185 Mass. 398; Sullivan v. Bos- 
ton, 198 Mass. 119. Only when the mortgagee's interest is 
assessed to the mortgagee can it properly be said that the tax 
is to be paid by it. This is not such a case. The situation is 
similar to that in the case of leased real estate. Such real 
estate may be assessed to the lessor or to the lessee. St. 1909, 
c. 490, part I., §§ 15 and 20. In an opinion of my predecessor 
(2 Op. Atty.-Gen. 556) you were advised that real estate leased 
by a domestic corporation is "its real estate . . . subject to 
local taxation" within the meaning of St. 1903, c. 437, § 72 
(now St. 1909, c. 490, part III., § 3), and that the value of such 
real estate is to be deducted from the value of the corporate 
franchise "if it appears that such leased real estate is taxed to 
the corporation." In both cases the actual method of taxation 
employed governs. 

The fact that in a particular case a corporation which is the 



I 



DANA MALONE, ATTORNEY-GENERAL. 337 

iiortgagee by reason of an agreement with the mortgagor bears 
.he burden of the tax on its interest, although such tax is not 
issessed to it, is immaterial. The purpose of the minimum 
imit upon the amount of the franchise tax was to require each 
lomestic corporation to pay some tax directly. As was ob- 
erved by the committee which reported the business corpora- 
ion law (see report, pp. 60-61), a corporation holding only 
ecurities would not, in the absence of such a provision, be sub- 
ect to taxation in the Commonwealth. The reason that such a 
orporation would not be subject to taxation is that the value 
f its non-taxable securities would be deducted from the value 
f its franchise before the tax was computed. The reason for 
he deduction of the value of such securities is that the value 
epresented by them is otherwise taxed. The corporation hold- 
ag such securities indirectly bears the burden of such taxation, 
et the Legislature intended that such corporation should be 
iirectly taxed on its franchise, and to accomplish that purpose 
•rovided for the minimum limit. A corporation holding a 
aortgage on real estate taxable as real estate to the mortgagor 
i in a situation analogous to that of a corporation holding non- 
axable securities. By the same reasoning, it should not escape 
he payment of a franchise tax even if it indirectly bears the 
lurden of the tax assessed on its interest in the mortgaged real 
state. 

Taxation — Towns — Assessors — Term of Office. 

ince St. 1907, c. 579, § 1, providing in part that "each assessor in every city and 
town in the commonwealth . . . shall be elected or appointed for the term 
of three years . . . ," took effect on Jan. 1, 1908, there are no towns which 
may choose assessors for one year, as provided in St. 1907, c. 560, § 371. 

You request my opinion as to whether the provision of St. com'j^iSk^ner. 
907, c. 560, § 371, which authorizes towns to vote that select- November 2. 
len shall act as assessors, is still in force. 

That section provides, in part: — 

A town which chooses its assessors or overseers of the poor for one year 
lay, instead of electing such officers, provide by vote that the selectmen 
lall act also as assessors or as overseers of the poor, or both. 



338 OPINIONS OF THE ATTORNEY-GENERAL. 

St. 1907, c. 579, § 1, provides, in part, that: — 

Each assessor in every city and town of the commonwealth, except in 
the city of Boston, shall be elected or appointed to hold office for the 
term of three years and until his successor is duly elected or appointed. 

Section 2 provides that the act shall take effect on Jan. 1, 1908. 

Since Jan. 1, 1908, therefore, there are no towns which choose 
their assessors for one year. There are, therefore, no towns 
which may provide by vote that the selectmen shall act as 
assessors. 

Savings Banks — Legal Investments — Street Railway 
Company — Bonds — Dividend equal to Five Per 
Cent, for Five Years — Returns — Nine Months 
ending June 30, 1910 — Board of Railroad Commis- 
sioners — Certification. 

The Board of Railroad Commissioners, under the provision of St. 1908, c. 590, § 68, 
sub-division fifth, that deposits and the income derived therefrom may be 
invested by savings banks "in the bonds of any street railway company . . . 
which has earned and paid in dividends in cash an amount equal to at least 
five per cent, upon all its outstanding capital stock in each of the five years 
last preceding the certification by the board of railroad commissioners herein- 
after provided for ; " and of St. 1909, c. 502, § 1, that the annual returns required 
by law to be made to such Board shall be returns for the year ending on the 
thirtieth day of June; and section 2, that subh returns for 1910 "shall cover 
the doings of street railway companies . . . for the preceding nine months 
only, and said period of nine months shall be deemed, under the pro\'isions 
of section sixty-eight of chapter five hundred and ninety of the acts of the 
year nineteen hundred and eight, sub-division Fifth, ... as one of the five 
years therein referred to, but the requirement that dividends equal to at 
least five per cent, upon all the outstanding capital stock of a street railway 
company shall have been earned and paid in cash in each of said five years, 
shall not apply to said period of nine months; and any street railway company 
which shall have earned and paid in dividends in cash an amount equal to 
five per cent, upon all its outstanding capital stock in each of the five preceding 
years with the exception of said nine months period, shall be included in the 
list to be certified and transmitted by the board," — may certify and transmit 
to the Sa\dngs Bank Commissioner the name of a street railway company 
which has paid dividends of 2 per cent, for the year ending Sept. 30, 1905, 
5 per cent, for the years ending Sept. 30, 1906, 1907, 1908 and 1909, respec- 
tively, and 2 per cent, on common and 3 per cent, on preferred stock for 
the nine months ending on June 30, 1910. 

^°RafiT?ad"*^ Your letter of November 23 requires my opinion upon the 

comnussioners. construction of chapter 502 of the Statutes of 1909, which pro- 

ovemjT . ^,jjgg^ jj^ section 1, that the annual returns required by law to 



I DANA MALONE, ATTORNEY-GENERAL. 339 

|e made to the Board of Railroad Commissioners shall be re- 
' irns for the year ending on the thirtieth day of June, and 

lall be transmitted to the Board on or before the thirtieth day 

■ the following September. 

Section 2 is as follows: — 

The return required by the preceding section to be filed for the period • 
iding on the thirtieth day of June, in the year nineteen hiuidred and 
n, shall cover the doings of street railway companies and every person, 
•m, association or corporation doing an express business upon either a 
ilroad or railway in this commonwealth for the preceding nine months 
ily, and said period of nine months shall be deemed under the provi- 
Diis of section sixtj''-eight of chapter five hundred and ninety of the acts 
the year nineteen hundred and eight, sub-division Fifth, relative to the 
vestment of deposits, and the income derived therefrom, of savings 
inks in the bonds of street railway companies, as one of the five years 
lerein referred to, but the requirement that dividends equal to at least 
ve per cent upon all the outstanding capital stock of a street railway 
)mpany shall have been earned and paid in cash in each of said five 
3ars, shall not apply to said period of nine months; and any street rail- 
ay company which shall have earned and paid in di\'idends in cash an 
naount equal to five per cent upon all its outstanding capital stock in 
ich of the five preceding years, with the exception of said nine months 
3riod, shall be included in the Ust to be certified and transmitted by the 

bard. The list required by the pro\asions of said section sixty-eight 
) be certified and transmitted to the bank commissioner shall, after the 

I assage hereof, be so certified and transmitted on or before the fifteenth 
ay of December in each year. 

St. 1908, e. 590, § 68, sub-division fifth, which is referred to in 
le above section, provides that a savings bank may invest — 

In the bonds of any street railway company incorporated in this com- 
lonwealth, the railway of which is located wholly or in part therein, 
ad which has earned and paid in dividends in cash an amount equal to 
: least five per cent upon all its outstanding capital stock in each of the 
ve years last preceding the certification by the board of raihoad commis- 
oners hereinafter provided for. No such investment shall be made 
nless said company appears from returns made by it to the board of 
lilroad commissioners to have properly paid said dividends without im- 
airment of assets or capital stock, and said board shall on or before the 
fteenth day of January in each year certify and transmit to the bank 
DHimissioner a Ust of such street railway companies. 



340 OPINIONS OF THE ATTORNEY-GENERAL. 

Dividends paid by way of rental to stockholders of a leased street 
railway company shall be deemed to have been earned and paid by said 
company within the meaning of this clause, provided that said company 
shall have annually earned, and properly paid in dividends in cash, with- 
out impairment of assets or capital stock, an amount equal to at least 
five per cent upon all its outstanding capital stock in each of the five fiscal 
years next preceding the date of the lease thereof. 

If two or more street railway companies have been consohdated by 
purchase or otherwise during the five years prior to said certification, the 
payment severally from the earnings of each year of dividends equivalent 
in the aggregate to a dividend of five per cent on the aggregate capital 
stocks of the several companies during the years preceding such con- 
solidation shall be suflEicient for the purpose of this act. 

Your letter states that a street railway company has paid 
dividends of 2 per cent, for the year ending Sept. 30, 1905, 5 
per cent, for the year ending Sept. 30, 1906, 5 per cent, for the 
year. ending Sept. 30, 1907, 5 per cent, for the year ending 
Sept. 30, 1908, 5 per cent, for the year ending Sept. 30, 1909, 
and 2 per cent, on common stock and 3 per cent, on preferred 
vStock for the nine months ending on June 30, 1910. 

Your inquiry is as follows : — 

Assuming that said company appears, from returns made by it to the 
Board of Railroad Commissioners, to have annually earned and properly 
paid said dividends without impairment of assets or capital stock, is it 
lawful for the Board to certify and transmit to the Bank Commissioner 
the said company as a street railway company entitled to have its bonds 
a legal investment for savings banks? 

Upon the facts submitted, I am of opinion that the company 
to which you refer is within the requirements of section 2 of 
chapter 502 of the Statutes of 1909, and that the Board may 
properly certify and transmit to the Bank Commissioner the 
name of such company as a street railway company entitled to 
have its bonds a legal investment for savings banks, in accord- 
ance with the provisions of law already cited. The apparent 
purpose of such section is to provide that, while the period of 
nine months ending on June 30, 1910, and covered by the re- 
turn which is provided for, is to be counted as one year in 



DANA MALONE, ATTORNEY-GENERAL. 341 

determining whether or not a street railway company may be 
ertified in accordance with the provisions of St. 1908, c. 590, 
68, sub-division fifth, the requirement with respect to divi- 
ends is not to be appHed to such period of nine months; or, 
1 other words, if the requirement with respect to dividends has 
een compUed with by a street railway company in four years, 
icluded within a period of five consecutive years, of which one 
hall consist of the nine months ending on June 30, 1910, such 
ompany shall be included in the list to be certified and trans- 
litted by the Board of Railroad Commissioners. It has been 
Liggested that, so construed, the provision is applicable only to 
ompanies which have already completed a period of five years 
uring which dividends have been earned and paid equal to at 
?ast 5 per cent, upon all their outstanding stock; and that so 
luch of the section as provides that 

ay street railway company which shall have earned and paid in dividends 
1 cash an amount equal to five per cent upon all its outstanding capital 
:ock in each of the five preceding years, with the exception of said nine 
lonths period, shall be included in the list to be certified — 

equires all companies which have not already paid the neces- 
ary dividends for five years to pay such dividends for five full 
ears during a period of five years and nine months, which also 
icludes the nine months ending on June 30, 1910. I am 
nable to appreciate the distinction so created, however, and 
m of opinion that the language quoted is to be taken in 
onnection with the earlier provision, that such nine-months 
eriod is to be construed, for the purpose of St. 1908, c. 590, 
68, sub-division fifth, as one year during which street railway 
ompanies are not required to earn and pay in cash a 5 per cent, 
ividend, and is merely declarative of the authority of the 
>oard to certify and transmit a list of the companies which 
omply with the provisions of the section. 



342 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
Director of 
the Bureau 
of Statistics. 

1910 
December 22. 



Towns — Issue of Notes — Demand Notes — Town 
Treasurer. 

St. 1910, c. 61G, § 1, providing that each note issued by a town shall state "the 
date when it shall become due for payment," and R. L., c. 27, § 6, providing 
that loans in anticipation of taxes shall "be payable within one year after 
the date of their incurrence," do not prohibit the issue by the town of a note 
payable on demand. 

A town note may not, under the provisions of St. 1910, c. 616, § 1, be made payable 
to the town treasurer. 

I have your letters of the 15th inst., in which you make cer- 
tain inquiries in regard to town notes. 

You inquire whether a town may legally issue a note payable 
on demand, and especially if it may issue a note payable on 
demand to obtain money in anticipation of taxes. This inquiry 
is made in view of the fact that St. 1910, c. 616, § 1, provides 
that each note shall state " the date when it will become due for 
payment," and of the fact that R. L., c. 27, § 6, requires that 
loans in anticipation of taxes shall "be payable within one year 
after the date of their incurrence." In reply to this inquiry, 
I advise you that, in my opinion, a town may legally issue a 
note payable on demand to obtain money in anticipation of 
taxes. Such a note is due at once for purposes of suit by the 
holder against the maker, and the statute of limitations begins 
to run at once. See Fenno v. Gay, 146 Mass. 118. The maker 
may make payment at once, without demand by the holder. 
See Stover v. Hamilton, 21 Gratt. (Va.) 273. A statement that 
such note is due "on demand" is, therefore, in compliance 
with the statutory requirement that it state "the date when it 
will become due for payment." For the same reason, such a 
note is in compliance with the statutory requirement that a 
loan in anticipation of taxes must "be payable within one year 
after the date of their [its] incurrence." i 

You also inquire whether a town note may be made payable 
to the town treasurer, or to the town treasurer or order. This 
inquiry is made in view of the fact that St. 1910, c. 616, § 1, 
requires that a town note shall state "the date of issue," and 
that "a record of every note so issued shall be kept by the 



I 



DANA MALONE, ATTORNEY-GENERAL. 343 

treasurer of the town," and that, if the Director of the Bureau 
of Statistics "finds that the note appears to have been duly 
issued," etc., he shall so certify. In reply to this inquiry I ad- 
vise you that, in my opinion, a town note may not be made 
payable to the town treasurer, or to the town treasurer or order. 
Such a note is in effect payable to the town; in other words, the 
maker and the payee named in the body of the instrument are 
the same. Consequently, it is not issued until indorsement by 
the treasurer. See Little v. Rogers, 1 Met. 105; Moses v. Law- 
rence County Bank, 149 U. S. 298, 302; R. L., c. 73, § 207. 
"The date of issue" of such note is, therefore, the date of in- 
dorsement. No record of the issuing of the note, and no certi- 
fication thereof, in accordance with the requirements of the 
statute, can be made until after such indorsement. The record 
and the certification cannot properly be made after indorse- 
ment, since in the form for the note prescribed by you under 
statutory authority it is contemplated that the note shall be 
complete upon its face. 



344 



OPINIONS OF THE ATTORNEY-GENERAL. 



OPINIONS 



JAMES M. SWIFT, ATTOENEY-GENEEAL. 



To the 

Adjutant 
General. 

1911 
January 19. 



Armories — Use for Public Purposes — Rallies of Polit- 
ical Parties and Meetings for the Discussion of 
Public Questions. 

Under the provision of St. 1908, c. 604, § 140, that "armories . . . shall not be 
used except by the organized militia for such military purpose or purposes 
incidental thereto as may be designated by the commander-in-chief: provided, 
however, that the commander-in-chief, upon terms and conditions to be 
prescribed by him and upon an application approved by the military custodian 
of an armory . . . may allow the temporary use of such armory for public 
purposes," an armory may be used for rallies of political parties or meetings 
for the discussion of questions of public policy which are of interest or benefit 
to the community at large. 

In your communication of January 16' you state that you are 
directed by His Excellency the Governor to request a written 
opinion from the Attorney-General upon the question whether 
or not State armories may be used for rallies of political par- 
ties and for meetings for the discussion of questions of public 
policy. 

St. 1908, c. 604, § 140, is as follows: — 

Armories provided for the miUtia shall not be used except by the or- 
ganized militia for such military purpose or purposes incidental thereto 
as may be designated by the commander-in-chief: provided, hoivever, that 
the commander-in-chief, upon terms and conditions to be prescribed by 
him and upon an application approved by the military custodian of an 
armory provided in any city or town for the militia, may allow the tem- 
porary use of such armory for public purposes. The compensation fixed 
by the commander-in-chief for every such temporary use shall be paid to 
the treasurer and receiver general within ten days after the occupation of 



JAMES M. SWIFT, ATTORNEY-GENERAL. M5 

he armory for such temporary use ceases, accompanied by the certificate 
)f the quartermaster-general that the sum so paid is the correct amount ; 
ind all moneys so received shall be paid into the treasury of the common- 
t'ealth. 

In an opinion dated Nov. 14, 1907, my predecessor advised 
he Adjutant-General that — 

A consideration of these statutes shows that it was the intention of 

he Legislature to permit a qualified and restricted use of armories for 

lurposes other than military purposes. The term "public purposes," 

,s used in the existing law, must be taken to impart a still wider use than 

I irimarily permitted, although the Legislature has not defined its limits. 

I t is a matter of some difficulty to arrive at a satisfactory definition of the 

j /ords "public purposes" as used in said act. The word "pubUc" is 

iefined by the Century Dictionary to mean "open to all the people, 

hared in or to be shared or participated in or enjoyed by people at large; 

lot Umited or restricted to any particular class of the community;" and 

here is nothing in the statute under consideration which shows an inten- 

ion of the Legislature to give to it any new meaning or to change the 

ignification which is given to the word in ordinary speech. 

I am of opinion, however, that, speaking generally, the words "public 
lUrposes" are intended to mean some purpose Vv^hich is of general interest 
T benefit to the community at large, to which any person who desires 
oay obtain admission, either with or without the pajanent of a reason- 
,ble fee. 

In this conclusion I concur, and am of opinion that meetings 
)f political parties which are of general interest to the commu- 
lity at large and to which any person who desires may obtain 
idmission, as well as meetings of like character for the discus- 
-ion of questions of public policy, are public purposes within the 
)rovisions of St. 1908, c. 604, § 140, above cited. 

You further inquire "whether or not the Governor, as Com- 
nander-in-Chief, may allow the temporary use of armories for 
iueh purposes without charge." By reason of the provision that 
'the compensation fixed by the commander-in-chief for every 
meh temporary use shall be paid to the treasurer and receiver 
general within ten days after the occupation of the armor \- for 
Hich temporary use ceases, accompanied by the certificate of the 
quartermaster general that the sum so paid is the correct 



346 



OPINIONS OF THE ATTORNEY-GENERAL. 



amount, and all moneys so received shall be paid into the treas- 
ury of the commonwealth," I am of opinion that the statute 
does not contemplate that such use should be permitted with- 
out compensation therefor to the Commonwealth. 

You further submit for my consideration an instruction, in- 
tended to be given to custodians of armories, as follows : — 

The use of the drill sheds of armories for rallies of political parties or 
meetings for the discussion of questions of pubhc policy is a public pur- 
pose. 

You inquire whether or not such instruction is in accordance 
with the existing laws. With the qualification that rallies of 
political parties or meetings for the discussion of questions 
of public policy are such as to be of general interest or benefit to 
the community at large, I am of opinion that the instruction 
which you quote in substance agrees with existing laws. 



Annual Appropriations — Statements of Amounts re- 
quired FOR THE Ensuing Fiscal Year — Governor and 
Council — Verification of Estimates — Examination 
AND Audit of Books of Account. 

St. 1910, c. 220, § 1, requiring that every ofBcer or board having charge of any 
department, institution or undertaking which receives an annual appropria- 
tion from the treasury of the Commonwealth, shall annually submit to the 
Auditor statements in detail showing the amounts appropriated for the 
current fiscal year and required for the ensuing fiscal year, and that the 
Auditor shall combine such statements with a like statement relating to his 
own department in one document, to be printed and submitted on or before 
the first Thursday in January to the Governor and Council for examination, 
and by the Governor transmitted to the General Court with such recommenda- 
tions as he may deem proper, does not confer upon the Governor and Council, 
or upon the Governor alone, any new or additional authority to examine, 
for the purpose of verifying or otherwise investigating such statements, the 
expenditures or books of accounts of, or to prescribe for such purpose the 
method of accounting which shall be used by, any State officer or board. 



You have orally required my opinion upon the question of 



To the 
Governor and 

"^You- your authority, under the provisions of St. 1910, c. 220, to 

anuatr 21. verify or to make investigation with reference to the estimates 

submitted to you by officers or boards having charge of any 



I 



JAMES M. SWIFT, ATTORNEY-GENERAL. 347 

i iepartment, institution or undertaking which receives an 
innual appropriation of money from the treasury of the Com- 
nonwealth in accordance with such provisions, by examining 
md auditing the books and accounts or prescribing the methods 
)f accounting of such officers or boards. 
The statute to which you refer is as follows: — 

Section 1. Every officer or board having charge of any department, 
nstitution or undertaking which receives an annual appropriation of 
ixoney from the treasury of the commonwealth, including annual appro- 
priations to be met by assessments, shall, annually, on or before the 
ifteenth day of November, submit to the auditor of the commonwealth 
statements in detail showing the amount appropriated for the current 
iscal year and the amounts required for the ensuing fiscal year, with an 
explanation of the reason for any increased appropriation, and with cita- 
tions of the statutes relating thereto, and with a statement of the expendi- 
tures for the current year and for each of the next preceding two years. 
The said estimates shall not include any estimates for special purposes 
or objects. The auditor of the commonwealth shall embody the said 
statements, with a like statement relating to his own department, in one 
document, which shall be printed, and shall be submitted on or before 
the first Thursday in January of each year to the governor and council 
for examination, and the governor shall transmit the same to the general 
court with such recommendations, if any, as he may deem proper. The 
auditor shall also submit his estimates for the ensuing fiscal year for the 
ordinary and other revenue of the commonwealth which shall be made 
a part of the document herein provided for. Copies of the document 
shall be distributed to the members of the general court. 

Section 2. Officers, heads of departments, boards, commissions and 
trustees of institutions, who, in their annual reports, or otherwise, recom- 
mend appropriations from the state treasury for special purposes or objects, 
including appropriations to be met by assessments in addition to the 
ordinary running expenses, shrll submit estimates thereof in detail to the 
auditor of the commonwealth on or before the fifteenth dpy of November 
in each year, and he shall classify them and embody them in one docu- 
ment which shall be printed, and shall be submitted on or before the fu-st 
Thursday in January of each year to the governor and coimcil for exam- 
ination, and the governor shall transmit the same to the general court 
with such recommendations, if any, as he may deem proper. He shall 
make recommendation as to "how much should be raised by the issue of 
bonds and how much should be paid out of cm-rent revenue. Copies 
of the document shall be distributed to the members of the gcnerid 
court. 



348 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 3. The plans, estimates and specifications made in ?ccord- 
ance with the provisions of chapter five hundred and twenty of the acts 
of the year nineteen hundred and seven, or of amendments thereof, relat- 
ing to any improvement described in either of the documents aforesaid, 
shall at the same time be submitted to the governor and council. 

Section 4. The auditor shall furnish to the governor and council 
such further information in regard to the revenue, expenditures and other 
financial operations of the commonwealth, and in such form as the gov- 
ernor may require. 

Section 5. The governor may, in his discretion, transmit to the 
general court from time to time, with his recommendations, if any, thereon, 
■ particular items in either of the said documents, and may withhold other 
items for further investigation. 

Section 6. Section twenty-six of chapter six of the Revised Laws, 
as amended by section six of chapter two hundred and eleven of the acts 
of the year nineteen hundred and five and section five of chapter five 
hundred and ninety-seven of the acts of the year nineteen hundred and 
eight, and all acts and parts of acts inconsistent herewith, are hereby 
repealed. 

Section 7. This act shall take effect upon its passage. 

It is to be observed that this statute provides that the 
Auditor shall in the first instance receive the estimates of State 
officers and boards and transmit them to the Governor and 
Council for examination, together with estimates for ordinary 
and other revenue of the Commonwealth made by him, and 
that the only power vested in the Governor with respect to 
such estimates is that of making such recommendations as he 
may deem proper. It is also made the duty of the Auditor to 
furnish to the Governor and Council further information in 
connection with such estimates regarding the revenue, expendi- 
tures and other financial operations of the Commonwealth in 
such form as the Governor may require. 

I am of opinion that this statute does not confer upon the 
Governor and Council, or upon the Governor alone, any new 
or additional right to examine the expenditures or books of 
account of, or to prescribe the method of accounting which 
shall be used by, any State officer or board for the purpose of 
verifying or otherwise investigating the estimates so required. 
It is already provided by St. 1908, c. 597, § 4, that — 



! 



JAMES M. SWIFT, ATTORNEY-GENERAL. 349 

I Under the direction of the auditor, the supervisor of accounts shall 
j iirect and control all the accounts in all departments, and shall have full 
liuthority to prescribe, regulate and make changes in the methods of 
} ceeping and rendering accounts, and shall see that they are properly 
naintained, and that all items are correctly allocated between capital 
•eceipts and disbursements and operating revenue and expense. He 
ihall establish in each department a proper system of accounts, which 
ihall be uniform so far as is practicable. He shall estabhsh a proper 
iystem of accounting for stores, supplies and materials, and maj^ provide, 
vhere he deems it necessary, for a continuing inventory thereof. He 
nay inquire into the methods of purchasing and handling such stores, 
lupplies and materials by the departments, reporting to the auditor such 
ihanges as may in his judgment be deeme^ wise. He shall provide such 
lafeguards and systems of checking as will insure, so far as is possible, the 
)roper collection of all revenue due the commonwealth; and, where he 
ieems it necessary, shall provide that forms and receipts shall be num- 
bered consecutively, making the departments responsible for their use 
)r cancellation; 

md by section 6 that — 

"UTienever the word "departments" occurs in this act it sh.dl be under- 
stood to include all departments, boards, commissions, institutions and 
Dfl&ces of the commonwealth which incur expense or to which income 
iccrues, unless the context requires a different interpretation. 

Under these provisions of law the Auditor is given full au- 
thority to prescribe, regulate and make changes in the methods 
of keeping or rendering accounts in all State departments, 
boards, commissions and offices, and to see, by audit or other- 
wise, that they are properly maintained; and there is nothing 
in the language of St. 1910, c. 220, to warrant a conclusion that 
by its enactment the Legislature intended to supersede or 
modify the authority of the Auditor under the statutes above 
cited by conferring upon the Governor and Council any super- 
vision or control of public expenses or the methods of account- 
ing therefor. Upon the contrary, it is the obvious intention of 
the latter statute that the estimates furnished to the Governor 
and Council in accordance with its requirements should be fur- 
nished through the Auditor, and that any additional informa- 



350 OPINIONS OF THE ATTORNEY-GENERAL. 

tion which may be required in the premises should be supplied 
by him (§4). 

The general power of the Governor and Council to investi- 
gate the expenditures of State officers, boards or commissions 
was made the subject of an opinion by my predecessor to His 
Excellency the Governor, dated April 26, 1909 {ante, p. 226), 
in which it was stated that — 

The Governor and Council may at any time examine such bills and 
vouchers in the Auditor's department, and thus familiarize themselves 
with the expenditures of the Commonwealth as much as they wish. They 
may take such measures as they see fit to ascertain that the money ap- 
propriated for the various institutions in the Commonwealth is being ex- 
pended in the manner intended by the Legislature, and may make such 
personal investigation at the institutions themselves as may be necessary 
to make sure that this is being done; but they have no right to say that the 
money appropriated by the Legislature shall not be expended in the way 
authorized by it. There are various departments under the immediate 
supervision of the Governor, and in such departments it is his duty to see 
that the money appropriated is properly expended therein. There are 
other departments in which it is the duty of the head of such departments 
to see that the money appropriated is properly expended, and for which 
the Governor is not responsible, and in which he has no authority except 
so far as may be necessary to see that the warrants are drawn in accord- 
ance with the appropriations authorized by the Legislature. Should the 
Governor and Council be of opinion that the finances of any institution 
are not being properly and economically expended, the remedy would be by 
removal of the trustees or other officers over whom they have authority, 
in accordance with the statutes in such case made and provided. To 
this extent, under the Constitution and law of the Commonwealth the 
Governor and Council have authority to investigate the expenditures of 
any department, and to familiarize themselves as much as they see fit 
with any of the expenditures of the Commonwealth. 

I am, therefore, forced to the conclusion that, in the investi- 
gation of the estimates submitted to the Governor and Council, 
under the provisions of St. 1910, c. 220, the Governor and 
Council are not authorized to audit the books or accounts of any 
officer or board whose estimates are before them for considera- 
tion, or to prescribe any method of accounting to be followed 
by such officer or board, and that such information as may be 



JAMES M. SAVIFT, ATTORNEY-GENERAL. 351 

equired with respect to matters of finance, in addition to that 
uppHed by the estimates themselves, is to be furnished by the 
luditor in such form as the Governor may require. 



'iviL Service Commission — City of Boston — Appoint- 
ment TO Office — Investigation — Public Records. 

a the performance of the duties required by St. 1909, c. 486, § 10, that the Civil 
Service Commission shall make a careful inquiry into the qualifications of 
a nominee for ofnce in the city of Boston, under such rules as they may, with 
the consent of the Governor and Council, establish, such commission act 
in a special and limited capacity under the authority of that section alone, 
i and they are not controlled by the general pro-\dsions relating to civil service, 

in R. L., c. 19, and in the rules formulated thereunder. 

setters and other memoranda received by the Civil Ser^^ce Commission in the 
course of the investigation provided for in St. 1909, c. 486, § 10, are not 
received, and are not required to be received, for filing within the meaning 
of R. L., c. 35, § 5, providing that the words "public records" shall mean 
"any written or printed book or paper, any map or plan of the commonwealth 
or of any county, city or town which is the property thereof and in or on 
which any entry has been made or is required to be made by law, or which 
any officer or employee of the commonwealth or of a county, city or town 
has received or is required to receive for filing;" and they are not, therefore, 
pubUc records as therein defined. 

i member of the Legislature has no greater right to inspect letters or papers which 
are in the possession of the commission but are not public records, than has 
any other member of the pubUc. 

, By the provisions of section 10 of chapter 486 of the Statutes To the 

\ e tt A - ' • • p 1 • e Civil Service 

)f 1909, An act relating to the administration of the city of Commission. 
Boston and to amend the charter of the said city," certain Ja nuary 28. 
Iluties with respect to the appointment of heads of depart- 
nents and members of municipal boards in the city of Boston 
.vere vested in the Civil Service Commission upon the receipt of 
I certified copy of a certificate of appointment from the mayor 
n the form provided in such section : — 

The commission shall immediately make a careful inquiry into the 
lualifications of the nominee under such rules as they may, with the 
ionsent of the governor and council, establish, and, if they conclude 
:hat he is a competent person with the requisite qualifications, they shall 
lie with the city clerk a certificate signed by at least a majority of the 
iommission that they have made a careful inquiry into the qualifications 
3f the appointee, and that in their opinion he is a recognized expert, or 



352 OPINIONS OF THE ATTOKNEY-GENERAL. 

that he is quahfied by education, training or experience for said office, as 
the case may be, and that they approve the appointment. ... If the 
commission does not within thirty days after the receipt of such notice 
file said certificate with the city clerk the appointment shall be void. 

In the performance of these duties the Civil Service Commis- 
sion have formulated certain regulations which, so far as mate- 
rial, are : — 

2. Upon receipt of the said copy of certificate of appointment the 
Civil Service Commission shall make such inquiry concerning the train- 
ing, experience, character and qualifications of the appointee as it judges 
necessary. 

3. Upon request from the Civil Service Commission, the mayor shall 
furnish to it such information as it may call for relating to the age, resi- 
dence, experience, training, character and qualifications of the appointee; 
and he shall forward to it any and all correspondence, papers, petitions, 
recommendations and protests in his possession relating to the appointee, 
all of which shall be returned to the mayor within thirty days after re- 
ceipt from the city clerk of said copy of certificate of appointment. 

The city council and city clerk of Boston, and all commissioners and 
commissions appointed by the Governor, shall, upon request from the 
Civil Service Commission, furnish to it such information as it may call for 
relating to the age, residence, experience, training, character and qualifi- 
cations of the appointee. 

In connection with the careful inquiry which is required by 
the statute the commission have invited communications, both 
oral and in writing, with reference to persons appointed under 
the provisions of St. 1909, c. 486, § 9, and, as you state in your 
letter, " have, in fact, used many sources of information — data 
furnished in writing by the mayor or by the appointee; personal 
conferences at the State House by the commission with the ap- 
pointee and with other citizens; personal investigation by the 
individual commissioners; testimony of sworn witnesses taken 
at the State House by the commission; official city and State 
reports and other documents; reports and notes made by 
agents and inspectors employed by the commission; letters writ- 
ten to the commission voluntarily by various citizens; letters 
written by citizens in response to letters of inquiry sent out by 



JAMES M. SWIFT, ATTORNEY-GENERAL. 353 

lie commission; letters written by citizens presumably in re- 
Donse to a general invitation to the public made by the com- 
lission in a notice issued to the press April 6, 1910." The 
Dtice to which you refer was as follows: — 

April 6, 1910. 

In order that the Civil Ser^^ce Commission may fulfill in tlic most 

I )mplete manner possible the duty imposed upon it by chapter 486 of 

le acts of 1909 in making "the careful inquiry" therein required into 

le qualifications of nominees for the positions of heads of departments, 

id in order that no injustice may be done to any nominee, or to the 

ayor of the city of Boston, or to the public, by reason of the failure on 

1 18 part of the commission to receive the fullest information, the com- 

I ission hereby issues this formal notice that information as to the qualifi- 

1 itions of a nominee presented to the commission at its office in the 

;ate House by any one, in person, or in writing over his signature, will 

; considered in the investigation which the commission will undertake 

ider the rules framed by it and approved by the Governor and Council. 

You further advise me that a request in writing has been 
lade by a member of the present Legislature, in the form fol- 
'wing: — 

So that your Board may have a definite request before you in writing, 
respectf uUy submit the f ollowmg : — • 

As a member of the Legislature of 1911, and for the pm-pose of obtain- 
g accurate information relating to a matter of legislation before said 
)dy, I desire to examine at your office at the State House, in the presence 
■ the secretary of the Board, aU the letters, petitions, communications, 
^commendations for and against the certification of Morris L. Morrison 
•• a member of the board of assessors, and Joseph P. Lomasney as a 
ember of the board of health of the city of Boston. 

A further request was thereafter made by the said member 
lat the matter be referred ■ to the Attorney-General, and in 
?cordance therewith the Civil Service Commission submitted 
•r the decision of the Attorney-General the following specific 
uestions : — 

(1) Are such letters and papers, described as above, "records of their 
oceedings" or "recommendations of apphcants received by them or 



354 OPINIONS OF THE ATTORNEY-GENERAL. 

by any officer authoi-ized to make appointments, or to employ laborers 
or others within the scope of such rules," within the meaning of R. L., 
c. 19, § 5, and such as are under that statute requh-ed "to be preserved" 
and "to be open to public inspection?" 

(2) Are such letters and papers "public records," within the definition 
prescribed in R. L., c. 35? 

(3) Are the commissioners under obligation by law to allow an 
individual member of the Legislature to inspect such letters and 
papers?" 

On January 20, in accordance with a request of the said 
member, a hearing was given by me, at which the Civil Service 
Commission was represented by its secretary, and the said 
member was fully heard upon all the questions raised by his 
original communication to the Civil Service Commission and by 
the inquiries of the commission as above quoted. To his state- 
ments and arguments I have given most careful consideration. 
Upon so much thereof as was addressed to the propriety of per- 
mitting an examination of letters or documents in the nature of 
evidence for or against persons appointed to office under the 
provisions of St. 1909, c. 486, § 9, which may be in the posses- 
sion of the Civil Service Commission, as a matter of policy or 
fairness I cannot assume to pass except in so far as such con- 
siderations are involved in the construction of the statutesi 
which are applicable in the premises. 

Replying specifically to the questions of the Civil Service 
Commission, therefore, my opinion is as follows : — 

(1) R. L., c. 19, § 5, provides that the commission — 

shall keep records of their proceedings and of examinations made by 
them or under their authority. Recommendations of applicants received 
by them or by any officer authorized to make appointments or to employ 
laborers or others, within the scope of such rules, shall be preserved. 
Such records and recommendations shall, under regulations approved by 
the governor and council, be open to pubhc inspection. 

This provision of law is found in the general statute whicl" 
provides for the "selection of persons to fill appointive positions 
in the government of the commonwealth and of the severa 



JAMES M. SWIFT, ATTORNEY-GENERAL. 355 

nties thereof and the selection of persons to be employed as 
aborers or otherwise in the service of the commonwealth and 
,aid several cities" (section 6), under rules prepared by the 
commission and approved by the Governor and Council, which 
nclude — 

The classification of the positions and employments to be filled. 

Open competitive and other examinations to test the practical fitness 
if applicants. 

The filling of vacancies in and the selection of persons for public posi- 
ions and emplojanents in accordance with the results of such examinations, 
ir in the order of application, or otherwise. 

Promotions, if practicable, on the basis of ascertained merit in the 
xamination and seniority of service. 

A period of probation before an appointment or employment is made 
)ennanent. 

Preference to veterans in appointment and promotion. 

It is clear that in the performance of the duties required by 
he provisions of St. 1909, c. 486, § 10, hereinbefore quoted, 
he commission act in a special and limited capacity, under the 
luthority of that section alone. They are not to be controlled 
)y the general provisions relating to civil service, which are to 
)e found in R. L., c. 19, and in the rules formulated there- 
mder, (See section 9.) The provisions of R. L., c. 19, § 5, 
herefore, have no application to the proceedings of the com- 
nission under St. 1909, c. 486, § 10. 

(2) R. L., c. 35, § 5, defined the words "public records" as 
oUows : — 



In construing the provisions of this chapter ?nd other statutes, the 
vords "pubhc records" shall, unless a contrary intention clearly appears, 
nean any \\Titten or printed book or paper, any map or plan of the com- 
nonwealth or of any county, city or town which is the property thereof 
i.nd in or on which any entry has been made or is required to be made 
)y law, or which any oflacer or employee of the commonwealth or of a 
•ounty, city or town has received or is required to receive for filing, and 
tny book, paper, record or copy mentioned in the six following sections, 
fhe word "record" shall, in this chapter, mean any Amtten or printed 
)ook, paper, map or plan. 



356 OPINIONS OF THE ATTORNEY-GENERAL. 

Speaking of this section, in an opinion dated Sept. 22, 1902 
(2 Op. Atty.-Gen. 381), the Attorney-General stated that — 

This legislative definition cannot be held to include within its intention 
every paper which an officer of the Commonwealth receives and files. 
It must be Umited to such as he is required by law to so receive for filing. 
Any other construction must be prejudicial to the rights and interests of 
the Commonwealth or its officers, and, indeed, of parties or persons making 
communications with such officers. 

And see ante, p. 136. This section has been construed and 
this view has been confirmed in the case of Round v. Police 
Commissioner, 197 Mass. 218, where, at page 220, the court 
say: — 

The petitioner contends that such a paper, returned to the Licensing 
Board, is a public record under the R. L., c. 35, § 5, because it is a paper 
which an officer of the city has received or is required to receive for filing. 
An examination of this section shows that it relates to books, papers and 
maps which are intended for the use of the public. We are of opinion 
that the returns by pawnbrokers are not papers received for filing. There 
are statutes which require that certain papers be filed in the office of the 
city or town clerk, or in some registry, for inspection by all persons 
interested. Such papers are "received for filing" within the meaning of 
the statute; but the statute as to returns, by pawnbrokers makes no 
provision for filing. The licensing boards may preserve them in such a 
way as they choose. 

While the facts in the two cases are not identical, I am 
bound to follow the construction therein declared. To make 
any letter, paper or document in the possession of the Civil 
Service Commission a "public document" within the meaning 
of R. L., c. 35, § 5, therefore, the commission must have re- 
ceived or must be required to receive such letter, paper or docu- 
ment for filing under the terms of some particular statute. Xo 
such requirement is to be found in St. 1909, c. 486, § 10. The 
commission are broadly authorized to "make a careful inquiry 
into the qualifications of the nominee under such rules as they 
may, with the consent of the governor and council, establish, 
and, if their conclusion is favorable to such nominee, they are 



JAMES M. SWIFT, ATTORNEY-GENERAL. 357 

equired to file with the city clerk a certificate to that effect. 
?his inquiry is to be governed only by their discretion and by 
uch rules as, with the consent of the Governor and Council, 
hey may adopt for their own guidance. 

The rules so far adopted, which I have already quoted, do 
ot in my opinion require the filing of any letter, paper or docu- 
Qcnt by the commission. They do, in rule 3, require the 
aayor to forward to the commission "any and all correspon- 
ience, papers, petitions, recommendations and protests in his 
lossession relating to the appointee," and they provide for the 
eturn of the same, after the commission have reached a de- 
ision, but this provision has no bearing upon like documents 
ddressed to and received by the commission in the course of 
heir inquiry, and, so far as it is material at all, suggests an 
ntent that such matters should not be retained and filed by 
he commission. 

I am therefore constrained to conclude that the letters and 
>ther memoranda to which your inquiry is directed are not re- 
vived for filing, and are not required to be filed, by any law 
vhich has been called to my attention. They are received by 
he commission in connection w^ith the specific duties required 
)y the provisions of St. 1909, c. 486, § 10, for the purpose of 
tiding the commission in the performance of those duties. The 
;ommission are not required to receive or to retain and pre- 
serve them; and they are retained and preserved, if at all, only 
or the information or convenience of the commission. Since 
hey are not received and are not required to be received for 
iling, within the meaning of R. L., c. 35, § 5, they are not 
)ubhc records as defined in that section. 

(3) A member of the Legislature, as such, has no greater 
'ight to inspect letters or papers which are in the custody of 
he commission, but are not public records, than has any other 
nember of the public, and his individual rights are to be meas- 
ired by those of the public generally. 



358 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Adjutant 

General. 

1911 
February 3. 



Volunteer Militia — Aemory Commission 

OF Armories. 



Construction 



The duty of the armory commission, under the provision of St. 1908, c. 604, § 133, 
as amended by St. 1909, c. 323, § 1, that "if in their judgment the needs 
of the service demand it, subject to the approval of the commander-in-chief, 
. . . shall construct armories, not exceeding three yearly, until the volunteer 
militia shall be provided with adequate quarters," is to construct armories 
until the volunteer militia are provided with adequate quarters, subject to 
the limitation that there shall not be under construction in any one year 
more than three such armories. 

Relative to the construction of St. 1908, c. 604, § 133, as 
amended by St. 1909, c. 323, § 1, which, so far as material, is 
as follows : — 

The armory commissioners shall rebuild, remodel or repair armories of 
the first class which have been injured or destroyed by fire, and may 
reconstruct, remodel, enlarge or otherwise improve existing state armories, 
if in their judgment the needs of the service demand it, subject to the 
approval of the commander-in-chief, and, in addition, shall construct 
armories, not exceeding three yearly, until the volunteer militia shall be 
provided with adequate quarters. 

you submit the following questions for my opinion: — 

1. Must the armory commission build any armories? 

2. Must they build from one to tliree ? 

3. Must they build three each year? 



Assuming that to the first and second questions should be 
added the word "yearly," I understand your inquiry is in sub- 
stance to require my opinion upon the duties of the commis- 
sioners with respect to the construction of armories in any given 
year. 

The duty of the commission seems to be plain. They are 
to "construct armories . . . until the volunteer militia shall 
be provided with adequate quarters." The provision that they 
shall not construct more than three of such armories yearly is 
a limitation upon this duty. Except for this limitation the 
matter is in the discretion of the commission, and if they in 
good faith construct armories as rapidly as possible for the 



JAMES M. SWIFT, ATTORNEY-GENERAL. 359 

ccommodation of the volunteer militia they are not required 
1 any one year to begin the construction of either one, two or 
hree new armories. I am of the opinion that the limitation 
bove referred to means that the commission shall not have 
nder construction in any one year more than three such 
rmories. 



.iCENSE — Keeper of Hospital for Care of Insaxe and 
Feeble-minded — Suitable Person — Resident or Con- 
sulting Physician. 

Inder the provisions of St. 1909, c. 504, § 24, that "the governor and council may, 
upon the recommendation of the state board of insanity, license any suitable 
person to establish and keep a hospital or private house for the care and 
treatment of the insane, epileptic, feeble-minded, and persons addicted to 
the intemperate use of narcotics and stimulants," a physician who is employed 
by the owner or owners of such hospital or private house as resident physician 
in charge, or who is on the staff of consulting physicians connected therewith, 
is not a suitable person to receive such license. 

You have requested my opinion in regard to the provisions to the state 
)f section 24 of chapter 504 of the Acts of the vear 1909, insanity. 

Vnich IS as follows: Fe bruary 8. 

The governor and council may, upon the recommendation of the state 
Doard of insanity, license any suitable person to establish and keep a 
lospital or private house for the care and treatment of the insane, epileptic, 
"eeble-minded, and persons addicted to the intemperate use of narcotics 
3r stimulants, and may at any time revoke such license. No such recom- 
mendation shall be made unless the said board is satisfied that the person 
ipplying therefor is a duly qualified physician, as provided in section 
thirty-two, and has had practical experience in the care and treatment 
Df such patients. Any person owning or maintaining such a hospital 
or private house on the date of the passage of this act shall be entitled 
to maintain the same under the provisions of law in force at that time, 
except that every such hospital or house shall be subject to the visitation 
and supervision of the state board of insanity. 

Your specific inquiries are as follows: — 

1. Is a physician, who is employed by the owner or owners as resident 
physician in charge, on a salary or for a share in the profits, a proper 
person to be granted a Hcense under this section? 



360 



OPINIONS OF THE ATTORNEY-GENERAL. 



2. Is a physician, who is not in chai-ge of or residing in such a hospital 
or private house and who has no pecuniary interest in the business, but 
who is on the staff of consulting physicians, a proper person to be granted 
a license under tliis section? 

In my opinion it is contemplated by the statute that a license 
"to establish and keep a hospital or private house for the care 
and treatment of the insane, epileptic, feeble-minded, and per- 
sons addicted to the intemperate use of narcotics or stimu- 
lants," shall be granted only to a person who is to be the re- 
sponsible head of such hospital or private house, that is, "to 
one who exercises control or proprietorship" of it. Cf. Com- 
monwealth V. Kimhall, 105 Mass. 465, 467. On this view of 
the law it is obvious that the answer to your second inquiry 
must be in the negative. Your jfirst inquiry raises a more diffi- 
cult question, but in my judgment it must be answered in the 
same way. The "physician who is employed by the owner or 
owners as resident physician in charge" is not the responsible 
head of the hospital or private house in such a sense as to en- 
title him to be licensed. 



To the 
Controller 
of County 
Accounts. 

1911 
March 3. 



County Treasurer — Salaries of Clerks of the Court, 
County Commissioners and County Treasurer — In- 
creased Population — Readjustment. 

Further legislative authority is required before a county treasurer may lawfully 
pay increased salaries to the clerks of the courts, the county commissioners 
and the county treasurer upon the basis of increased population as determined 
by St. 1904, c. 451, § 1. 

By your letter of February 2 you request my opinion upon 
the construction to be given to St. 1904, c. 451, "An Act 
relative to the salaries of clerks of the courts, county commis- 
sioners and county treasurers," in which it is provided, in sec- 
tion 1, that — 

The counties of the commonwealth, for the purpose of establishing 
the salaries of clerks of the courts, county commissioners and county 
treasurers, are hereby divided into nine classes, according to the following 



JAMES M. SWIFT, ATTORNEY-GENERAL. 361 

able; and the annual salaries of the clerk of the courts, county commis- 
ioners and county treasurer, in full for aU services performed by them, 
or each county in a class, shall be as therein specified, paj^able by the 
aid county in monthly instalments. 

Chen follow nine classes, A, B, C, D, E, F, G, H and I, of 
^^hich classes A and D may be taken as examples. 

Class A. Counties having a population of less than fifteen thousand, 
mt, the counties of Nantucket and Dukes County; salaries: — Clerk 
'f the courts, six hundred dollars; commissioners (Nantucket, none), 
our hundred dollars; treasurer (Nantucket, none), three hundred dollars. 

Class D. Counties having a population of from sixty thousand to 
linety thousand, to wit, none; salaries: — Clerk of the courts, twent)^- 
our hundred dollars; commissioners, twenty-two hundi-ed dollars; treas- 
irer, eleven hundred dollars. 

The precise question upon which you desire to be advised is 
vhether or not the county treasurer, upon being satisfied by 
)fficial information of the result of the latest census, is author- 
zed to pay to the clerks of the courts, the county commission- 
ers and to himself as county treasurer, salaries under the next 
ligher class in any case where the census shows that a county 
las gained sufficiently in population to be taken from the class 
Dclow and placed therein. 

The act to which you refer forms one of five statutes passed 
n 1904; the other four being chapter 452, "An Act to establish 
:he salaries of registers of deeds and assistant registers of 
deeds;" chapter 453, "An Act to establish the salaries of the 
justices, clerks and assistant clerks of certain police, district 
:ind municipal courts;" chapter 454, "An Act to establish the 
salaries of the chief justice, associate justices, clerks and as- 
sistant clerks of the municipal court of the city of Boston;" 
and chapter 455, "An Act to establish the salaries of the judges, 
registers and assistant registers of probate." Chapter 452, rela- 
tive to the salaries of registers of deeds and assistant registers 
of deeds, provides, in section 1, that "registers of deeds shall 
receive annual salaries based upon the following scale," and 



362 OPINIONS OF THE ATTORNEY-GENERAL. 

establishes three classes, A, B, and C. In section 2 it was pro- 
vided that — 

The salaries of registers of deeds and assistant registers of deeds here- 
inbefore specified shall be readjusted in January, nineteen hunched and 
six, and every five years thereafter, upon the basis of the average yearly 
receipts of the respective registries for the five preceding years, in accord- 
ance with the classification set forth in section one. 

Chapter 455 was substantially similar in form, providing, in 
section 1, that — 

Judges, registers and assistant registers of probate shall receive from 
the treasury of the commonwealth annual salaries based upon the follow- 
ing scale. If the amount in any case comprised in the fhst two classes 
exceeds an even hundred number of dollars by a sum less than fifty dollars, 
the excess shaU be deducted; and if the excess is fifty dollars or more 
a sum shaU be added sufficient to make the excess an even hundred 
doUars. . . . 

Section 2 provides : — 

Salaries of judges, registers, and assistant registers of probate shall be 
readjusted in the year succeeding each national or state census, in accord- 
ance with the classification set forth in section one. 

Both of these statutes contain express provision for readjust- 
ment at regular periods upon the basis of population or receipts 
of money. 

Chapters 451 and 453, which establish classes according to 
population, contain no such provision for readjustment, and 
do not refer to the State or national census, or to any other 
oflBcial determination of the population upon which the divi- 
sions are to be based. They both purport to establish salaries, 
and not to establish divisions by which the salaries are to be 
determined from time to time. 

Chapter 451 has been several times amended. St. 1905, c. 
179; St. 1906, cc. 276, 290; St. 1907, c. 253; St. 1910, c. 537; 
and see St. 1907, c. 145, § 2; St. 1909, c. 232. But none of 
these amendments is of much assistance in determining the 
question now under consideration. In the case of chapter 453, 



JAMES M. SWIFT, ATTORNEY-GENERAL. 363 

lowever, a statute which in form is substantially like chapter 
:51, the amendments are more instructive. Thus, in St. 1905, 
■. 165, it is provided that — 

The police court of Lowell, being a court the judicial district of which 
las, and has had since the twenty-fifth day of April in the year nineteen 
lundred and four, a population of more than one hundred thousand, 
hall be included in class B as defined in section one of chapter four liun- 
Ired and fifty-three of the acts of the year nineteen hundred and four, 
ntitled "An Act to establish the salaries of the justices, clerks and assist- 
,nt clerks of certain police, district and municipal covirts"; and the 
alaries of the justice, special justices, clerk and assistant clerk of the 
lolice court of LoweU shall be those which are established bj^ said chapter 
or the courts included in the said class B, to be so allowed from the first 
[ay of July in the year nineteen hunched and four. 

Vnd in St. 1908, c. 323, which, in like terms, transferred the 
)olice court of Lawrence from Class D, where it was placed 
)y chapter 453, to Class C, such transfer was made by reason 
)f an increased population which entitled it to be so trans- 
erred. See also St. 1906, c. 325. Of more significance than 
nther of these, however, is St. 1905, c. 339, which provided for 
I specific readjustment after the taking of the decennial census 
)f the year 1905, to be "effected in each case by the county 
:reasurer of the county concerned, in accordance with the pro- 
visions of said chapter [St. 1904, c. 453]; and, beginning with 
:he first day of January in the year nineteen hundred and six, 
che said salaries shall be paid according to the said readjust- 
ment." And finally, in St. 1910, c. 501, it was provided, in 
section 1, that — 

The salaries of the justices, clerks and assistant clerks of the district, 
police and municipal courts, other than the municipal court of the city 
Df Boston, and the classes into which said courts are distributed, when 
:he population of the judicial district of each of said courts as ascertained 
oy the last preceding national or state census permits it, shall be so read- 
justed, by the officer paying the salary, as to correspond with the classes 
md salaries provided for by chapter four hundi-ed and fifty-three of the 
icts of the year nineteen hundred and four, and acts in amendment thereof 
ind in addition thereto. Payment of salaries so readjusted shall begin 
3n the first day of July of the year in which said census is taken. 



364 



OPINIONS OF THE ATTORNEY-GENERAL. 



The obvious purpose of this statute was to estabHsh a method 
by which the salaries of the officers included within the provi- 
sions of St. 1904, c. 453, might be readjusted in accordance 
with the schedules of salaries contained in that chapter wdthout 
further recourse to the Legislature, and furnishes the strongest 
evidence that without such additional provision the Legislature 
did not deem that the statute as originally enacted authorized 
such readjustment. Since St. 1904, c. 451, is in form sub- 
stantially similar to chapter 453, I can see no reason why the 
construction given to the latter chapter should not apply to 
the former, and I must, therefore, advise you that in my opin- 
ion further legislative authority is required before the county 
treasurer may lawfully pay increased salaries to the clerks of 
the courts, the county commissioners and the count}^ treasurer 
upon the basis of an increased population of the county con- 
cerned. 



To the 
State Board 
of Health. 

1911 
March 7. 



State Board of Health — Sources of Water Supply — 
Regulation — Artificl\l Reservoirs — Boating and 
Fishing. 

R. L., c. 75, § 133, as amended by St. 1907, c. 467, § 1, providing in part that the 
State Board of Health "may make rules and regulations to prevent the 
pollution and to secure the sanitary protection of all such waters as are used 
as sources of water supply," and "may delegate the granting and withholding 
of any permit required by such rules or regulations to state boards and com- 
missions and to selectmen in towns and to boards of health, water boards 
and water commissioners in cities and towns, to be exercised by such select- 
men, boards and commissions . . . ; and upon complaint of any person 
interested said board shall investigate the granting or withholding of any 
such permit and make such orders relative thereto as it may deem necessarj' 
for the protection of the public health," does not authorize the State Board 
of Health, upon petition of certain inhabitants of a town requesting such 
Board to cause suitable rules and regulations to permit fishing in certain 
reservoirs artificially constructed and now owned and used as a source of 
water supply by such town, to reqviire the water and sewer board thereof 
to issue permits for fishing, since the regulation of boating or fishing or of 
any use of such reservoirs which does not directly relate to the preservation 
of the purity thereof is for such town to establish. 

By a communication dated February 25 you seek my opinion 
upon certain questions respecting the rights of the State Board 
of Health in the matter of a petition which has been entered 



I 



I 



JAMES M. SWIFT, ATTORNEY-GENERAL. 365 

jjy certain inhabitants of the town of Winchester, requesting 
:hat the Board cause suitable rules and regulations to permit 
lishing in certain reservoirs owned and used as a source of 
vater supply by the town of Winchester. The facts as pre- 
sented by the communication of the Board and the papers 
mnexed thereto, so far as material, appear to be substantially 
IS follows — 

Under the provisions of St. 1872, c. 265, and St. 1873, c. 277, 
:he town of Winchester was authorized to construct, own and 
maintain reservoirs in the territory lying along the easterly 
side of the town within its limits and in the adjoining towns 
Df Medford and Stoneham, and subsequently did construct, and 
now owns and maintains, three reservoirs on small streams 
which are the headwaters of certain tributaries of the Aberjona 
River or Mystic Lake. One of these reservoirs, known as the 
North Reservoir, is situated partly in Stoneham and partly in 
Winchester; another, the South Reservoir, is wholly within the 
limits of the city of Medford, and the Middle Reservoir is situ- 
ated chiefly in Stoneham but partly also in W^inchester and 
Medford. A large part of the area which constitutes the water- 
shed of these reservoirs is the property of the town of Winches- 
ter and the remaining portion of these watersheds is within 
the limits of the metropolitan parks reservation. I am advised, 
and, therefore, assume, that the town of Winchester owns in 
fee the beds of the several reservoirs and the land surrounding 
them, and that none of the three is a great pond or charged 
with any of the public rights to which, in the absence of re- 
strictive legislation, great ponds are subject. 

On April 1, 1909, acting upon the petition of the water and 
sewer board of the town of Winchester, the State Board of 
Health adopted certain rules and regulations for the purpose 
of preventing the pollution and securing the sanitary protection 
of the three reservoirs above mentioned. These rules were 
adopted under authority of R. L., c. 75, § 113, and, among other 
things, provided : — 

13. No person shall bathe in, and no person shall, unless permitted 
by a written permit of the water and sewer board of the town of \Yinchester, 



366 OPINIONS OF THE ATTORNEY-GENERAL. 

fish in, or send, drive or put any animal into, North Reservoir, so called, 
in the towns of Stoneham and Winchester, Middle Reservoir, so called, 
in the to^Tis of Stoneham and Winchester and the city of Medford, or 
South Reservoir, so called, in the city of Medford, said reservoirs being 
used by the to-v\7i of Winchester as sources of water supply. No person 
other than a member, officer, agent or employee of said water and sewer 
board, or pubhc officer whose duties may so require, shall, unless so 
permitted by a written permit of said board, enter or go, in any boat, 
skif¥, raft or other contrivance, on or upon the water of either of said 
reservoirs, nor shall enter or go upon, or di'ive anj^ animal upon, the ice 
of either of said reservoirs. 

The granting and withholding of permits required by rules 13 and 14 
is hereby delegated by the State Board of Health to the water and sewer 
board of the to^\^l of Winchester. 

The petition filed with the State Board of Health recites that 
"at divers times since the adoption of the aforesaid Rules and 
Regulations by said State Board of Health, they (the peti- 
tioners) have made application to the water and sewer board 
of the tow^n of Winchester for permits to fish in said reservoirs, 
but that said Board has always refused to grant the same," 
and that a petition presented to said Board by the same peti- 
tioners, requesting that permission to fish might be issued under 
rules and regulations which should be Sufficient to preserve the 
purity of the water, was refused by the Winchester Water and 
SeW'Cr Board. The petition then prays that the State Board 
"cause to be prepared forthwith suitable rules and regulations 
under which fishing in said reservoirs may be carried on, and 
that said W^inchester water and sewer board, or such other 
board or boards, individual or individuals, as may in the judg- 
ment of this Board be deemed expedient, be directed to grant 
such permits in accordance with such rules and regulations." 

The jurisdiction of the State Board of Health in the premises 
is founded upon the provisions of R. L., c. 75, § 113, which, as 
amended by St. 1907, c. 467, § 1, provides as follows: — 

Said board maj'- cause examinations of such waters to be made to 
ascertain then- purity and fitness for domestic use or their liability to 
impair the interests of the public or of persons lawfully' using them or to 



I 



^ 



JAMES M. SWIFT, ATTORNEY-GENERAL. 36^ 

imperil the public health. It maj' make rules and regulations to prevent 
the pollution and to secure the sanitary protection, of all such waters 
as are used as soui-ces of water supply. Said board may delegate the 
granting and withholding of any permit required by such rules or regula- 
tions to state boards and commissions and to selectmen in towns and to 
boards of health, water boai'ds and water commissioners in cities and 
towns, to be exercised by such selectmen, boards and commissions, subject 
to such recommendation and direction as shall be given from time to 
time by the state board of health; and upon complaint of any person 
interested said board shall investigate the granting or withholding of 
any such permit and make such orders relative thereto as it may deem 
necessary for the protection of the pubUc health. 

While the duty of the State Board of Health under this and 
the preceding section (section 112), which vests in said Board 
the general oversight and care of all inland waters and of all 
streams and ponds used by any city, town or public institution 
or by any water or ice company in this Commonwealth as 
sources of water supply, is primarily to prevent pollution and 
to secure the sanitary protection of waters which are used as 
sources of water supply, it has, by reason of the amendment 
contained in St. 1907, c. 467, not only the right to delegate 
power to grant or withhold permits to boat, fish or cut ice upon 
sources of water supply, but also the duty, upon complaint, to 
investigate the granting or withholding of such permits, which 
partakes of the nature of an appellate jurisdiction; and, in the 
case of a great pond, a petition like the present would prob- 
ably require some action upon the part of the Board in the 
nature of a review of the proceedings of the State or local au- 
thorities to whom had been delegated the granting and with- 
holding of any permits required by the rules and regulations of 
the Board, and a consideration of their action with respect to 
the withholding or granting of any particular permit or permits 
concerning which complaint was made by the petitioner. 

In the present case, however, upon the assumption already 
made, the town of Winchester, in its corporate capacity, owns 
the shores, the bed and the waters of all three reservoirs; and, 
while the State Board of Health may restrict their use because 
they are sources of water supply, it can have no right, without 



368 



OPINIONS OF THE ATTORNEY-GENERAL. 



the consent of the town, or of the authorized agents of the town, 
in the premises, who may be assumed to be the Water and 
Sewer Board of Winchester, to require any use thereof which is 
not necessary for the purpose of protecting them as such 
sources of water supply. In the case of a great pond a rule 
which permits fishing or boating either continues an existing 
pubhc right or revives one which for a time has been pro- 
hibited, but here the Board is not deahng with a great pond, 
but with an artificial reservoir in which the public have no 
rights, and which, apart from such regulations as may be 
necessary to protect its purity as a source of water supply, is 
subject to such use for fishing or boating as the town of Win- 
chester, or its agents, may see fit to make of it, subject to the 
general laws which govern the preservation and the taking of fish. 
I am, therefore, of opinion that the State Board of Health 
has no authority to require the water and sewer board of 
Winchester to issue permits for fishing, and that the regulation 
of boating or fishing, or of any use of the reservoirs in question 
which is not directly required to preserve the purity thereof, is 
for the town of Winchester to establish or determine. 



To the 
Civil Service 
Commission. 

1911 
March 11. 



Civil Service — City of Boston — Veterinary Inspector, 
Veterinary Medical Inspector and Veterinarian. 

The positions of "veterinary inspector," "veterinary medical inspector" and 
"veterinarian" are within the classification estabhshed by civil service rule 7, 
class 11, which includes "inspectors other than inspectors of work, and 
persons doing similar work, excepting railroad inspectors, in the ser\ace of 
the Commonwealth or of any city thereof," and are therefore subject to the 
civil service law and rules. 

In behalf of the Civil Service Commission you request my 
opinion as to whether the positions in the health department 
of the city of Boston, termed, respectively, "veterinary in- 
spector," "veterinary medical inspector" and "veterinarian," 
are classified under the civil service law and rules. 

You state that the duties of the persons holding such posi- 
tions are as follows : — 



JAMES M. SWIFT, ATTORNEY-GENERAL. 369 

The duties of the person acting as "veterinary inspector" are the 
eneral inspection of dressed meat and of animals intended for slaughter 
t the abattoir. The duties of the "veterinary medical inspector" and 
f the two "veterinarians," whom the board of health is about to appoint, 
re stated by the board of health as follows: the duties are to examine 
)r diseases in animals and to report to the board of health for its action; 
) investigate the sources of outbreaks of diseases and their communi- 
ition from animal to animal, and from animal to man; and to examine 
id report upon diseases of animals in life and pathological conditions 
: the autopsy and on the meat market; and the board of health states 
lat the successful performance of the work requires the special qualifi- 
ition of professional training. 

The facts stated do not bring the positions \vithin any of 
le general statutory exceptions from the application of the 
vil service law (R. L., c. 19, § 9), nor am I aware of any 
:atute which specifically excepts these positions therefrom, 
'he question is, therefore, whether they are classified under 
16 civil service rules. 

Civil service rule 7, which provides for the classification of 
le official service, includes as class 11, — 

Inspectors other than inspectors of work, and persons doing similar 
ork, excepting railroad inspectors, in the service of the commonwealth 
r of any city thereof. 

In my opinion the positions in question are classified within 
his rule. The word "inspector" has a broad meaning. It 
1 defined in the Century Dictionary as follows : — . 

One who inspects or oversees; one whose duty it is to secm-e by super- 
ision the proper performance of work of any kind, or to ascertain by 
■camination the quality or condition of the work, or of any article offered 
)r sale or transfer; a public officer charged with such duties; as, the 
^spedors of election or of police; an inspector of weights and measures. 

The form of the rule itself indicates that the word "in- 
pector" is not limited in its meaning to an inspector of work, 
nspectors of work are classified with foremen of laborers, in 
lass 22. Class 11 includes all other inspectors. Without at- 
?mpting to define precisely the meaning of the word "in- 



370 



OPINIONS OF THE ATTORNEY-GENERAL. 



spector," I advise you that in my opinion it is broad enough 
to include the positions of veterinary inspector, veterinary medi- 
cal inspector and veterinarian, as such positions are described 
by you. In my judgment the fact that "the successful per- 
formance of the work requires the special qualification of pro- 
fessional training" does not except the positions from the ap- 
plication of the civil service law and rules. 



Constitutional Law — Amendment to Constitution — 
Submission to People. 

Where a proposed amendment to the Constitution was duly agreed to by a majority 
of the Senate and two-thirds of the members of the House of Representatives 
in two successive years, as provided in Article IX. of the Amendments of the 
Constitution of the Commonwealth but no further action was taken with 
respect thereto, it may be submitted to the people as required by said article 
by a resolve passed in the usual manner by a subsequent Legislature. 

Committee"on You havc Submitted to me a proposed resolve (House, Xo. 
Amlndments^. 795) providiug for submitting to the people the article of 
March 15. amendment to the Constitution authorizing the use of voting 

machines at all elections. This article provides that, — 

Voting machines or other mechanical devices for voting may be used 
at all elections under such regulations as may be prescribed by law: 
provided, however, that the right of secret voting shall be preserved. 

The proposed amendment was duly agreed to by a majority 
of the senators and two-thirds of the members of the House of 
Representatives present and voting thereon during the legisla- 
tive session of 1909, and was referred to the General Court next 
to be chosen, which in 1910 agreed thereto, as required by 
Article IX. of the Amendments to the Constitution of the 
Commonwealth. No further action was taken by the Legis- 
lature of that year, and your present communication requires 
my opinion upon the question whether or not the present Gen-, 
eral Court may submit such proposed amendment to the people, 
as provided in the article of the amendment above cited. 

Article IX. is in full as follows: — 



I 



JAMES M. SWIFT, ATTORNEY-GENERAL. 371 

If, at any time hereafter, any specific and particular amendment or 
jnendments to the constitution be proposed in the general court, and 
,greed to by a majority of the senators and two-thirds of the members 
if the house of representatives joresent and voting thereon, such proposed 
mendment or amendments shall be entered on the journals of the two 
lOuses, with the yeas and nays taken thereon, and referred to the general 
curt then next to be chosen, and shall be published : and if, in the general 
curt next chosen as aforesaid, such proposed amendment or amendments 
hall be agreed to by a majority of the senators and two-thirds of the 
aembers of the house of representatives present and voting thereon, then 
i shall be the duty of the general court to submit such proposed amend- 
lent or amendments to the people; and if they shall be approved and 
atified by a majority of the qualified voters, voting thereon at meetings 
^gally warned and holden for that purpose, they shall become part of the 
onstitution of this commonwealth. 

The article contains no specific direction as to the precise 
ime when a proposed amendment shall be submitted to the 
)eople, and does not expressly limit the authority of the Legis- 
ature in this respect to the General Court which agrees to a 
)roposed amendment already passed upon by the General 
]!ourt of the previous year, and if such limitation exists it ex- 
sts only by necessary implication. I am aware of no decision 
)f the court upon the point raised by your inquiry, and the 
luestion seems to be one of novel impression. In the absence 
)f judicial authority in the premises I am inclined to the opinion 
hat no sufficient reason is apparent for limiting the power of 
he General Court to submit to the people a proposed amend- 
nent of the Constitution to the particular Legislature by which 
uch proposed amendment was agreed to; and if no action with 
aspect to submission was taken by such Legislature, an 
imendment so adopted may be submitted to the people for their 
iction by a subsequent Legislature, in the form of a resolve 
)assed in the usual manner. 



372 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Bank 
Commissioner. 

1911 
March 28. 



Co-operative Bank — Unincorporated Association — Way 
OR Manner of transacting Business — Savings Bank. 

An unincorporated association formed for the purpose of accumulating a fund for 
the purchase of real estate and for building thereon, for making loans and 
for accumulating a fund to be returned to the stockholders, the property of 
which is vested in trustees and the shares of which mature when they reach 
the value of $500, with pro\asion for assignment or withdrawal, and which 
does not offer to its members — who are persons having one or more shares 
of stock who have signed the articles of association — the money so accumu- 
lated according to the premium or rate of interest paid by them for priority, 
but invests such money as the funds of a savings bank are invested, does 
not transact "the business of accumulating the savings of its members and 
loaning to them such accumulation in the manner of a co-operative bank" 
in violation of the prohibition of R. L., c. 114, § 1. 

Quaere, whether the wa5' or manner in which such association transacts its business 
might not lead the public to believe that such business was that of a sa\dngs 
bank. 

You have requested my opinion upon certain questions rela- 
tive to the Attleborough Savings and Loan Association. 

The Attleborough Savings and Loan Association is unincor- 
porated. Its purpose, as stated in the preamble to its Articles 
of Association, is that "of accumulating a fund for the pur- 
chase of real estate and for building thereon, for removing in- 
cumbrances therefrom, for making lo^ns, and for the further 
purpose of accumulating a fund to be returned to stockholders." 
Any person holding one or more shares of the stock and having 
signed the Articles of Association is a member of the associa- 
tion. Articles of Association, Article 1. The title to the prop- 
erty of the association is vested in trustees. Article 4. Livest- 
ments may be made in loans "on first mortgages of real estate, 
in INIassachusetts and Rhode Island, upon shares of this associa- 
tion, and upon such other securities as savings banks are au- 
thorized to take under the laws of Massachusetts," also "in 
real estate in the town of Attleborough," Article 8. ^Members 
pay monthly dues of $2 per share and fines for default of pay- 
ment. Article 10. Shares mature when they reach the value 
of $500, Article 13. Provision is made for assignment or 
withdrawal of shares, Article 9. You further state that "the 
money accumulated is not offered to the members according 



JAMES M. SWIFT, ATTORNEY-GENERAL. 373 

the premiums or rate of interest bid by them for priority, 
)ut is invested almost precisely as are the funds of a savings 
)ank." 

Your first inquiry is as follows : — 

Is this association, on the evidence submitted, transacting the business 
if accumulating the savings of its members and loaning to them such 
.ccumulations in the manner of a co-operative banlc, contrary to the 
iro visions of section 1 of chapter 114 of the Revised Laws? 

R. L., c. 114, § 1, provides, in part, that — 

No person, and no association or corporation, except foreign associa- 
ions and corporations duly licensed by the board of commissioners of 
avings banks prior to the fourteenth day of April in the year eighteen 
lundred and ninety-six to transact business in this commonwealth, shall 
ransact the business of accumulating the savings of its members and 
caning to them such accumulations in the manner of a co-operative 
)ank, unless incorporated in this commonwealth for such purpose. 

I am of opinion that the association in question does not 
ransact "the business of accumulating the savings of its mem- 
)ers and loaning to them such accumulations in the manner of 

1 co-operative bank," contrary to the provisions of the statute 
luoted. 

It would be difficult to distinguish the manner in which the 
issociation in question transacts the business of accumulating 
;he savings of its members from that of a co-operative bank. 
The association, however, does not loan to them such accumu- 
ations in the manner of a co-operative bank. The loaning of 
mch accumulations to such of the members as make the best 
)ffers is characteristic of a co-operative bank. See Ativood v. 
Ihmas, 149 Mass. 167, 169; Attorney-General v. Pitcher, 183 
Mass. 513, 516. The loaning of money to its members upon 
:heir shares is merely incidental in the case of the association 
n question. There are no provisions that such loans shall be 
nade to those members who offer the greatest premiums or 
'ates of interest, as in the case of a co-operative bank. R. L., 

-• m, § 11. 



374 OPINIONS OF THE ATTORNEY-GENERAL, 

Your second inquiry is as follows : — 

Is this association soliciting or receiving deposits or transacting business 
in the vray or manner of a savings bank contrary to the provisions of 
section 16 of chapter 590 of the Acts of 1908? 

St. 1908, c. 590, § 16, provides as follows: — 

No corporation, either domestic or foreign, and no person, partnership 
or association except savings banks and trust companies incorporated 
under the laws of this commonwealth, or such foreign banking corpora- 
tions as were doing business in this commonwealth and were subject to 
examination or supervision of the commissioner on June first, nineteen 
hundred and six, shall hereafter make use of any sign at the place where 
its business is transacted having thereon any name, or other word or 
words indicating that such place or office is the place or office of a sa\dngs 
bank. Nor shall such corporation, person, partnership or association 
make use of or circulate any wo-itten or printed or partly written and partly 
printed paper whatever, having thereon any name, or other word or 
words, indicating that such business is the business of a savings bank; 
nor shall any such corporation, person, partnership or association, or any 
agent of a foreign corporation not having an established place of business 
in this commonwealth, solicit or receive deposits or transact business in 
the way or manner of a savings bank, or in such a way or manner as to 
lead the public to beheve, or as in the opinion of the commissioner might 
lead the public to believe, that its business is, that of a savings bank. 

Though it is not absolutely clear that its way or manner of 
transacting business is that of a savings bank, I advise you 
that you may properly be of the opinion that the way or man- 
ner in which it transacts its business might lead the public to 
believe that its business is that of a savings bank. 



( 



JAMES M. SWIFT, ATTORNEY-GENERAL. 375 



rONSTITL'TIONAL LaW — PuBLIC HIGHWAYS — UsE — EREC- 
TION OF Structures over Public Ways — Eminent 
Domain — Public Purpose. 

^ proposed bill which provides that upon petition and after public notice and a 
public hearing the board of street commissioners of the city of Boston may, 
•w-ith the approval of the maj-or, issue a permit to certain individuals named 
therein "to construct and maintain a bridge across Avon Street in said city 
for the purpose of connecting buildings owned by them on opposite sides of 
said street or for the purpose of a fire escape, on such conditions and subject 
to such restrictions as said board may prescribe," purports to confer upon 
such indi%aduals an absolute right to be granted by the city of Boston, and 
in so far as the grant of such right would be inconsistent with the rights of 
other persons, to require the exercise of the power of eminent domain without 
pro\'ision for compensation. 

\ proposed bill which authorizes the city of Boston through its mayor, if it shall 
sell the whole or a part of its real estate on Mason Street in said city, "to 
grant to the purchaser of said estate, and his successors in title, the right to 
connect the real estate so sold with property on Tremont Street opposite 
said real estate by means of a covered passageway or bridge over Mason 
Street," and provides for the compensation of any person whose property 
may be injured by the erection of the structure so authorized, appears to 
contemplate the exercise of the power of eminent domain, not for a public 
purpose but for the benefit of certain individuals who may purchase the real 
estate described therein. 
Both bills are therefore objectionable upon constitutional grounds. 

You have submitted to me on behalf of the joint standing TotheHo»ise 

Committee 

committee on cities certain bills now pending before that °°j^'j*'^^- 
I committee, and have stated that my opinion is desired upon Marchsi. 
I the following specific question: "With reference to House bills 
'numbered 817 and 451, would either or both of these bills, 
[if passed, be in your opinion constitutional; or, to put it in 

another way, is there any constitutional objection to the 

passage of these bills?" 
House Bill No. 817 is entitled "An Act to authorize the 

Construction of a Bridge over Avon Street in the City of 

Boston," and provides in section 1 that — 

Upon petition and after seven days' public notice published in at least 
three newspapers pubhshed in the city of Boston, and a public hearing 
thereon, the board of street commissioners of the city of Boston may, 
with the approval of the mayor, issue a permit to Eben D. Jordan and 
Edward J. Mitten to build and maintain a bridge across Avon street in 
said city for the purpose of connecting buildings owned by them on 



376 OPINIONS OF THE ATTORNEY-GENERAL. 

opposite sides of said street, or for the purpose of a fire escape, on such 
conditions and subject to such restrictions as said board may prescribe. 

House Bill No. 451 is entitled "An Act to authorize the 
Bridging of Mason Street in the City of Boston," and provides 
that — 

The city of Boston by its mayor is hereby authorized and empowered, 
if it shall sell the whole or part of its real estate on Mason street in said 
city, to grant to the purchaser of said estate and his successors in title 
the right to connect the real estate so sold with property on Tremont 
street opposite said real estate by means of a covered passageway or 
bridge over Mason street, said covered passageway to be not more than 
twenty feet in width and at the bottom of the floor not less than twenty 
feet above the street level. 

In section 3 provision is made for the compensation of any 
person whose property may be damaged by the erection of the 
structure so authorized. 

I assume that both Avon Street and Mason Street were laid 
out and constructed as public highways, and that although the 
fee of the land remains in the landowner, the public have ac- 
quired in such streets an easement of travel which includes 
"every kind of travel and communicati9n for the movement or 
transportation of persons or property which is reasonable and 
proper in the use of a public street." Neio England Telephone 
& Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 399; 
see also Cheney v. Barker, 198 Mass. 356, 362. The easement 
so acquired extends to the use of structures either above or 
below the surface of the way, when such structures "are used 
by the public or a part of the public, or are held and used in 
private ownership for the benefit of the public." New England 
Telephone & Telegraph Co. v. Boston Terminal Co., supra; 
Sears v. Crocker, 184 Mass. 586, 588. But these uses and the 
facilities therefor must be "reasonable in reference to their 
effect upon adjacent property, as well as their effect upon other 
kinds of public uses of the street," and "a use of the street 
which would constitute a grave private nuisance to property 
at the side of the street could not have been contemplated by 



JAMES M. SWIFT, ATTORNEY-GENERAL. 377 

;he law as being acquired by a taking for a highway or street." 
Lentell v. Boston & Worcester Street Ry. Co., 202 ]\Iass. 115, 
.19. Thus, elevated s.tructures in the street for the use of street 
ailways or other instrumentalities of transportation have been 
leclared by the Legislature to impose an additional servitude 
ipon land taken for street purposes, and provision has been 
nade for any injury to property caused by them. St. 1894, 
:. 548, § 8; and see St. 1903, c. 163, § 3. Lentell v. Boston 
£• Worcester Street Ry. Co., supra; Baker v. Boston Elevated 
ly. Co., 183 Mass. 178. This would seem to have been the 
heory upon which one of the two bills now before me (House 
3ill No. 817) was drafted, for it contains, in section 3, provi- 
ion for compensation to any person whose property may be in- 
ured by the construction of the bridge authorized in section 1. 
louse Bill No. 451, however, contains no such provision, and, 
f the structure authorized by it may be considered to be an 
nstrumentality of public travel, transportation or communi- 
;ation, fairly raises the question whether the erection and main- 
enance of such a structure should be held to be a reasonable 
md proper use of a public street, or is a use which was not 
ncluded in the original easement and imposes a new servitude 
ipon the land taken for which compensation must be made. 
This question is not free from difficulty. The court has de- 
clared, in Sears v. Crocker, 184 Mass. 586, at page 588, that — 

Our system, which leaves to the landowner the use of a street above 
ir below or on the surface, so far as he can use it without interference 
vith the rights of the pubhc, is just and right, but the pubUc rights in 
hese lands are plainly paramount and they include, as they ought to 
aclude, the power to appropriate the streets above or below the surface 
.s well as upon it, in any way that is not unreasonable, in reference either 
the acts of all who have occasion to travel or to the effect upon the 
property of abutters. 

Abutters are bound to withdraw from occupation of streets above or 
lelow the sui'face whenever the public needs the occupied space for travel. 
The necessary requirements of the public for travel were all paid for when 
he land was taken, whatever they may be, and whether the particulars 
>f them were foreseen or not. The only limitation upon them is that 
hey shall be of a kind which is not unreasonable. 



378 OPINIONS OF THE ATTORNEY-GENERAL. 

The question in each case must depend primarily upon public 
necessity and the conditions which exist with reference to the 
particular locality affected. If the public use of the streets at 
or near Avon Street or Mason Street require that there should 
be an elevated structure over either or both of those streets, in 
order that public travel, transportation or communication may 
be maintained between points upon either side of such streets, 
I am inclined to the opinion that the erection of such a struc- 
ture might well be held to impose no additional servitude upon 
the highway beneath. 

But it is essential that the need for such means of communi- 
cation should be a public need, and that it should be open to 
the public. Nothing in either of said bills shows that the 
structures therein authorized are required by any public neces- 
sity or are to be instrumentalities of public travel. On the 
contrary, it seems that they are not designed primarily for the 
use of the public, as such, but to serve the convenience of abut- 
ting owners and to enhance the value of their property. In 
House Bill No. 817 the permission which may be granted upon 
compliance with the requirements therein set forth is to two 
individuals, and is "for the purpose of connecting buildings 
owned by them on opposite sides of sajd street;" and in House 
Bill No. 451 the right to maintain such structure is granted 
to the purchasers of certain real estate now^ held by the city of 
Boston, and is made appurtenant thereto. 

Where a public highway is laid out and constructed the ease- 
ment secured by the public is no more than an easement of 
travel. The fee remains in the landowner, who may make any 
use of his property not inconsistent with its use as a highway. 
Commonwealth v. Morrison, 197 Mass. 199, 205; Cheney v. 
Barker, 198 Mass. 356, 362. If the erection and maintenance 
of structures like those contemplated by the two bills aforesaid 
are not inconsistent with the paramount rights of the public 
in the streets over which such structures are to pass, the land- 
owner requires no permission from the Legislature to erect them. 
"The Legislature is the supreme authority in regard to public 
rights in the streets and highways" (Boston Electric Light Co. < 



JAMES M. SWIFT, ATTORNEY-GENERAL. 379 

V. Boston Terminal Co., 184 Mass. 566, 570), and it may define 
or limit the extent of the rights which it deems necessary for 
the pubhc, or may even abandon some of them by permitting 
uses of abutting property which, without such permission, 
would involve an interference with the public use, provided that 
such abandonment does not go far enough to amount to an 
appropriation of public property to private uses. The proposed 
acts seem to be more than a legislative declaration that the use 
of private property in the manner which they describe does 
not interfere with the public easement of travel, — or, in other 
words, a definition or limitation of the public use, — and are, 
in my opinion, objectionable upon constitutional grounds, in 
that they assume to confer upon private persons rights with 
respect to the use of abutting property which are made para- 
mount to the rights of other persons, which, to that extent, 
would be an appropriation of those rights, requiring the exer- 
cise of the power of eminent domain. In House Bill Xo. 871 
the exercise of this pov^•e^ is clearly contemplated, for it pro- 
vides in section 3 for the compensation of any one whose prop- 
erty may be injured by the erection of the structure authorized. 
House Bill No. 451 contains no such provision, but since it 
purports- to confer an absolute right to be granted by the city 
of Boston, would necessarily require the exercise of such power 
in so far as the grant of such right would interfere with the 
rights of others. No information has been submitted to me 
respecting the exact limits of the property affected by the pro- 
posed legislation or the nature of the title by which it is held. 
Said property is not even certainly described in the bills them- 
selves. For this reason I am necessarily confined to a discus- 
sion of the general principles which appear to be applicable in 
the premises. These lead me to the opinion that there is con- 
stitutional objection to the passage of either of the bills sub- 
mitted to me. 



380 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the House 
Committee 
on Cities. 

1911 
March 31. 



Constitutional Law — Appropriation of Money raised by 
Taxation — Public Purpose — Museum of Fine Arts. 

The Constitution of the Commonwealth, in chapter V., section II., imposes upon 
the Legislature the duty "in all future periods of this commonwealth, to 
cherish the interests of literature and the sciences, and all seminaries of them," 
and "to encourage private societies and public institutions, rewards and 
immunities, for the promotion of . . . arts, sciences, . . . and a natural 
history of the country," and the appropriation of money in the reasonable 
performance of the duty so imposed would be for a public purpose. 

A proposed bill authorizing the city of Boston to appropriate money, not exceeding 
$50,000 in any single year, for the maintenance and support of the Museum 
of Fine Arts in said city, subject to certain conditions to be performed by 
the trustees of such museum, as therein prescribed, would therefore be con- 
stitutional. 

Under existing law, however, the city of Boston has no authority to appropriate 
money for such purpose. 

You have required my opinion upon the following ques- 
tion: — 

With reference to House Bill No. 1527, is there any constitutional ob- 
jection to the passage of this bill; and, if not, does the city of Boston 
now have, in your opinion, the right, without additional legislation, to 
appropriate money for the purposes named in the bill ? 

House Bill No. 1527 authorizes and empowers th.e city of 
Boston to appropriate money, not exceeding $50,000 in any 
single year, for the maintenance and support of the Museum of 
Fine Arts, subject to the condition that the trustees thereof — 

shall continue to open their buildings and collections for free admission 
to the people of Boston the same number of days in the week as they now 
do, and that said trustees shah annually report to the mayor and the 
school committee of the city of Boston statistics showing the financial 
condition of said museum, its income and disbursements, and the nature 
and kind of instruction given by it and the number of its teachers and 
pupils. 

INIoney raised by taxation may be expended only for a public 
purpose. Lowell v. Oliver, 8 Allen, 247, 253; Opinion of the 
Justices, 204 Mass. 607, 611. The power of the Legislature 
to authorize an appropriation by the city of Boston for the 
benefit of the INIuseum of Fine Arts must depend upon whether 



I 



JAMES M. SWIFT, ATTORNEY-GENERAL. 3S1 

3r not the purpose for which such institution was estabUshed is 
1 pubHc purpose. In Kingman v. Brockton, 153 Mass. 255, in 
iiscussing a statute authorizing the erection of a memorial 
lall at the pubHc expense the court said : — 

That statute . . . may be vindicated on the same ground as statutes 
luthorizing the raising of money for monuments, statues, gates or arch- 
ivays, celebrations, the publication of town histories, parks, roads leading 
;o points of fine natural scenery, decorations upon pubhc buildings, or 
3ther public ornaments or embellislmients, designed merelj^ to promote 
the general welfare, either by providing for fresh air or recreation, or by 
educating the public taste, or by inspiring sentiments of patriotism or 
Df respect for the memory of worthj^ individuals. The reasonable use 
Df pubhc money for such purposes has been sanctioned by several different 
statutes, and the constitutional right of the Legislature to pass such 
statutes rests on sound principles. 

This language was cited with approval in the case of Attor- 
ney-General V. Williams, 174 jNIass. 476. See Williams v. 
Parker, 188 U. S. 491; see also Higghison v. Nahant, 11 Allen, 
530; Huhhard v. Taunton, 140 Mass. 467. 

I have before me no precise and definite information as to 
the purposes for which the Museum of Fine Arts was organized 
and is maintained, but I assume that among the objects of that 
institution is the promotion of the education and culture of 
the public generally in the fine arts, and upon such assumption 
I am of opinion that its maintenance may well be held to be 
a public purpose within the principles laid down in the deci- 
sions above cited. The Constitution itself imposes upon the 
Legislature the duty, "in all future periods of this common- 
wealth, to cherish the interests of literature and the sciences, 
and all seminaries of them," and "to encourage private socie- 
ties and public institutions, rewards and immunities, for the 
promotion of agriculture, arts, sciences, commerce, trades, 
manufactures and a natural history of the country" (C. \ ., 
§ II.); and the appropriation of money in the reasonable per- 
formance of this duty would doubtless be for a public purpose. 
Attorney-General v. Williams, supra, p. 480; Hanscom v. Lowell, 
165 Mass. 419; and see Commonwealth v. Boston Advertising Co., 



382 OPINIONS OF THE ATTORNEY-GENERAL. 

188 Mass. 348, 351. For authority that the citizens of Boston 
may be directly taxed, see Merrick v. Amherst, 12 Allen, 500. 

You have further required my opinion as to whether or not 
the city of Boston now has the right, without additional legis- 
lation, to appropriate money for the purposes named in House 
Bill No. 1529. In my opinion it has not. The only provision 
of law which could now authorize such an expenditure is R. L., 
c. 26, § 28, which is as follows : — 

The city council may, by a yea and nay vote of two-tliirds of the 
members of each branch thereof present and voting, appropriate money 
for armories for the use of the state militia, for the celebration of holidaj^s, 
and for other pubUc purposes to an amount not exceeding in any one 
year one-fiftieth of one per cent of its valuation for such year. 

This section was construed in Hubbard v. Taunton, already 
cited, in which the court, in refusing to restrain the expendi- 
ture of the sum of S200 to pay for twelve public band concerts, 
used the following language : — 

The word "other" implies that the celebration of holidays is a public 
purpose within the meaning of the act, and indicates that purposes which 
are public only in that sense are included within its scope, although thej' 
look rather more obviously to increasing the picturesqueness and interest 
of life than to the satisfaction of rudimentary wants, which alone we 
generally recognize as necessary. We know of no simple and merely 
logical test by which the limit can be fixed. It must be determined by 
practical considerations. The question is one of degree. But, in reply 
to the petitioners' argument, we may say that, if the purpose is within 
the act, we do not see why the city council may not create the occasion. 
Taking into account the history and language of the act, the safeguards 
attached to the exercise of the power, the smallness of the sum allowed 
to be expended, and the fact that it has long been assumed to be within 
the power of cities to give such concerts in the open air, we are not pre- 
pared to say that a case is presented for an injunction. 

In view of the language above quoted I do not think that 
the section above cited should be held to authorize the expendi- 
ture of money for public purposes which are permanent and 
enduring, and which may require a large annual appropriation 
of money raised by taxation. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 383 



. 



ONSTITUTIONAL LaW — PUBLIC HIGHWAYS — LICENSE — USE 

FOR Commercial or Advertising Purposes. 

L city may constitutionally be authorized to require, and to issue through its board 
of supervisors, licenses for the use of specified parts of public streets therein 
for the storage and sale of merchandise for purposes necessary for the con- 
struction or repair of works or buildings and for commercial or advertising 
purposes in cases where the consent of the abutting owner or owners has been 
obtained. The issuance of such licenses, if confined within reasonable limits, 
constitutes a definition by public authority of the public use of a highway. 

On behalf of the joint committee on cities you have requested m?ttee^°™" 
ay opinion "as to the constitutionaHty of the enclosed bill en- 1911" 



' itled 'An Act relative to the use of streets in the city of 
)pringfield.' " More precisely, I assume the question to be 
vhether or not the use of the public streets for the purposes 
md in the manner described in said act is constitutional. 
Section 1 of said proposed bill provides that — 

The board of supervisors of the city of Springfield may require and issue 
icenses, subject to the provisions hereof, for the use of specified parts of 
)ublic streets in said city, for the storage and sale of merchandise, for 
)urposes necessary for the construction or repair of works or buildings 
md for all other purposes requiring the opening of streets, the use thereof 
'or commercial or advertising purposes or for purposes causing more 
;han the ordinary interruption or impaimient of travel thereon. 

Section 2 provides that any person who desires such a license 
ihall make written application therefor, stating his name, resi- 
dence and place of business, and describing the location, shape 
Jnd dimensions of the space which he desires to occupy, the 
structures which he proposes to use, and the kinds of mer- 
:handise which he wishes to store or sell. It further provides 
:hat — 

He shall submit as part of his application the wTitten consent to the 
issuance of said license on the part of the owner or owners of the premises 
m front of which he desires to carry on business and of the tenants of 
the gi-ound floor of such premises, if the license requested is for the sale 
3r storage of merchandise. When the privilege for which a license is 
asked is to be exercised in front of the premises owned by the city of 
Springfield, the owner's consent herein provided for shall not be required. 



April 4. 



384 



OPINIONS OF THE ATTORNEY-GENERAL. 



Such a use of the streets does not fall within the limits of 
the public easement of travel (Commonwealth v. Morrison, 
197 Mass. 199, 203; Haberlil v. Boston, 190 Mass. 358), and 
the Legislature could confer no authority in the premises with- 
out the consent of the owner of the fee. Such consent, however, 
appears to be provided for in the bill submitted to me, and if 
the use therein licensed does not amount to such a great and 
permanent obstruction as to constitute a public nuisance or an 
appropriation of public property to private uses, I am of opin- 
ion that the Legislature may authorize the issuance of such 
license by the city government of Springfield. 

Said act may be construed as permitting the supervisors of 
the city of Springfield to define the limits of the public use and 
to determine what uses by a private person may be permitted 
without conflicting therewith. If confined wuthin reasonable 
limits such use would be constitutional. 



Constitutional Law — Taxation — Exemption — Charita- 
ble Corporation — Land acquired by Institution in- 
corporated FOR Care of Insane. 

A proposed bill which provides that "no private corporation or association now 
existing or hereafter incorporated for the care of the insane shall acquire land 
... to be exempt from taxation without the consent of the legal voters of 
the town or governing board of a city where such land is located," would 
not be unconstitutional as creating an unreasonable exception from the pro- 
visions of law for exemption applicable to property of charitable corporations 
generally, or because it delegates to cities and towns power to determine 
whether specific land therein which may be acquired by such institutions 
shall be included within the exemption applicable to land owned by charitable 
institutions generally. 



In behalf of the committee on bills in the third reading of the 



To the House 
Committee on 

Third'Read- Housc of Representatives, you have requested my opinion as 
""Ion to whether House Bill No. 1170, if enacted, will be constitu- 

April 12. . 1 ,. 1 X 

tional and valid. It provides that — 

No private corporation or association now existing or hereafter incor- 
porated for the care of the insane shall acquire land in a city or town 
of the commonwealth to be exempt from taxation without the consent 



JAMES M. SWIFT, ATTORNEY-GENERAL. 3S5 

I )f the legal voters of the town or governing board of a city where such 
j and is located. 

I am of opinion that the bill, if enacted, will be constitutional 
ind valid. My reasons for this view follow. 

The property of institutions for the care of the insane is 
low exempted from taxation so far as it is included within 
;he provisions of St. 1909, c. 490, part I., § 5, cl. 3, which 
exempts from taxation — 

The personal property of literary, benevolent, charitable and scientific 
nstitutions and of temperance societies incorporated ■within this com- 
nonwealth, the real estate owned and occupied by them or their officers 
'or the purposes for which they are incorporated, and real estate pur- 
chased by them with the purpose of removal thereto, until such removal, 
Dut not for more than two years after such purchase. Such real or per- 
sonal property shall not be exempt if any of the income or profits of the 
Dusiness of such corporation is di^dded among the stockliolders or mem- 
oers, or is used or appropriated for other than literary, educational, benev- 
Dlent, charitable, scientific or religious purposes, nor shall it be exempt 
:or any year in which such corporation wilfully omits to bring in to the 
assessors the list and statement required by section forty-one. 

The effect of the bill in question, if enacted, will be to ex- 
clude from this exemption land thereafter acquired by an in- 
stitution for the care of the insane, unless at the time such 
I land is acquired the city or town within which it is situated 
votes that it shall be exempt from taxation. 

The constitutional provision relative to the taxation of land 
requires that taxes shall be reasonable and proportional. Const. 
Mass., Part 2, c. I., § 1, Art. IV. It is now too late to argue 
that this provision prohibits exemptions. Day v. Lawrence, 
167 Mass. 371. "We have . . . constitutional requirements 
for the encouragement of literature and science, the diffusion 
of education among the people, and the promotion of 'general 
benevolence, public and private charity' and other kindred 
virtues. (Const. Mass., c. 5, § 2.) As taxation of the people 
may be imposed for these objects, property used for literary, 
educational, benevolent, charitable or scientific purposes may 



386 OPINIONS OF THE ATTORNEY-GENERAL. 

well be exempted from taxation. Such exemptions do not pre- 
vent the taxation of the people from being proportional and 
equal." Opinion of the Justices, 195 Mass. 607, 608-9. 
The questions raised by you are, therefore : — 

1. Whether land held by an institution for the care of the 
insane may be excepted from the provision for exemption ap- 
plicable to property of charitable institutions generally. 

2. Whether, if such land may be so excepted, the Legisla- 
ture may delegate to the cities and towns in which the land 
lies the power of determining whether specific land thereafter 
acquired by an institution for the care of the insane, charitable 
in its nature, shall be included within the exemption applicable 
to land owned by charitable institutions generally. 

The only limitation upon exemptions is that they must be 
reasonable. See Minot v. Winthrop, 162 Mass. 113, 124. The 
purpose for which they are made must be proper. See Opinion 
of the Justices, supra. They must not be "such as to render 
the general tax on property throughout the Commonwealth un- 
equal and disproportionate." See Conimonivealth v. People's 
Five Cents Savings Bank, 5 Allen, 428, 437. It is, however, 
"peculiarly within the discretion of the Legislature to deter- 
mine what exemptions should be made in apportioning the 
burdens of taxation among those who can best bear them." 
Minot V. Winthrop, supra. Even if it was required that all 
persons or institutions similarly situated be treated alike, the 
Legislature could undoubtedly find that there was a reasonable 
ground for distinguishing between land and other property, be- 
tween property already acquired and property to be acquired, 
and between institutions for the care of the insane and other 
charitable institutions. The first question must, therefore, be 
answered in the affirmative. 

The question as to whether the Legislature may delegate to 
the cities and towns in which the land lies the power of deter- 
mining whether specific land thereafter acquired by an institu- 
tion for the care of the insane, charitable in its nature, shall 
be included within the exemption applicable to land owned by 
charitable institutions generally, in turn divides itself into two, 



I 



JAMES M. SWaFT, ATTORNEY-GENERAL. 387 

amely: (a) Whether the State may make such a special ex- 
mption; and (b) if the State may do so, whether it may dele- 
ate the power to make such special exemptions to the cities 
nd towns in which the property is respectively situated. Both 
lUst, in my opinion, be answered in the affirmative. 

Since the adoption of the Constitution, and before, the Legis- 
iture has made such exemptions and has limited general ex- 
mptions in particular cases. See for a collection of statutes 
louse Document, 1910, No. 1395, appendix B; Phillips Acad- 
my V. Andover, 175 Mass. 118. These statutes have been con- 
.dered by the court, though their validity seems not to have 
een discussed. See Harvard College v. Kettell, 16 Mass. 204; 
lardy v. Waltham, 7 Pick. 108; Phillips Academy v. Andover, 
upra; Rice v. Bradford, 180 Mass. 545; Evangelical Baptist 
'ociety v. Boston, 192 Mass. 412. In Northampton v. County 
Commissioners, 145 Mass. 108, the court affirmed the constitu- 
ionality, in certain aspects, of a special statute in regard to 
he taxation of a particular charity. Long acquiescence, tliere- 
Dre, furnishes a strong reason for supporting special exemp- 
ions of particular charitable institutions, in the absence of 
lear objections thereto. There is, however, in my judgment, 
lO objection on constitutional grounds to such statutes. As 
Iready stated, the justification for a special exemption of a 
haritable institution is, that since taxation may be imposed 
or the purposes for which such institution is organized, the 
)roperty used for such purposes may be exempted from taxa- 
ion. The Legislature may undoubtedly appropriate money 
aised by taxation for the use of one charitable institution 
vithout making an appropriation for the use of others of the 
ame class. The same result is accomplished indirectly by 
pecifically exempting from taxation the property of such in- 
titution. The propriety of such legislation seems to have 
)een recognized by the Supreme Court of the United States. 
hand Lodge v. New Orleans, 166 U. S. 143, 149; see, however, 
Saltimore City v. Starr Church, 106 Md. 281. 

As the Legislature may make such a special exemption, so it 
nay delegate the power to do so. The Legislature may dele- 



388 OPINIONS OF THE ATTOKNEY-GENERAL. 

gate to cities and towns legislative power over subjects which 
are proper for municipal control. Stone v. Charlestown, 114 
Mass. 214; Opinion of the Justices, 160 Mass. 586, 590; Brod- 
hine v. Revere, 182 Mass. 598, 600. It has delegated many 
powers relating to taxation. In Merrick v. Amherst, 12 Allen, 
500, the court sustained as constitutional a statute authorizing 
a town to raise money by taxation for an agricultural college 
to be established therein by the Commonwealth. It would 
seem that the exemption from taxation of the property of an 
institution which was used for a public purpose might equally 
well be delegated. See Caverly-Gould Co. v. Springfield, 83 Vt. 
396, 403. The language to the contrary in Brewer Brick Co. v. 
Breiver, 62 Me. 62, has been criticised. In Gray on Limita- 
tions of Taxing Power, p. 292, the author says: — 

Inasmuch as the delegation of power to municipalities to impose taxes 
and to fix the rate is so integral a part of the governmental system, it 
cannot be believed that constitutional requirements of uniformity were 
intended to prohibit such delegations of power. And if this be so, the 
Maine decision seems unfounded. 



Constitutional Law — Free Transportation of Letter 
Carriers in Uniform on Street Railways — Safety, 
Health or Proper Convenience of the Public. 

A statute requiring street railway companies to carry free on their passenger cars 
United States letter carriers in uniform in the city or town in which such 
letter carriers are employed, does not tend to promote the safety, health or 
proper convenience of the public, but is an arbitrary enactment in favor of 
the persons designated, letter carriers in uniform, and, as such, is unconsti- 
tutional and void. 

J°j*^e^House I have the honor to acknowledge the receipt of an order 
^^m*/^^^' adopted by the Honorable House of Representatives on the 
Aprii^2. twenty-fourth day of March, 1911, which is as follows: — 

Ordered, That the Attorney-General be requested to inform the House 
of Representatives whether, in his opinion, a statute requiring street 
railwaj^ companies to carry free on their passenger cars United States 
letter carriers in uniform, in the city or town in which they are employed, 
would be constitutional and valid. 



JAMES M. STV^FT, ATTORNEY-GENERAL. 389 

Under date of April 10, 1901, Attorney-General Knowlton 
.dvised the Honorable Senate that a bill requiring transporta- 
ion of letter carriers at a rate less than that collected from 
rdinary passengers was in his opinion unconstitutional so far 
,s it concerned the Boston Elevated Railway Company, on the 
round that such bill, if enacted, would impair the obliga- 
ion of the contract contained in the charter of that company. 
' Op. Atty.-Gen. 261. This opinion was undoubtedly correct, 
nd is applicable with equal or greater force to a statute such 
s is described in the order above set forth. 

I am, however, of opinion that such a statute would be un- 
onstitutional as apphed to street railway companies generally. 
?he right of the Legislature to regulate fares charged by street 
ailway companies is undoubted, but it cannot, " under pretence 
if regulating fares and freights," require a street railway com- 
)any "to carry persons or property without reward." See 
Uone V. Farmers' Loan & Trust Co., 116 U. S. 307, 331. The 
ate fixed must be reasonable. Obviously, a requirement that 
iny class of persons (here "United States letter carriers in 
miform") be carried free is not a reasonable or proper exer- 
:ise of the distinctively rate-making power. 

If the statute is to be justified at all, it must be justified 
mder the poHce power in its broader sense, i.e., the power to 
egislate "for the safety, health or proper convenience of the 
)ublic." Lake Shore & Michigan Southern Ry. Co. v. Smith, 
.73 U. S. 684, 698, 699. Legislation for these purposes is not 
leeessarily bad because it imposes an incidental pecuniary loss 
ipon the carrier. Atlantic Coast Line R.R. Co. v. North Caro- 
ina Corporation Commission, 206 U. S. 1, 24, 25; Interstate 
Railway Co. v. Massachusetts, 207 U. S. 79, 87. It cannot, of 
;ourse, be assumed that any class of persons can be carried free 
)y a street railway company without some, though perhaps 
■light, pecuniary loss to the company. A requirement of such 
ree transportation cannot be sustained under the police power 
mless such requirement is reasonably adapted to promote " the 
afety, health or proper convenience of the public." The free 

ransportation of United States letter carriers as a class, even 



390 OPINIONS OF THE ATTORNEY-GENEKAL. 

though hmited to carriers who are in uniform, does not tend 
to promote the pubHc safety, the pubHc health or the public 
convenience. It does not benefit the public generally, but is 
"an arbitrary enactment in favor of the persons spoken of" 
(i.e., United States letter carriers in uniform). See Lake Shore 
& Michigan Southern Ry. Co. v. Smith, supra, p. 699. No 
reason appears which justifies the discrimination between United 
States letter carriers in uniform, as a class, and all other per- 
sons. See Lake Shore & Michigan Southern Ry. Co. v. Smith, 
supra, pp. 694, 695; Interstate Railway Co. v. Massachusetts, 
supra. 

For these reasons I am of opinion that a statute "requiring 
street railway companies to carry free on their passenger cars 
United States letter carriers in uniform, in the city or town in 
which they are employed," would not be constitutional and 
valid. 



Intoxicating Liquors — License — Licensed Place — 
Licensed Premises. 

In R. L., c. 100, § 13, as amended by St. 1910, c. 476, § 1, providing in part that 
"in cities and towns which vote to authorize the sale of intoxicating Hquors, 
the number of places licensed for the sale of such liquors shall not exceed one 
for each one thousand of the population," and that " Nowhere in the common- 
wealth shall a fourth or fifth class license be granted to be exercised upon 
the same premises with a license of any of the first three classes" with certain 
exceptions therein stated, the words "licensed places" must be construed 
to mean places where a license is to be exercised, and such places are identical 
with licensed premises, except where two or more licenses are granted to the 
same person to be exercised upon the same premises. 

A proposed bill providing that a licensed place "may consist of one or more rooms 
or premises adjoining but having no interior connection or means of com- 
munication with each other," would directly affect the provisions of R. L. 
c. 100, § 13, as amended by St. 1910, c. 476, § 1, for the reason that under 
its provisions a license of the fourth or fifth class might be exercised with a 
license of any of the first three classes at a single licensed place, although in 
a room or rooms physically separated from those in which was exercised any 
license of the first three classes. 

len&tt I have to reply to an order of the Honorable Senate request- 

^^y\ ing my opinion upon the following questions of law: — 

(1) Whether or not the provisions of section 1 of the bill now pending 
before the Senate, and printed as Senate Bill No. 454, a copy of which 



JAMES M. SWIFT, ATTORNEY-GENERAL. 391 

is transmitted herewith, directly or indirectly nullify or repeal the pro- 
visions of chapter 476 of the Acts of 1910, being an act relative to the 
granting of licenses for the sale of mtoxicating liquor? 

(2) Is the definition of "Ucensed place" in the accompanying bill, 
printed as Senate Bill No. 454, inconsistent with the meaning of the 
"place which may be licensed" under the provisions of chapter 476 of 
the Acts of 1910? 

(3) Does the existing law regarding the sale of intoxicating liquors 
permit two separate licensed rooms, if adjoining but having no interior 
connection or means of communication with each other, to be counted 
as one "place licensed for the sale of such liquors" within the meaning 
of chapter 476 of the Acts of 1910? 

Section 1 of chapter 476 of Statutes of 1910 amended Re- 
vised Laws, chapter 100, section 13, by inserting at the ninth 
and tenth lines the following provision: — 

Nowhere in the commonwealth shall a fourth or fifth class license be 
granted to be exercised upon the same premises with a license of any of 
the first three classes, except that a licensed innholder, who has a Ucense 
of any of the first three classes may likewise be granted a license of the 
fourth or fifth class for the purpose of supplying liquor to guests who have 
resorted to his inn for food or lodging. 

Section 13, therefore, now reads as follows: — 

In cities and towns which vote to authorize the granting of licenses for 
the sale of intoxicating liquors, the number of places licensed for the sale 
of such liquors shall not exceed one for each one thousand of the popula- 
tion as ascertained by the last preceding national or state census, but one 
such place may be licensed in any tow^n having a population of less than 
one thousand. In Boston, one such place may be licensed for each five 
hundred of the population, but in no event shall the total number of 
licensed places therein exceed one thousand. Nowhere in the common- 
wealth shall a fourth or fifth class license be granted to be exercised upon 
the same premises with a license of any of the first three classes, except 
that a hcensed innholder, who has a license of any of the first three classes 
may likewise be granted a license of the fourth or fifth class for the pur- 
pose of supplying hquor to guests who have resorted to his inn for food 
or lodging. No more than one hcense shall be granted by any one vote 
of the hcensing board. Such licenses shall be numbered in regular order 
as granted, and any license granted contrary to, or in excess of, the pro- 
visions of this section shall be void; but in a town voting as aforesaid at 
its last annual town meeting which has less than fi^•e thousand permanent 



392 OPINIONS OF THE ATTORNEY-GENERAL. 

residents according to the last preceding state or national census but has an 
increased resident population during the summer months, the selectmen 
may, on or before the fifteenth day of May in any year, apply to the chief 
of the bureau of statistics of labor to have an enumeration made of the 
temporary or summer residents of such town. Said chief shall there- 
upon make such enumeration, between the twenty-third and the twenty- 
eighth day of June next following, under such rules as he shall establish. 
A person who has not been a resident of such town for at least three days 
preceding the enumeration shall not be regarded as a temporary or sum- 
mer resident thereof. Said chief may employ, for such enumeration, 
such persons as may be necessary, who shall in all cases be residents of 
the town if suitable and competent persons can be found; otherwise, 
non-residents may be employed. The chief shall report the total number 
of such temporary or summer residents to the selectmen of the town on 
or before said twenty-eighth day of June. The expenses incurred in 
making such special enumeration shall be paid by the commonwealth. 
The treasurer and receiver general shall thereupon issue his warrant, as 
provided in section thirty-four of chapter twelve, requiring the assessors 
of such town to assess a tax to the amount of the expense incurred in 
making this special enumeration, and such amount shall be collected 
and paid over to the treasurer and receiver general in the same manner 
as other state taxes. The selectmen may, in April, receive apphcations 
for such licenses and investigate and publish the same; and may gi"ant 
one such license for each five hundred of such temporary resident popu- 
lation, not including the permanent inhabitants of such town, as ascer- 
tained by said special enumeration, to take effect on the first day of July 
and to expire on the fii'st day of October next following. A selectman, 
member of a licensing board or census enumerator who violates any pro- 
vision of this section shall be punished by a fine of five hundred dollars. 

Section 18 of chapter 100 of the Revised Laws contains a 
definition of the five classes of licenses hereinbefore referred to. 

First class. To sell liquors of any kind to be drunk on the premises. 

Second class. To sell malt liquors, cider and light wines containing 
not more than fifteen per cent of alcohol, to be drunk on the premises. 

Third class. To sell malt hquors and cider, to be drunk on the premises. 

Fourth class. To sell liquors of any kind, not to be drunk on the 
premises. 

Fifth class. To sell malt liquors, cider and light wines containing 
not more than fifteen per cent of alcohol, not to be drunk on the premises. 

The bill which in the order of the Honorable Senate is stated 
to be now pending before that body provides in section 1 that — 



JAMES M. SWIFT, ATTORNEY-GENERAL. 393 

A license of the fourth or fifth class to sell intoxicating liquors may 
6 granted and issued to be exercised with a license of any of the fu-st 
hree classes in any place Ucensed for the sale of intoxicating liquors. 
Vlthin the meaning of this act a licensed place may consist of one or 
lore rooms or premises adjoining but having no interior connection 
r means of communication vnih each other. Each hcense when so 
isued shall specify the room or rooms or premises in such licensed place 
1 which each hcense is to be exercised and no sales of intoxicating Uquors 
hall be made under a fourth or fifth class hcense in any room or rooms 
pecified in a hcense of any of the first three classes, or ha\ang, except in 
censed inns, any interior connection or means of communication with 
de room or rooms where intoxicating liquor is sold under a license of 
ny of the first three classes. 

The answers to the specific inquiries above quoted must de- 
icnd upon the definition given to the words "places licensed" 
s found in section 13 of chapter 100 of the Revised Laws, 
nd "licensed premises" as used in said chapter. The latter 
erm clearly signifies the premises described in the application 
or the license, and in the license itself, as those upon which 
uch license is to be exercised and enjoyed. See R. L., c. 100, 
§ 14, 15 and 17. 

Upon careful consideration of these and other provisions con- 
ained in chapter 100 of the Revised Laws, I am of opinion 
hat the "licensed places" referred to in section 13 must be 
onstrued to mean places where a license is to be exercised; or, 
n other words, the places of business described in the appli- 
ation for the license, in the notice of such application and 
n the license itself, as provided in sections 10, 13 and 14, and 
hat in meaning this phrase is identical wdth "licensed prem- 
ies," except in cases where two or more licenses are granted to 
he same person to be exercised upon the same premises, in 
U'hich case all such licenses, being exercised upon the same 
'remises, would be exercised at one licensed place, and the 
umber of licensed places with reference to population would 
ot be increased thereby. 

1 Upon this construction of the phrases "licensed premises" 
nd "licensed places," St. 1910, c. 476, § 1, as hereinbefore 
uoted, in providing that fourth and fifth class licenses shall 



394 OPINIONS OF THE ATTORNEY-GENERAL. 

not be granted to be exercised upon the same premises with 
a license of the first three classes, except in the case of a li- 
censed innholder, in effect requires that licenses of the fourth 
and fifth classes shall not be exercised at licensed places where 
a license of the first three classes is exercised, with the result 
that the number of licensed places will be increased to the ex- 
tent that fourth and fifth class licenses are granted to licensees 
who are not innholders and who must, therefore, exercise such 
licenses upon licensed premises not described in any license of 
the first three classes. Senate Bill No. 454, to which the first 
and second inquiries of the Honorable Senate are directed, de- 
fines a licensed place as "one or more rooms or premises ad- 
joining but having no interior connection or means of com- 
munication with each other," and provides that a license of 
the fourth and fifth classes may be exercised at the same 
licensed place with a license of any of the first three classes, 
or, in substance, that a licensed place may include tw^o or more 
licensed premises described in separate licenses. Such, in my 
opinion, being the effect of the proposed bill, I reply specifically 
to the inquiries of the Honorable Senate as follows : — 

1. I am of opinion that while Senate Bill No. 454 cannot 
be said to directly or indirectly nullify or repeal the provisions 
of chapter 476 of the Acts of 1910, it does directly affect such 
provisions in that, under existing laws, as above construed, a 
fourth or fifth class license may not be exercised in the same 
licensed place or upon the same premises with a license of the 
first three classes, whereas, under the proposed bill a license of 
the fourth or fifth class may be exercised wdth a license of any 
of the first three classes at a single licensed place although not 
upon the same licensed premises, with the result that the num- 
ber of licensed places will be substantially the same as they 
were before the enactment of St. 1910, c. 476, although Ucenses 
of the fourth and fifth classes must still be exercised in a room 
or rooms physically separated from the room or rooms in which 
was exercised any license of the first three classes. 

2. I am of opinion that the definition of "licensed places", 
in Senate Bill No. 454 is inconsistent with the definition of 



JAMES M. SWIFT, ATTORNEY-GENERAL. SDj 



the "place which may be licensed" as referred to in R. L., 
?. 100, § 13, as amended by St. 1910, c. 476, for the reason 
■hat under existing laws a place which may be licensed or a 
icensed place is substantially identical with the phrase "li- 
censed premises," where only one license is exercised upon such 
j oremises. 

! 3. This inquiry in terms purports to require my opinion upon 
:he question whether or not existing law regarding the sale 
)f intoxicating liquor permits two separate licensed rooms to 
36 counted as one place licensed for the sale of liquor, within 
. :he meaning of R. L., c. 100, § 13, as amended by St. 1910, 
;. 476, § 1. Replying, therefore, to the inquiry as phrased, I 
am of opinion that under the conditions described therein the 
rooms might be considered as a single place "licensed for the 
sale of such liquors," within the meaning of the section cited, 
if they were both described as the "licensed premises" in an 
application for a single license of any one of the five classes, 
and were used in the exercise of such license, or if they were 
both described in two or more applications for licenses of dif- 
ferent classes which may be legally exercised by the same li- 
censee, as, for instance, an innkeeper. Upon the other hand, 
such rooms could not be countec^ as one such licensed place if 
each were described in a separate application for a license of 
any one of the five classes, or if one were described in an appli- 
cation for a license for one of the first three classes and the 
other were described in an application for a license of the fourth 
or fifth class. I assume, however, that the Honorable Senate 
in fact desires to be advised whether or not, if a license of any 
one of the first three classes be exercised in one of the rooms 
described in the inquiry, and a Hcense of the fourth or fifth 
class be exercised in the other room so described, the two rooms 
together may be counted as one licensed place; and upon this 
assumption I am constrained to answer in the negative. Each 
room, being described as the licensed premises in a separate 
license, is, in my opinion, a place licensed for the sale of such 
liquors within the meaning of R. L., c. 100, § 13, as amended 
by St. 1910, c. 476, § 1. 



396 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Rates — Street and Elevated 
Railway Corporations — Boston Elevated Railway 
Company — Impairment of obligation of Contract — 
Discrimination — Equal Protection of Law. 

A proposed bill, providing that "on all street and elevated railways in this common- 
wealth the fares which are now five cents shall be reduced to three cents 
between the hours of six and eight in the morning and five and seven in the 
evening," would, in the case of the Boston Elevated Railway Company, be 
unconstitutional and void because it would impair the obligation of the 
contract established by the charter of that corporation (St. 1907, c. 500, § 10) 
authorizing such corporation to establish and take a toll or fare not exceeding 
five cents, which sum should not be reduced by the Legislature during a 
period of twenty-five years after the passage of such statute. Such proposed 
bill would not be unconstitutional as to other street or elevated railway 
corporations as constituting so unjust a discrimination in favor of the Boston 
Elevated Railway Company and against such other companies as to deny 
the latter the equal protection of the laws. 

To the Com- Yoli havc requested my opinion as to whether House Bill 

mittee on n i/ i 

wayl*^^*'" -^^o- 1370, if enacted, would be constitutional. This bill is in 

1911 



jiayV the following terms ; 



Section 1. On all street and elevated raihvaj's in this commonwealth 
the fares which are now five cents shall be reduced to three cents between 
the hours of six and eight in the morning and five and seven in the evening. 

Section 2. Violation of this act, shall be punished by fine or imprison- 
ment at the discretion of the court. 

That the Legislature has the power to regulate the rates of 
fare on street and elevated railways within the Commonwealth 
cannot be doubted. Boio v. Beidelman, 125 U. S. 680; Smyth 
V. Ames, 169 U. S. 466; Minneapolis & St Louis R.R. Co. v. 
Minnesota, 186 U. S. 257; Interstate Railway Co. v. Massachu- 
setts, 207 U. S. 79; S. C, sub nomen Commonwealth v. Inter- 
state Consolidated Railway Co., 187 Mass. 436. This power, 
however, does not extend to the regulation of foreign or inter- 
state commerce. Wabash, St. Louis & Pacific R.R. Co. v. 
Illinois, 118 U. S. 557. , It must not be so exercised as to im- 
pair the obligation of any contract contained in the charter of 
a street or elevated railway company (Georgia Railroad & 
Banking Co. v. Smith, 128 U. S. 174, 179; Stone v. Farmers' 



JAMES M. SWIFT, ATTORNEY-GENERAL. 39^ 

[oan & Trust Co., 116 U. S. 307, 325), or to deny to the com- 
)any the equal protection of the laws, or to deprive it of prop- 
■rty without just compensation and without due process of law. 
Jee cases supra. 

A rate-regulating statute which exceeds the power of the 
legislature in any of these respects is, of course, unconstitu- 
ional. Whether such a statute is beyond the legislative power 
lepends upon the facts in each specific case. A rate-regulating 
tatute may be constitutional as to one street or elevated rail- 
v-ay company and unconstitutional as to another. It may be 
onstitutional at one time as to a street or elevated railway 
ompany and at another time be unconstitutional as to the same 
ompany. Smyth v. Ames, 171 U. S. 361, 365. I cannot, 
herefore, give you an opinion of universal application, nor 
lave I the facts before me upon which to give you an opinion 
IS to specific cases except as to the Boston Elevated Railway 
Company. 

In the case of the Boston Elevated Railway Company the 
)ill, if enacted, would be unconstitutional because impairing the 
)bligation of the contract contained in the charter of that cor- 
Doration. St. 1897, c. 500, § 10, authorizes that corporation 
;o "estabhsh, and take a toll or fare, which shall not exceed 
:he sum of five cents for a single continuous passage in the same 
general direction on the roads owned, leased or operated by it," 
ind provides that "this sum shall not be reduced by the legis- 
ature during the period of twenty-five years, from and after 
:he passage of this act," with a proviso that the Board of Rail- 
'oad Commissioners may, upon petition, after notice and hear- 
ng, reduce such toll or fare, but that such toll or fare shall 
lot, without the consent of the corporation, be so reduced as to 
deld less than a certain fixed income. This provision, as I 
lave already advised you in an opinion in regard to the con- 
>titutionality of House Bill No. 1164, undoubtedly creates a 
contract between the Commonwealth and the Boston Elevated 
Railway Company. 2 Op. Atty.-Gen. 261, 426, 429; Opinion 
3f the Attorney-General to the House of Representatives, April 
-'2, 1911. The right to charge a toll or fare of five cents, which 



298 OPINIONS OF THE ATTORNEY-GENERAL. 

shall not be reduced except in a prescribed manner, is of the 
essence of the contract. A change in this particular is clearly 
an impairment of the contractual rights of the company under 
its charter. Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 
368, 398; Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 
417, 434; see, also, Interstate Ry. Co. v. Massachusetts, supra, 
p. 86. 

Since the bill, if enacted, would be unconstitutional as to the 
Boston Elevated Railway Company, it may be urged that it 
would therefore be unconstitutional as to all other street and 
elevated railway companies, for the reason that it denies to 
them the equal protection of the laws in that it requires them 
to carry passengers at a lower rate than that fixed for passen- 
gers upon the lines of that corporation. In the absence of the 
facts of each specific case, however, I cannot say that there is 
not a reasonable ground for distinction between that corpora- 
tion and all other street and elevated railway companies. See 
Interstate Ry. Co. v. Massachusetts, supra, p. 85; Covington & 
Lexington Turnpike Co. v. Sandford, 164 U. S. 578, 597, 598. 
But even if the facts of each case do not justify the distinction 
between the Boston Elevated Railway Company and other 
companies, the fact that the former car^not be subjected to the 
act in question without violating its contractual rights, which 
are protected b}^ the Constitution, is probably in itself suffi- 
cient to justify the discrimination. As was said by Mr. Justice 
Holmes in Interstate Ry. Co. v. Massachusetts, supra, p. 85: — 

If the only ground were that the charter of the Elevated Railway 
contained a contract against the imposition of such a requirement, it 
would be attributing to the Fourteenth Amendment an excessively nice 
operation to say that the immunity of a single corporation prevented 
the passage of an otherwise desirable and wholesome law. 

It may be, though I do not think so, that the bill, if enacted 
in its present form, would not be held to be separable, and that 
since unconstitutional as to the Boston Elevated Railway Com- 
pany it would be unconstitutional as to all street and elevated 
railway companies. I cannot, however, conceive of any way in 



I 



JAMES M. SWIFT, ATTORNEY-GENERAL. 399 

v'hich this question can be raised, since companies other than 
he Boston Elevated Railway Company could object to the stat- 
ite only on the ground that it was unconstitutional as to them, 
lee Hatch v. Reardon, 204 U. S. 152, 160; Interstate Ry. Co. 
-. Massachusetts, supra. I am therefore of opinion that the 
till, if enacted, would not be unconstitutional as to companies 
ther than the Boston Elevated Railway Company on the 
round that it discriminated against them. 

As to whether it would be unconstitutional as to such other 
ompanies on other grounds, it is, as I have said, impossible to 
etermine upon the facts before rne. Whether in any case it 
rould be unconstitutional as interfering with foreign or inter- 
tate commerce, or as impairing the obligation of a contract, 
ould readily be determined. Whether in any case it deprives 

corporation of its property without just compensation and 
without due process of law involv^es a detailed knowledge as to 
he financial condition of the corporation and the amount of 
lusiness done by it. 

I advise you, therefore, that in my opinion the bill, if en- 
cted, would be unconstitutional as to the Boston Elevated 
lailway Company, and that it would not be unconstitutional 
-S to other street and elevated railway companies on the 
Tound that it discriminated between them and the Boston 
illevated Railway Company, but that no further advice can 
)e given as to its constitutionality as to such other companies 
ipon the facts before me. 



400 OPINIONS OF THE ATTORNEY-GENERAL. 



• Constitutional Law — Contract — Boston Elevated Rail- 
way Company — Free Transfers. 

St. 1897, c. 500, § 10, which provides that the Boston Elevated Railway Company 
may "establish, and take a toll or fare, which shall not exceed the sum of five 
cents for a single continuous passage in the same general direction upon the 
roads owned, leased or operated by it," which "sum shall not be reduced by 
the legislature during the period of twenty-five years, from and after the 
passage of this act," with the further provision that the Board of Railroad 
Commissioners may, upon petition and after notice and a hearing, reduce 
such toll or fare, but that such toll or fare shall not, without the consent of 
the corporation, be so reduced as to yield less than a certain fixed income, 
and which further provides that "said corporation shall also provide free 
transfer from elevated to surface and from surface to elevated cars at all 
stations of the elevated lines reached by surface lines and from one elevated 
car or train to another at junction points entitling a passenger to a continuous 
ride in the same general direction," and such further free transfers on all the 
surface lines as may be required by the Board of Railroad Commissioners, 
created a contract between the Commonwealth and the Boston Elevated 
Railroad Company; and a proposed amendment to the section above quoted, 
providing in part that such corporation "may establish for its sole benefit 
a toll or fare which shall not exceed the sum of five cents for a single continuous 
passage between the terminals and transfer points of said roads, and transfer 
checks shall be issued or transfers made on demand without additional pay- 
ment, which shall entitle the passenger to a continuous ride from any station 
or transfer point to any other station or transfer point on the system," such 
transfers to be issued from and between midnight and six o'clock in the 
morning, on cars leaving certain specified stations, so as to render to passengers 
the same amount of service during the hours from midnight to six o'clock in 
the morning for the same fare as they receive during the other hours of the 
day, is unconstitutional and void, for the reason that it changes the require- 
ments as to transfers established by such contract. 

mhteeon™' ^^^ havc Tequestcd my opinion as to whether House Bill 

street Railways. js^T^. 11G4, if enacted, would be constitutional. This bill is 
May_3^ , entitled "An Act relative to free transfers on the cars of 

the Boston Elevated Railroad Company," and amends St. 1894, 
c. 548, by substituting for section 16 thereof a new section. As 
St. 1894, c. 548, § 16, is not now in force, having been repealed 
by St. 1897, c. 500, § 22, it is obvious that the bill is not in 
proper form. I assume, however, that the intention is to 
amend St. 1897, c. 500, § 10, which is the section now in force 
dealing with the same subject-matter, and I answer your ques- 
tion upon that assumption. 

From the title of the bill and from the petition which accom- 
panies it, I infer that the purpose of the bill is to change the 



JAMES M. SWIFT, ATTORNEY-GENERAL. 401 

equirement as to transfers, and I therefore consider primarily 
ts constitutionality in this aspect. 

St. 1897, c. 500, § 10, authorizes the Boston Elevated Rail- 
vay Company to "establish and take a toll or fare which shall 
lot exceed the sum of five cents for a single continuous passage 
n the same general direction upon the roads owned, leased or 
)perated by it," which "sum shall not be reduced by the legis- 
ature during the period of twenty-five years, from and after 
he passage of this act," with a provision, however, that the 
Board of Railroad Commissioners may, upon petition, after 
lotice and hearing, reduce such toll or fare, but that such toll 
)r fare shall not, without the consent of the corporation, be so 
•educed as to yield less than a certain fixed income. The 
lection further provides that — 

Said corporation shall also provide free transfer from elevated to surface 
ind from surface to elevated cars at all stations of the elevated lines 
•cached by suiiace lines and from one elevated car or train to another 
it junction points entitling a passenger to a continuous ride in the same 
general direction, and such further free transfers on all the surface lines 
)f railway owned, leased or operated by it, as may be satisfactory to or 
•equired by the board of raili'oad commissioners. 

The proposed act provides, in part, as follows : — 

Said corporation may establish for its sole benefit a toll or fare which 
ihall not exceed the sum of five cents for a single continuous passage 
between the terminals and transfer points of said routes. And transfer 
checks shall be issued or transfers made on demand, ^\'ithout additional 
Dayment, which shall entitle the passenger to a continuous ride from any 
station or transfer point to any other station or transfer point on the system 
ind said transfers shall be issued from and between the hours of twelve 
nidnight and six in the morning on cars leaving and arriving at Adams 
square, Hanover street, ScoUay square and Northampton street, Boston, 
'md Harvard square, Cambridge, and Uphams Corner, Dorchester, so 
xs to render passengers the same amount of service during the hours of 
welve midnight and six in the morning for the same fare as they receive 
luring the other hours of the daj^ 

The provisions of St. 1897, c. 500, § 10, undoubtedly created 
I contract between the Commonwealth and the Boston Elevated 



402 OPINIONS OF THE ATTORNEY-GENERAL. 

Railway Company (2 Op. Atty.-Gen. 261, 426, 429; Opinion 
of the Attorney-General to the House of Representatives, April 
22, 1911), and this contract is still in force. The right to 
charge a toll or fare of a fixed amount which shall not be re- 
duced except in a prescribed manner is of the essence of the 
contract. So is the limitation as to the transfers which may 
be required. A change in the rate other than in the prescribed 
manner, or, what is equivalent thereto, a change in the require- 
ments as to transfers, is an impairment of the contractual 
rights of the company. See Detroit v. Detroit Citizens' St. Ry. 
Co., 184 U. S. 368, 398; Minneapolis v. Minneapolis St. Ry. Co., 
215 U. S. 417, 434; see also. Interstate Ry. Co. v. Massachusetts, 
207 U. S. 79, 86. 

The proposed act clearly changes the requirements as to 
transfers. It substitutes for a requirement that the corpora- 
tion shall provide "such further free transfers on all the surface 
lines of railway owned, leased or operated by it, as may be 
satisfactory to or required by the board of railroad commis- 
sioners," certain absolute requirements. It is immaterial that 
the railroad commissioners might make even more stringent re- 
quirements than are made by the proposed act. The corpora- 
tion is entitled to have the requirements made in the manner 
fixed by its contract. To this extent at least, the bill, if 
enacted, would be unconstitutional. I do not imply that there 
are not other aspects in which it would be unconstitutional. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 403 



rOVERNOR — STATEMENT OR ESTIMATE OF PROPOSED ExPEXDI- 

TURES — Investigation of Officers, Departments or 
Institutions of the Commonwealth — Employment of 
Agents or Experts. 

he authority of the Governor under St. 1910, c. 220, § 1, in substance requiring 
that certain statements and estimates should be submitted to the Governor 
and Council, and that the Governor should transmit the same to the General 
Court with such recommendations, if any, as he might deem proper, was 
not extended by the provisions of St. 1911, c. 82, authorizing him "to employ 
such persons as he may deem proper to make such investigation of any of 
the commissions, departments or institutions of the commonwealth as he 
believes is necessary to enable him to carry out the provisions of chapter 
two hundred and twenty of the acts of the year nineteen hundred and ten," 
and his power to investigate, by means of agents, investigators or experts 
employed under the provisions of the chapter last cited, any officer, depart- 
ment or institution, must be predicated upon the existence of a statement 
of proposed expenditures and of other matters required by St. 1910, c. 220, 
which is to be transmitted to the Legislature, 
follows, therefore, that after the Governor has transmitted to the Legislature 
the statements or estimates of expenditure in relation to any particular officer, 
department or institution there is no longer authority or occasion for any 
such investigation. 

You submit for my consideration a communication dated .p°g^^rgr 
lay 8, 1911, in which you say, in part, that— Gene^r''"'' 



Under authority of His Excellency the Governor, given by chapter 
I of the Acts of the year 1911, on or about the middle of March last, 
[r. Harvey S. Chase began an investigation of the department of the 
reasurer and Receiver-General. He was granted free access to eveiy 
3ok and record in the department and there was sho^\^l and explained to 
m ever\'thing he desired. 

On March 28 he rendered a report to the Governor, the Executive 
ouncil and the joint committee on ways and means. This report was 
nt to the Legislature by the Governor and referred to the joint committee 
• 1 ways and means. 

lid, further, that Mr. Chase — 

I IS demanded of me the privilege of further investigating this 
apartment and thus covering the same ground of his previous in- 
5stigation. 
I desire, therefore, to be advised of the extent of the authority for 



1911 
May 11. 



404 OPINIONS OF THE ATTORNEY-GENERAL. 

investigating this department given by chapter 82 of the acts of the 
General Court of this year. 

You further state that Mr. Chase was appointed by the Gov- 
ernor to conduct an investigation, on March 17, 1911, by a 
written authority, in part as follows : — 

Acki^owledging your favor of to-daj', you are hereby authorized to 
conduct an investigation in regard to the offices of the Treasurer, . . . 
in accordance with the provisions of the legislative act approved ]\Iarch 2, 
1911, a copy of which is hereto attached. 

Said chapter 82 of the Acts of 1911 did not extend the gen- 
eral power of the Governor with respect to investigations, as 
defined and described in an opinion rendered to the Governor 
by the Attorney-General, dated April 26, 1909. The statute 
was passed solely for the purpose set forth therein, namely, to 
enable the Governor "to carry out the provisions of chapter 
two hundred and twenty of the acts of the year nineteen hun- 
dred and ten," which is the so-called "Walker act." 

The effect of this latter statute was determined by the Su- 
preme Court in an opinion of the justices to the Senate, dated 
April 7, 1911, which is, in part, as follows: — 

The St. of 1910, c. 220, has made but a very small change in the law 
of the Commonwealth. . . . 

The only new pro\dsion in this particular is the requirement that it 
[estimates and statements] shall be submitted "to the governor and 
council for examination, and the governor shall transmit the same to the 
general court wdth such recommendations, if any, as he may deem proper." 
. . . Under this statute, after the document has been printed it is to 
be formally submitted to the Governor and Council for examination as 
well as distributed to the members of the General Court; while mider the 
former statute the governor was left to obtain a copy as he might. Under 
the present statute he is to transmit it to the General Court, so that they 
may know that he has had an opportunity to examine it, and he may 
make recommendations or not, as he chooses. . . . The only material 
effect of this statute is to give a legislative invitation to the Governor 
to examine the documents prepared by the Auditor, and to make recom- 
mendations upon the subjects contained in them if he chooses, and also 



JAMES M. SWIFT, ATTORNEY-GENERAL. 405 

give him an implied assurance that his recommendations as to the 
.mount of the appropriations will receive respectful consideration. 

The duty and power of the Governor in the premises, there- 
ore, being confined to the transmission of the statements of 
stimates for appropriations submitted to the Auditor by the 
'arious State officers, boards and commissions, and transmitted 
)y the Auditor to the Governor, to be accompanied by a recom- 
nendation or not, as he sees fit, it follows that his power to 
nvestigate any officer, department or institution must be predi- 
cated upon the existence of a statement of proposed expendi- 
ures and of other matters required by St. 1910, c. 220, which 
nay be transmitted by him to the -Legislature. The employ- 
nent of agents, investigators and "experts" is only such as 
he Governor believes is necessary to enable him to carry out 
he provisions of said St. 1910, c. 220. If there are no such 
;stimates for the current year before him for transmission, and 
ipon which before transmission he seeks further information, it 
oUows that there is no authority or occasion for any investi- 
gation under said St. 1910, c. 220, or St. 1911, c. 82. 

With reference to this you state that — 

The regular appropriations for salaries and expenses of this department 
vere approved by the Governor on February 11, being chapter 2'3 of 
he acts of this year, and on February 17 His Excellency sent a special 
nessage to the House of Representatives recommending the enactment 
)f a bill authorizuig the payment of the sum of S3-13,691, the sinking 
:und requirements for the pajment of the direct debt of the Common- 
.vealth for the year 1911, and $167,833.33 for the payment of certain 
serial bonds falling due during said year. This bill was passed and ap- 
aroved by His Excellency on INIarch 17, being chapter 157 of the acts 
Df this year. 

It appears, therefore, that when Mr. Chase was first ap- 
pointed by the Governor the statement or estimate of expenses 
from the department of the Treasurer, which had been before 
the Governor under the requirements of said St. 1910, c. 220, 
bad already been transmitted to the Legislature by the Gov- 
lernor, and the appropriation had been made and approved by the 



406 OPINIONS OF THE ATTORNEY-GENERAL. 

Governor. Further, it appears that the statement with refer- 
ence to the sinking funds had also been transmitted to the 
Legislature and had been enacted into law, with the approval 
of the Governor. So far, then, as relates to the department 
of the Treasurer itself, or to the sinking fund requirements, the 
Governor did not have before him any statement or estimate 
under the provisions of said St. 1910, c. 220. There was, there- 
fore, no ground for an investigation by the Governor, or his 
agent, "to enable him to carry out the provisions of chapter 
two hundred and twenty of the acts of the year nineteen hun- 
dred and ten," as specified in St. 1911, c. 82. I am of opinion, 
therefore, that so far as relates to the operation, maintenance! 
and management of the department of the Treasurer and 
Receiver-General Mr. Chase w^as without authority from the 
beginning, and that the investigation that has been made 
w^as made by the consent and with the acquiescence of the 
Treasurer. 

I am of opinion, therefore, that as Mr. Chase has no au- 
thority to conduct an investigation into the management or 
methods or details of the department of the Treasurer and Re- 
ceiver-General, you are within your rights in refusing him per- 
mission so to do. 



Constitutional Law — Public Park — Change of Use — 
Back Bay Fens — Proprietary Rights. 

It is within the power of the Legislature to authorize the park commissioners of 
the city of Boston to permit the erection of a public schoolhouse upon land 
known as the Back Bay Fens, acquired in fee by the city of Boston under 
authority of St. 1875, c. 185, which provided in section 3 that such com- 
missioners should "have the power to locate within the limits of the city of 
Boston one or more public parks, and for that purpose from time to time to 
take in fee, by purchase or otherwise, any and all such lands as said board 
may deem desirable therefor, ..." since the proposed use of the land in 
question is undoubtedly for a public use and no proprietary rights will be 
afifected thereby. 

Se°nate. ^ have the honor to acknowledge the receipt of an order of 

May 11. the Honorable Senate requiring my opinion upon the following 

question of law: "Are the provisions of section 1 of the bill 



JAMES M. SWIFT, ATTORNEY-GENERAL. 407 

)rinted as Senate, No. 441, now pending in the Senate, a copy 
)f which is transmitted herewith, constitutional? " 
The section to which the order refers is as follows : — 

Section 1. The park commissioners of the city of Boston are hereby 
luthorized, upon the request of the schooUiouse commissioners of the 
•aid city, -with the approval of the school committee of said city, to pei-mit 
he erection of a building for the high school of commerce within the 
imits of the Back Bay Fens in said city of Boston. 

The Back Bay Fens, so called, were acquired in 1877 by the 
)ark commissioners of the city of Boston, under authority of 
5t. 1875, c. 185. This statute provided in section 3 that said 
commissioners should "have power to locate within the limits 
)f the city of Boston one or more public parks; and for that 
purpose, from time to time, to take in fee, by purchase or other- 
,vise, any and all such lands as said board may deem desirable 
:herefor; . . ." By section 6 it was provided that — 

The fee of all lands taken or purchased by said board under this act 
ihall vest in the city of Boston, and said citj'' shall be liable to pay all 
lamages assessed or determined, as provided in the preceding section, and 
ill other costs and expenses incurred by said board in the execution of the 
oowers vested m them by this act. Said city shall also be authorized to 
:ake and hold in trust or otherwise any devise, grant, gift or bequest that 
aaay be made for the purpose of laying out, improving or ornamenting 
my parks in said city. 

Section 17 contained a provision making the act effective upon 
acceptance by a majority of the legal voters of the city of Bos- 
ton present and voting; and the act was accepted in accord- 
ance with such provision on June 9, 1875. I am informed by 
the corporation counsel of the city of Boston that the park 
dommissioners acquired title by purchase and without con- 
dition, and that in order to perfect the title of the city said 
lands were subsequently taken in fee under authority of the 
provision of St. 1875, c. 185, § 3, above quoted. 

From this statement of the situation it appears that the Back 
Bay Fens are held for park purposes and that the fee therein 



408 OPINIONS OF THE ATTORNEY-GENERAL. 

is in the city of Boston. The question is whether it is within 
the power of the Legislature to authorize the park commis- 
• sioners of said city to permit the erection of a public school- 
house upon this land now held for park purposes. 

This question must, in my opinion, be answered in the 
affirmative. The proposed use of the land in question is un- 
doubtedly for public purposes. The legal title to the land, 
though acquired at the expense of the city, is held by it in 
trust for the public. Holt v. City Council of Somerville, 127 
Mass. 408. The Legislature represents the interests of the 
public and controls the use which is made of the park. No 
action on the part of tax-paying citizens or voters or of the 
city council is required. Codman v. Crocker, 203 Mass. 146, 
152, 153. The power of the Legislature in this respect is ex- 
tensive. In Commonwealth v. Davis, 162 Mass. 510, 511, the 
court pointed out that "when no proprietary right interferes, 
the Legislature may end the right of the public to enter upon 
the public place by putting an end to the dedication to pubHc 
uses. So it may take the lesser step of limiting the public use 
to certain purposes." On this principle it may, it seems, sub- 
ject to this limitation, change the public use. Cj. Mt. Hope 
Cemetery v. Boston, 158 Mass. 509, 511. This principle is, 
therefore, broad enough to justify the proposed act if such act 
does not affect proprietary rights. Upon the facts before me 
it does not appear that there are any proprietary rights which 
will be affected by the erection of a schoolhouse in the park. 
Upon that assumption, the provisions of section 1 of the bill 
are, therefore, constitutional. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 409 



Constitutional Law — Taxation — National Banks — 
Tax on Deposits. 

A. proposed bill, in substance imposing upon all or certain of the deposits in national 
banks within the Commonwealth an annual tax of not more than one half 
of one per cent., if enacted, would be unconstitutional as a tax upon the 
property of the depositors or upon the property of the bank because it is 
not proportional within requirement of the Constitution of Massachusetts, 
Part II., c. 1, § 1, Art. IV., that taxes levied upon property must be "pro- 
portional and reasonable." 

Such a bill would also be unconstitutional as a tax upon the property of the bank 
because it is in confhct with Revised Statutes of the United States, § 5219, 
which restricts the power of a State to tax national banks to a taxation of the 
shares of stock in the names of the shareholders and to an assessment of the 
real estate of the bank. 

As an excise upon the privileges of the depositors, such bill would be unconstitutional 
because the mere right to take and hold property cannot be made the subject 
of an excise tax; and as an excise upon any privileges of the bank, it would 
be unconstitutional because it would be in conflict with the provisions of 
Re-^-ised Statutes of the United States, § 5219, above cited. 

In behalf of the committee on wavs and means of the House To the House 

"" , , Committee on 

of Representatives you have requested my opinion as to ];^jg^^3^°^ 
whether or not House Bill No. 1827 is constitutional, "and yi^^J:\^ 
whether the State can legislate on a matter of this kind per- 
taining to national banks." 
House Bill No. 1827 is as follows: — 

Sectiox 1. The provisions of chapter three hundred and forty-two 
of the acts of the year nineteen hundred and nine shall apply to national 
banks ha\'ing a place of busmess in the commonwealth of Massachusetts, 
and said provisions shall only apply to such of the deposits therein re- 
ferred to as do not exceed in amount the limits imposed upon deposits in 
savings l^anks by section forty-six of chapter five hundred and ninety of the 
acts of the year nineteen hundred and eight and acts in amendment 
thereof and addition thereto. 

Section 2, This act shall take effect upon its passage. 

St. 1909, c. 342, referred to in this bill, imposes upon "every 
trust company having a savings department, ... an annual 
tax on the amount of its deposits therein," substantially such 
as is imposed upon savings banks (St. 1909, c. 490, part HI., 
§§ 21-23), — that is, "an annual tax of one half of one per 
cent on the amount of its deposits," — except that for the 



410 OPINIONS OF THE ATTORNEY-GENERAL. 

years 1910, 1911 and 1912 a smaller rate is fixed; and section 4 
exempts from local taxation deposits taxed under the provi- 
sions of that act. St. 1908, c. 590, § 46, as amended, referred 
to in the bill, permits savings banks to "receive on deposit 
from any person not more than one thousand dollars," and to 
allow interest thereon, "and upon the interest accumulated 
thereon, until the principal, with the accrued interest, amounts 
to two thousand dollars." See St. 1909, c. 491, § 7. The effect 
of the bill, if enacted and valid, would be to impose upon all 
or certain of the deposits in the national bank an annual tax of 
not more than one half of one per cent. It is not necessary 
for me to consider the construction of the act, since upon any 
construction it is, in my opinion, invalid upon fundamental 
grounds. 

The Constitution of this Commonwealth contains two provi- 
sions authorizing taxation, which are to be found in Part II., 
c. I., § I., Art. IV. The General Court is authorized to "im- 
pose and levy proportional and reasonable assessments, rates 
and taxes, upon all the inhabitants of, and persons resident, 
and estates lying, within the said commonwealth; and also to 
impose and levy reasonable duties and excises upon any prod- 
uce, goods, wares, merchandise, and commodities whatsoever, 
brought into, produced, manufactured, or being within the 
same; . . ." In substance, the first provision authorizes pro- 
portional and reasonable taxes upon property; the second, rea- 
sonable excises upon privileges. 

Section 5219 of the Revised Statutes of the United States 
"is the measure of the power of a State to tax national banks, 
their property or their franchises. By its unambiguous provi- 
sions the power is confined to a taxation of the shares of stock 
in the names of the shareholders and to an assessment of the 
real estate of the bank. Any state tax therefore which is in 
excess of and not in conformity to these requirements is void." 
' Owenshoro National Bank v. Oweiishoro, 173 U. S. 664, 669. 
See also Third National Bank of Louisville v. Stone, 174 U. S. 432. 

The tax sought to be imposed by the bill in question would 
be unconstitutional as a tax upon the property of the depositors 



JAMES M. SWIFT, ATTORNEY-GENERAL. 411 

\3T upon the property of the bank because not proportional 
(Opinion of the Justices, 195 Mass. 607); and as a tax upon 
the property of the bank would be void because in conflict 
with the federal statute referred to. It would be unconstitu- 
tional as an excise upon the privileges of the depositors, for the 
depositors are merely owners of money on deposit, that is, 
creditors of the bank, and "the mere right to own and hold 
property" such as this "cannot be made the subject of an ex- 
cise tax" (Opinion of the Justices, supra, p. 614); and would be 
void as an excise upon any privilege of the bank, because in 
3onflict with the federal statute referred to. The tax cannot 
in any view be considered as a tax on the "shares of stock in 
the names of the shareholders" or "an assessment of the real 
estate of the bank." See Owensboro National Bank v. Owens- 
boro, supra. 

Citizen — Voters — Formation of Credit Union. 

Under the provision of St. 1909, c. 419, § 3, that "seven or more citizens of this 
commonwealth who have associated themselves by an agreement in writing 
for the purpose of forming a credit union, may . . . become a corporation 
. . .," the persons signing such agreement need not be voters. 

By your letter of May 23 vou require mv opinion "as to To the Bank 

•^ "^ ^ ^ ^ " ^ Commissioner. 

whether the law (St. 1909, c. 419, § 3) requires all of the ap- ^^^sii^^. 
plicants for a credit union to be citizens in the sense that 
I they must be voters." • 

The section cited provides that — 

Seven or more citizens of this commonwealth who have associated 
themselves by an agreement in writing for the piu-pose of forming a credit 
union may, with the consent of the board of bank incorporation, become 
a corporation upon complying with all the provisions of section three of 
chapter one hundred and fourteen of the Revised Laws, except those 
which relate to the Ihnit of capital to be accumulated. 

Your letter states you have before you an agreement of asso- 
ciation signed "by seven applicants, only five of whom are 
naturalized citizens of this Commonwealth." I assume the two 
remaining applicants are unnaturalized aliens. 



412 OPINIONS OF THE ATTORNEY-GENERAL. 

The language of the section above quoted is explicit and re- 
quires that all the parties to the agreement therein provided for 
must be citizens of the Commonwealth. An unnaturalized alien 
is not a citizen of the United States, and therefore cannot be- 
come even by residence a citizen of the Commonwealth. It 
follows that the board of bank incorporation may not consent 
to the formation of a corporation by such applicants. 

Replying to your specific inquiry, however, I have to advise 
you that the act does not require that citizens who may associ- 
ate themselves for the purpose of forming a credit association 
should be voters. A citizen is not necessarily a voter. 



May 31. 



Mekcantile Establishment — Premises of Telegraph 

Company. 

Premises maintained by a telegraph company do not constitute a mercantile 
establishment within the pro\'ision of St. 1909, c. 514, § 17, that, "'mercan- 
tile establishments ' shall mean any premises used for the purpose of trade in 
the purchase or sale of any goods or merchandise, and any premises used for 
the purposes of a restaurant or for publicly providing and serving meals." 

Chief of the ^^ ^ Communication dated May 19 you request my opinion 

^mT* ^°'"'°' upon the question whether or not the Postal Telegraph Com- 
pany and similar corporations are to -be considered as mer- 
cantile establishments, and therefore as coming within the 
provision of St. 1909, c. 514, § 56, that "no child under the 
age of fourteen years, and no child who is over fourteen and 
under sixteen years of age who does not have a certificate as 
required by the four following sections . . . shall be employed 
in any factor}'-, workshop or mercantile establishment." 

The act in which the above provision of law is found is a 
codification of the laws relating to labor, and in section 17 cer- 
tain words and phrases as used in such codification, including 
the phrase "mercantile establishments," are defined. The pro- 
vision is as follows : — 

"Mercantile establishments" shaU mean any premises used for the 
purposes of trade in the purchase or sale of any goods or merchandise, 
and any premises used for the purposes of a restaurant or for publicly 
pro\iding and serving meals. 



JAMES M. SAVIFT, ATTORNEY-GENERAL. 413 

I am of the opinion that the premises maintained by the 
Postal Telegraph Company are not used for the purposes of 
trade in the purchase or sale of any goods or merchandise, or 
for the purposes of a restaurant or for publicly providing and 
serving meals. It follows, therefore, that such premises are 
not to be considered as a mercantile establishment. 



Hours of Labor — Vacations — Persons employed at State 
House — Governor — Governor and Council. 

Neither the Governor nor the Governor and Council have any power to determine 
the hours of labor or the length of vacations for persons employed at the 
State House. 

You have requested my opinion as to "what power, if any, xothe 
the Governor or the Governor and Council have with regard isn, 

" June 1. 

to determining the hours of labor for employees at the State 

House, and with regard to the length of their vacations." 

In my opinion neither the Governor nor the Governor and 
Council have any power in regard to the hours of labor for 
employees at the State House, or in regard to their vacations, 
except so far as they may have power over employees in the 
executive department. The hours of labor of the different em- 
ployees are to be determined, in my opinion, by the head of the 
department in which such employee is employed. So long as 
such heads of departments act reasonably there is apparently 
no authority in any one to interfere. 

I am aware that on July 15, 1872, the Council adopted the 
following order : — 

Ordered, That all persons employed in the various departments in the 
State House shall be on duty daily from 9 o'clock a.m. to 4 o'clock p.m., 
with an intemiission of one hour for dinner; and that a vacation not 
longer than one month be allowed to each employee. 

This was apparently adopted under authority of St. 1S6G, 
c. 67, which gave to the Executive Council the right to fix the 
ofBce hours of the departments. This statute, however, was 
repealed by St. 1879, c. 236. 



414 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Governor — Bills and Resolves — 
Action — Five Days — Sundays — Holidays. 

Under the provision of the Constitution of the Commonwealth, Part II., c. I., § I., 
Art. II., that "if any bill or resolve shall not be returned by the governor 
within five days after it shall have been presented, the same shall have the 
force of a law," the governor is to be allowed five full days, beginning at 
12 o'clock midnight next following the time when the bill is presented, in 
which to exercise his right either to signify his approval by signing such bill 
or to return it with his objections in writing to the Senate or House of Rep- 
resentatives. 

In computing such period of five days, Sunday is to be excluded and holidays 
included. 

To the I have the honor to reply to the inquiry of Your Excellency, 

Governor. ^ "^ 

Junl\ transmitted to me through your secretary, whether or not, 

under the provision of the Constitution of the Commonwealth, 
Part the Second, Chapter I., section I., Article II., "if any bill 
or resolve shall not be returned by the governor within five 
days after it shall have been presented, the same shall have 
the force of a law," the five days may be construed to begin 
upon midnight of the day on which the bill is presented to the 
Governor, exclusive of Sundays and holidays. 

I am of opinion that in acting under the constitutional pro- 
vision above quoted the Governor is to be allowed five full days, 
beginning at 12 o'clock midnight next following the time when 
the bill is presented, in which to exercise his right either to 
signify his approval of such bill by signing it or to return it 
with his objections, in writing, to the Senate or House of Rep- 
resentatives, and that in the computation of such periods of 
five days Sundays are to be excluded. 

With reference to the question of holidays, I have not been 
able to find any judicial decisions on the point. It is a general 
rule, however, that anything may be legally done on a holiday 
which is not expressly prohibited, and that as to the legality of 
business done, holidays are different from Sundays. My con- 
clusion from the cases I have examined on this point is that 
in the case of Sunday it is to be inferred that no work shall be 
done, but that in the case of a holiday any work may be done 
which is not prohibited by law. There is no prohibition upon 



JAMES M. SWIFT, ATTORNEY-GENERAL. 415 

he Governor forbidding him to veto a bill on a holiday, and 
therefore assume that he may do so. As he may express his 
eto on a holiday, I am of the opinion that the better rule is 
include the holiday as one of the five days allowed under the 
onstitutional provision. 



Statute — Presumption of Lawful Passage — Adminis- 
trative Officers. 

'he presumption arising from the proper custody and due authentication of an 
act of the Legislature that such act was passed in accordance with the require- 
ments of the Constitution, should be regarded as binding upon administrative 
officers, and such act should be regarded by them as having "the force of a 
law." 

In behalf of the Civil Service Commission you request my To the 

,, ii(-i i*i'' • ^ ^ (I \ Civil Service 

>pmion as to whether St. 1911, c. 119, which is entitled An Commission. 
^Lct relative to qualifications for examination by the civil J""e 7 . 
ervice commission," has the "force of a law." This act, 
ifter having passed both branches of the General Court, was 
'laid before the Governor for his revisal," and was by him 
•eturned to the House of Representatives, in which branch it 
)riginated, without his approval. Thereupon, as appears from 
:he journal, a quorum being present, more than two-thirds of 
:he members present but less than two-thirds of the entire 
nembership (unless the members paired in favor be counted) 
ligreed to pass it. Thereafter, it was sent to the other branch, 
md was approved by two-thirds of the members present. You 
jcek my advice as to whether upon these facts the act was le- 
gally passed; that is, whether the constitutional requirement 
'or the passage of a bill over the Governor's veto, that two- 
thirds of the Senate or House of Representatives, in which it 
originated, should agree to pass it (Const., Part II., c. 1, § 1, 
^■Tt. II.), was complied with. 

The bill is now deposited with the Secretary of the Common- 
«-eaIth, who, under the Constitution (Part II., c. 2, § 4, Art. 
n.), has the custody of the records of the Commonwealth. It 
Jears the statements, signed, respectively, by the speaker of the 



416 OPINIONS OF THE ATTOKNEY-GENERAL. 

House and the president of the Senate, that it was passed to be 
enacted by those branches. It also bears the statement, signed 
by the speaker and by the clerk of the House, that the bill, 
"having been returned to the House of Representatives by His 
Excellency the Governor with his objections thereto in writing, 
is passed by the House of Representatives notwithstanding said 
objections, two-thirds of the members having voted in the 
affirmative;" and the statement, signed by the president and 
by the clerk of the Senate, that it "has been passed in concur- 
rence by the Senate, the objections of His Excellency the Gov- 
ernor to the contrary notwithstanding, two-thirds of the mem- 
bers present having approved the bill." Said bill is, therefore, 
in the proper custody and duly authenticated, and is presumed 
to have been enacted in accordance with constitutional require- 
ments. Whether such presumption can be overcome by refer- 
ence to the legislative journals is a matter upon which the 
courts are not in agreement. The Supreme Court of the United 
States holds that a bill wdiich is in proper custody and duly 
authenticated is conclusive evidence of its execution and valid 
enactment (Field v. Clark, 143 U. S. 649; Flint v. Stone- 
Tracy Co., 220 U. S. 107), and the same view is held by nu- 
merous State courts. Other State courts take a different view. 
Without expressing an opinion as to the view which is likely 
to be adopted by the Supreme Judicial Court of this Common- 
wealth when the case comes before it, I advise you that the 
presumption arising from proper custody and due authentica- 
tion should be regarded as binding upon administrative officers, 
and that said act should be regarded by your commission as 
having the "force of a law." I do not, of course, intend by so 
advising you to imply that if the journals were referred to it 
would appear that the bill was not legally enacted. Upon care- 
ful consideration I have concluded that I ought not to express 
an opinion in answer to that inquiry. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 417 



'oRPORATiox — Charter — Purpose — Holding Compaxy — 
Acquisition of Stock of Domestic Street Railway, 
Gas and Electric Light Corporations. 

nder the provisions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, § 7, 
that "three or more persons may associate themselves by a written agreement 
of association with the intention of forming a corporation under general laws 
for any lawful purpose which is not excluded by the provisions of section one 
except to buy and sell real estate," a corporation may be organized for the 
purpose "to buy and hold a majority of the shares of the capital stock of 
any street railway, gas and electric light companies organized under the laws 
of this commonwealth to do business within this commonwealth." 

You request my opinion as to whether "a corporation may To the Com- 
missioner of 
e organized under chapter 437 of the Acts of the year 1903 Corporations. 

)r the following purpose: 'to buy and hold a majority of the J^^^- 
lares of the capital stock of any street railway, gas and elec- 
*ic light companies organized under the laws of this Common- 
'ealth to do business within this Commonwealth.' " 
It is well established in this Commonwealth that a corpora- 
ion may be organized under the general laws for the purpose 
f acquiring the stock of other corporations under the pro- 
isions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, 
"hich is as follows: — 

Three or more persons may associate themselves by a ■\\Titten agreement 
f association wdth the intention of forming a corporation under general 
iws for any lawful purpose which is not excluded by the provisions of 
action one except to buy and sell real estate. 

By section 1, as amended by St. 1910, c. 385, it is provided 
lat the purposes excluded from its provisions are: — 

■purpose of carr^-ing on the business of a bank, savings bank, co- 

■ ative bank, trust company, surety or indemnitj' company, or safe 

I>osit company, or to corporations organized under general or special 

ws of this commonwealth for the purpose of carr\'ing on within the 

Duimonwealth the business of an insurance company, railroad, electric 

iiilroad or street railway company, telegraph or telephone company. 

IS or electric light, heat or power company, canal, aqueduct or water 

Jmpany, cemetery or crematory company, or to any other corporatioas 

hich now have or mav hereafter have the right to take or condcnm 



418 OPINIONS OF THE ATTORNEY-GENERAL. 

land within the commonwealth, or to exercise franchises in public ways 
granted by the commonwealth or by any county, city or town; but, except 
as hereinbefore provided, the provisions of this section shall not be con- 
strued to prohibit the organization of a corporation under the provisions 
of this act for the purpose of carrying on any lawful business outside of 
this commonwealth. 

The question is then presented whether the ownership of 
stock for purposes of investment or control is a lawful purpose 
under the foregoing provisions of law\ 

In and of itself the ownership of stock is undoubtedly a law- 
ful purpose; and if expressly authorized, stock may be acquired 
and held for purposes of investment or bought and sold for pur- 
poses of profit. It is only when contrary to public policy as 
declared by express statute or by the principles of common law 
that such holding will become unlawful. Is such acquisition 
and ownership unlaw^ful w-hen the corporations to be controlled 
by means of the ownership of stock are not business corpora- 
tions but public-service corporations, such as gas and electric 
light or street railway companies? I am aware of no provi- 
sion of law wdiich expressly forbids such ownership in the 
case of public-service corporations. It has been suggested that 
the organization of a business corporation to acquire the stock 
of or to control public-service corporations is in effect the 
organization of public-service corporations under the business 
corporation law (St, 1903, c. 437), which constitutes a violation 
of so much of section 1 as provides that it shall not apply 
to the corporations enumerated, including street railway com- 
panies and electric light companies. In my opinion, however, 
this contention is disposed of by the language of the court 
in Pullman Car Co. v. Missouri Pacific Co., 115 U. S. 587, and 
in Peterson v. Chicago, Rock Island & Pacific Ry. Co., 20.: 
U. S. 364, 391, where the court said: — 

It is true that the Pacific company practically owns the controlling 
stock in the Gulf compam', and that both companies constitute elements 
of the Rock Island system. But the holding of the majority interest 
in the stock does not mean the control of the active officers and agentf 
of the local company doing business in Texas. That fact gave the Pacifi< 



JAMES M. SWIFT, ATTORNEY-GENERAL. 419 

i iompany the power to control the road by the election of the directors of 
I the Gulf company, who could in turn elect officers or remove them from 
;:he places already held; but this power does not make it the company 

:ransacting the local business. 
This record discloses that the officers and agents of the Gulf company 

control its management. The fact that the Pacific company owns the 
j jontrolHng amounts of the stock of the Gulf company, and has thus the 
I DOwer to change the management, does not give it present control of the 

jorporate property and business. 

I This conclusion, however, is based upon the assumption that 
:he holding corporation is organized in good faith to conduct 

I ;he business of acquiring and owning the stock specified, and is 
lot a device or trick to avoid the consequences of illegal acts 
3r to accomplish a purpose which would not be permitted to a 
3ublic-service corporation. 

The question whether the organization of a holding company 
:or the purpose of acquiring the stock of and controlling a pub- 
ic-service corporation is against public policy as tending to 
create a monopoly is a more difficult one. Numerous cases in 
Dther jurisdictions have decided contrary to such organization, 
[n this Commonwealth, however, it appears to be the estab- 
ished policy to restrict competition in the case of such public- 
iCrvice corporations as gas and electric light companies and 
itreet railway companies, subject to regulation by the State. 
566 Weld V. Gas and Electric Light Commissioners, 197 Mass. 
556, 558. Indeed, it may be said that in this Commonwealth 
ill public-service corporations are so supervised and controlled 
Dy the public authorities that there is no longer unrestricted 
competition, upon the theory that the rights of the public are 
Detter served by careful regulation than by unregulated com- 
oetition. 

In this Commonw^ealth, also, there appears to be no public 
3oHcy opposed to the creation of holding companies, so called, 
3ven when they are for the purpose of holding the stock of 
public-service corporations. Thus, by St. 1909, c. 519, the 
Boston Railroad Holding Company was incorporated for the 
purpose "of acquiring and holding the whole or any part of 



420 



OPINIONS OF THE ATTORNEY-GENERAL. 



the capital stock, bonds and other evidences of indebtedness of 
the Boston and Maine Railroad, and of voting upon all certifi- 
cates of stock so acquired and held . . ." For many years 
voluntary associations, resembling in many of their attributes 
corporations, have been organized and are maintained to acquire 
the stock of public-service corporations. 

I am, therefore, of the opinion that the public policy of the 
Commonwealth does not appear to be opposed to the creation 
of holding companies created for the purpose of acquiring and 
holding the stock of street railways or gas and electric light 
companies, and that a provision authorizing such acquisition 
and holding, in the charter of a business corporation organized 
under the general laws, would not express an unlawful purpose 
as against public policy. That is, in my opinion a corporation 
may be organized under chapter 437 of the Acts of 1903 for 
the purposes set forth in your inquiry. 



To the Board 
of Harbor and 
Land Com- 
missioners. 

1911 
June 24. 



Hours of Labor — Dumping Inspectors — Civil Engineer. 

Dumping inspectors employed by the Board of Harbor and Land Commissioners, 
whose duty it is "to see that all material which is to be dumped in tidewater 
is transported and dumped in its proper locality, none of it being deposited 
in any other place," are not "workmen, laborers or mechanics" within the 
meaning of St. 1911, c. 494, § 1, providing that "the service of all laborers, 
workmen and mechanics now or hereafter employed by the commonwealth 
... is hereby restricted to eight hours in any one calendar day." 

The further provision of such section that "engineers shall be regarded as mechanics 
within the meaning of this act" does not extend to or include persons who 
follow the profession of ci\Tl engineering. 

You have requested my opinion with reference to the stand- 
ing of dumping inspectors under the provision of section 1 of 
chapter 494 of the Statutes of 1911, that "the service of all 
laborers, workmen and mechanics now or hereafter employed 
by the commonwealth ... is hereby restricted to eight hours 
in any one calendar day." 

You state that the duties of dumping inspectors, who are 
civil service appointees, are, "To see that all material which is 
to be dumped in tidewater is transported and dumped in its 



I 



( 



JAMES M. SWIFT, ATTORNEY-GENERAL. 421 

roper locality, none of it being deposited in any other place, 
he inspectors are quartered on the 'towboats towing the 
»aded scows to sea. They practically live on the boats. They 
"e required to be on duty from the time the towboat starts 
ith the tow until the material is dumped. They cannot 
ave the towboat at that time, and have to remain until she 
'turns to her wharf or anchorage. They are not required to 
3 any service on the return trip. As soon as the scows are 
umped they may turn into their bunks and sleep until she 
;turns to her dock or anchorage. They are fed on board the 
)wboat." 

The duties of a dumping inspector, as defined by you, ap- 
ear to require special knowledge and powers of supervision, 
nd do not appear to involve any manual labor, which has 
snerally been regarded as an important element in the words 
laborers, workmen and mechanics." Meands v. Park, 95 Me. 
27; Bloom v. Richards, 2 Oh. St., 387, 401; Savannah & C. R. 
'o. v. Callahan, 49 Ga. 506, 511; Adams v. Goodrich, 55 Ga. 
33, 234. I am, therefore, of the opinion that a dumping in- 
Dector is not d laborer, workman or mechanic within the 
leaning of the statute. 

You further inquire whether the statute, by virtue of the 
revision that "engineers shall be regarded as mechanics within 
le meaning of this act," extends to and includes the chief en- 
ineer and several assistant engineers, draftsmen and helpers 
ho do such civil engineering work as the commission may re- 
uire. I am of opinion that the word "engineers," as used in 
t. 1911, c. 494, § 1, is not to be construed to include persons 
"ho follow the profession of civil engineering. Whether or not 
bose who assist them in the performance of such duties are to 
e regarded as laborers, workmen or mechanics must depend 
pen the nature of the services which they perform. 



422 OPINIONS OF THE ATTORNEY-GENERAL. 



Towns — Water Supply — Indebtedness — Vote — Two- 
thirds Majority. 

A town which accepts by a majority vote an act authorizing it to supply itself and 
its inhabitants with water, in incurring debt therefor must comply with the 
pro\'isions of R. L., c. 27, § 8, requiring a two-thirds vote in order that it 
may incur debt for such purpose. 

To the You request mv opinion as to "whether a town which ac- 

Director of the t. . r- 

ft^tlstics^ cepts, by a majority vote, an act authorizing it to supply 
jufyV. itself and inhabitants with water may incur debt therefor with- 

out being required to comply with the provisions of section 8 
of chapter 27 of the Revised Laws, which makes necessary a 
two-thirds vote in order that it may incur debt for such a pur- 
pose." I infer that your inquiry is made with especial ref- 
erence to the town of West Brookiield, which town, by chapter 
373 of the acts of this year, is authorized to supply itself and its 
inhabitants with water. Section 5 of this act is as follows: — 

Said town, for the purpose of paying the necessary expenses and lia- 
bilities incurred under the provisions of this act, may issue from time to 
time bonds, notes or scrip to an amount not exceeding thirty thousand 
dollars. Such bonds, notes or scrip shall bear on their face the words, 
Town of West Brookfield Water Loan, Act of 1911; shall be payable 
at the expiration of periods not exceeding thirty years from the dates of 
issue; shall bear interest, payable semi-annually, at a rate not exceeding 
four and one half per cent per annmn; and shall l^e signed by the treasurer 
of the town and countersigned by the water commissioners hereinafter 
provided for. Said town may sell such securities at public or private 
sale, upon such terms and conditions as it may deem proper : provided, that 
the securities shall not be sold for less than their par value. 

Section 10 is as follows: — 

This act shall take effect upon its acceptance by a majority vote of 
the legal voters of the town of West Brookfield present and voting thereon 
at a legal meeting called for the purpose within tlu-ee j^ears after its passage; 
but it shall become void unless the town of West Brookfield shall begin 
to distribute water to consumers in said town within tliree years after 
the date of the acceptance of this act as aforesaid. For the purpose of 
being submitted to the A'oters as aforesaid this act shall take effect upon 
its passage. 



I 



JAMES M. SWIFT, ATTORNEY-GENERAL. 423 



i As appears from the section last quoted, the general provi- 
ions of the act do not take effect until "its acceptance by a 
najority vote of the legal voters of the town of ^Yest Brook- 
leld present and voting thereon at a legal meeting called for 
he purpose within three years after its passage." If the act is 
!o accepted, the town is authorized to issue "bonds, notes or 
crip to an amount not exceeding thirty thousand dollars." 
Hich bonds, notes or scrip, however, if issued, must be issued 
n accordance with a vote of the town. There is nothing in 
he act from which it is to be implied that the vote by which 
he act is accepted is also a vote to issue bonds, notes or scrip, 
^n voting to issue bonds, notes or scrip the town must, of 
course, follow the statutory requirements. So far as the special 
let prescribes the details of such issue it is to be followed; in 
)ther respects the general law controls. Cf. 1 Op. Atty.-Gen. 
263. The special act does not state whether the vote to issue 
Donds, notes or scrip shall be a majority or a two-thirds vote. 
The general law (R. L., c. 27, § 8) requires, in the case of a 
town, "a vote of two thirds of the voters present and voting 
at a town meeting," and, in the case of a city, "of two thirds 
Df all the members of each branch of the city council." It 
follows that "a vote of two thirds of the voters present and 
voting" is required to authorize the issue of bonds, notes or 
scrip under authority of the act here in question. The correct- 
ness of this view appears from the fact that it is expressly 
provided by general law (R. L., c. 27, § 21) that where a city 
accepts by a vote of two thirds of the legal voters an act to 
supply it with water, " a vote of the majority or the members 
of each branch of the city council" is sufficient to authorize the 
issue of bonds. By this statute it is recognized that in cases 
not within this exception a vote "of two thirds of all the mem- 
bers of each branch of the city council" or "of two thirds of 
the voters present and voting at a town meeting," as the case 
may be, is necessary. Cf. St. 1876, c. 19. 



424 OPINIONS OF THE ATTORNEY-GENERAL. 



Attorney-General — Duties — Limit of Time — Constitu- 
tional Law — Referendum — Matter of Local Self- 
government. 

The senate has no authority to fix a limit of time within which the Attorney-General 
is to perform his duties or any of them. 

A provision in a proposed bill that "this act shall be submitted to the qualified 
voters of the Commonwealth at the- next State election, in answer to the 
question, ' Shall a law enacted by the General Court of the year 1911 relative 
to the development of the Port of Boston and authorizing the expenditure of 
$9,000,000 for that purpose, be accepted' . . ." does not fall within the excep- 
tion permitting a referendum in matters of local self-government, and would, 
therefore, be unconstitutional. 

To the I have the honor to transmit herewith mv opinion in re- 

teenate. _ ^ '■ 

juf ^13 sponse to the following order to the Honorable Senate, dated 

^^^' July 12, 1911: — 

Ordered, That the Attorney-General be requested to furnish to the 
Senate forthwith his opinion on the following question: Wliether the 
following pending amendment of the Senate BiU relative to the develop- 
ment of the port of Boston (printed as Senate, No. 570), referring the 
measure by referendum to the voters of the Commonwealth, is constitu- 
tional, to wit: striking out section 19 and inserting in place thereof the 
follo\snng new section: — "Section 19. This act shall be submitted to 
the quahfied voters of the commonwealtli at the next state election in 
answer to the question ' Shall a law enacted by the general court of the year 
nineteen hundred and eleven relative to the development of 
the port of Boston and authorizing the expenditure of nine 
million doUars for that purpose be accepted?' If a majority 



VES. 



of the voters voting thereon vote in the affirmative, this act shall there- 
upon take effect; otherwise it shall be null and void." 

The form of the order compels me to respectfully remind the 
Honorable Senate that it has no authority to fix the limit of 
time within which the Attorney-General shall perform his duties 
or any of them. Therefore, so much of the order as requires 
my opinion forthwith I respectfully disregard. INIy desire, how- 
ever, to assist the Honorable Senate in the performance of its 
duties, as well as the deference I owe that honorable body, has 
caused me to give attention to the question submitted as early 
as I could consistently with the other duties of my office. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 425 

In my opinion the proposed referendum as set forth in said 
order is unconstitutional within the principles now well estab- 
lished in this Commonwealth, as stated in the Opinion of 
the Justices, 160 Mass. 586, and in the decisions and discussions 
in the following cases: Brodbine v. Revere, 182 Mass. 598; 
Graham v. Roberts, 200 Mass. 152; and Wyeth v. Cambridge 
Board of Health, 200 Mass. 474; and in the opinion of my 
learned predecessor, Attorney-General Malone, to the com- 
mittee on the judiciary, under date of April 3, 1907 (ante, 
p. 88). While the proposed legislation in some respects may 
be said to be a statute of local concern, it appears that the 
expenses are to be borne by the State at large, and the 
referendum is directed to the voters of the State at large. 
Said referendum, therefore, does not come within the exception 
permitting a referendum in matters of local self-government, 
within the meaning of said decisions. 



Attorney-General — Opinion — Statement of Facts — 
Monopolies — Public Policy — Legislature. 

The Attorney-General is not required to express an opinion upon any case or to 
take any other action relative thereto upon the request of a State officer, 
board or commission unless sufficient facts are stated to enable him to come 
to a definite conclusion in the premises. 

The determination of the attitude of the Commonwealth toward monopolies is 
primarily a function of the Legislature, and does not fall within the scope 
of the duties of the Attorney-General. 

To vour letter of July 3, 1911, I have been giving as care- xothe 

"• '^ 1 (• • Governor. 

ful and earnest consideration as the contents thereof permit, mi 



In it you make the following statements : — 

Complamts are current that the prosperity of the shoe industry in 
' this Commonwealth has been seriously impaired and is further threatened 
by the existence of a monopoly in shoe machinery. . . . 

It is represented that practically all the shoe machinery in use in Massa- 
chusetts is owned by a single corporation which, though organized under 
the laws of another State, has its principal office here. It is practically 
impossible for any shoe manufacturer to buy his machinery or any part 
of it. He can secure it only upon lease and upon terms arbitrarily fixed 



July u. 



426 OPINIONS OF THE ATTORNEY-GENERAL. 

by this corporation, which is said to be without competition in the manu- 
facture of shoe machinery. The company has since the date of its organi- 
zation, by various methods, acquired or destroyed the business of every 
competitor. It accordingly now has a complete and absolute monopoly 
of the entire field. . . . 

Complaints are rife that the corporation has used its power to the 
disadvantage of our local industry. It has enforced oppressive terms 
and has discriminated against locaUties, and m a measure has discriminated 
against m.anuf acturers here in favor of those located in other States. There 
is a well-founded current belief that the arbitrary restrictions imposed 
by this monopoly are responsible for the depression of the industry of 
which our manufacturers are beginning seriously to complain. 

I call your attention to the fact that within the year last past, when 
its monopoly was threatened by competition, this corporation acquired 
the machines, the manufacturing plants and the patents of a prominent, 
independent shoe machinery manufacturer. If this transaction could 
have been prevented it would have afforded distinct relief and protection 
against the present situation of absolute monopoly and autocratic control. 
It is of importance now to determine whether the current belief as to its 
invalidity is justified, and if so, what remedy may be applied. 

You then proceed as follows : — 

Assuming the facts to be as outhned above, I respectfully request 
your opinion upon the following points : — 

1. Is the existing law sufficient to enable ypu, as the chief law officer 
of the Commonwealth, successfully to accomplish the destruction of 
this monopoly, or the reUef in any measure of the shoe industry of the 
Commonwealth from the power of this corporation absolutely to control 
and dominate our shoe manufacturers ? 

2. Was the acquisition by this corporation of the shoe machinery, 
the manufacturing plants and the letters patent of an independent manu- 
facturer in September, 1910, in \'iolation of any existing law of the Com- 
monwealth ? 

3. If, in your opinion, the existing law is insufficient to give relief, 
what other or further legislation is in your opinion necessary or expedient 
to curb or break the power of this alleged monopoly ? 

From a legal standpoint, and as a basis for an opinion that 
will be of any value whatever, I am unable to find in your letter 
anything that permits or enables me to come to any conclusion. 
It contains no statement of facts or evidence such as is neces- 
sary as a basis for legal consideration or action. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 427 

However, the deference that I owe to the office of the Chief 
Executive of this Commonwealth has led me to consider said 
letter in a broad and general way as a request from you for 
(1) a statement as to existing law, and (2) a statement as to 
the necessity or expediency of further legislation concerning the 
subject of manufacturing monopoly in this Commonwealth. So 
far as I am able I advise you, therefore, along the lines of these 
inquiries. 

As io Existing Law. — There are now upon the books three 
statutes which bear upon the subject of monopolies.^ These 
are R. L., c. 56, § 1; St. 1907, c. 469; and St. 1908, c. 454. 
There are also important common law principles, a considera- 
tion of which would be essential to any complete statement of 
the law of monopolies. Unless, however, it appears that no 
reUef can be obtained under the statutes cited, it is unnecessary 
to consider whether relief could be obtained apart from these 
statutes. 

R. L., c. 56, § 1, prohibits making "it a condition of the sale 
of goods, wares or merchandise that the purchaser shall not sell 
or deal in the goods, wares o